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LARGE-SCALE VICTIMISATION AS A POTENTIAL SOURCE OF TERRORIST ACTIVITIES

NATO Security through Science Series This Series presents the results of scientific meetings supported under the NATO Programme for Security through Science (STS). Meetings supported by the NATO STS Programme are in security-related priority areas of Defence Against Terrorism or Countering Other Threats to Security. The types of meeting supported are generally “Advanced Study Institutes” and “Advanced Research Workshops”. The NATO STS Series collects together the results of these meetings. The meetings are co-organized by scientists from NATO countries and scientists from NATO’s “Partner” or “Mediterranean Dialogue” countries. The observations and recommendations made at the meetings, as well as the contents of the volumes in the Series, reflect those of participants and contributors only; they should not necessarily be regarded as reflecting NATO views or policy. Advanced Study Institutes (ASI) are high-level tutorial courses to convey the latest developments in a subject to an advanced-level audience. Advanced Research Workshops (ARW) are expert meetings where an intense but informal exchange of views at the frontiers of a subject aims at identifying directions for future action. Following a transformation of the programme in 2004 the Series has been re-named and reorganised. Recent volumes on topics not related to security, which result from meetings supported under the programme earlier, may be found in the NATO Science Series. The Series is published by IOS Press, Amsterdam, and Springer Science and Business Media, Dordrecht, in conjunction with the NATO Public Diplomacy Division. Sub-Series A. B. C. D. E.

Chemistry and Biology Physics and Biophysics Environmental Security Information and Communication Security Human and Societal Dynamics

Springer Science and Business Media Springer Science and Business Media Springer Science and Business Media IOS Press IOS Press

http://www.nato.int/science http://www.springeronline.nl http://www.iospress.nl

Sub-Series E: Human and Societal Dynamics – Vol. 13

ISSN: 1574-5597

Large-Scale Victimisation as a Potential Source of Terrorist Activities Importance of Regaining Security in Post-Conflict Societies

Edited by

Uwe Ewald Max Planck Institute for Foreign and International Criminal Law, Freiburg, Germany and International Criminal Tribunal for the former Yugoslavia (ICTY), The Hague, the Netherlands

and

Ksenija Turković Faculty of Law, University of Zagreb, Croatia

Amsterdam • Berlin • Oxford • Tokyo • Washington, DC Published in cooperation with NATO Public Diplomacy Division

Proceedings of the NATO Advanced Research Workshop on Large-Scale Victimization Due to Protracted Conflicts as a Potential Source of Terrorist Activities, and Regaining Security in Post-Conflict Societies Zagreb, Croatia 23–26 September 2004

© 2006 IOS Press. All rights reserved. No part of this book may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without prior written permission from the publisher. ISBN 1-58603-694-7 Library of Congress Control Number: 2006936510 Publisher IOS Press Nieuwe Hemweg 6B 1013 BG Amsterdam Netherlands fax: +31 20 687 0019 e-mail: [email protected] Distributor in the UK and Ireland Gazelle Books Services Ltd. White Cross Mills Hightown Lancaster LA1 4XS United Kingdom fax: +44 1524 63232 e-mail: [email protected]

Distributor in the USA and Canada IOS Press, Inc. 4502 Rachael Manor Drive Fairfax, VA 22032 USA fax: +1 703 323 3668 e-mail: [email protected]

LEGAL NOTICE The publisher is not responsible for the use which might be made of the following information. PRINTED IN THE NETHERLANDS

Large-Scale Victimisation as a Potential Source of Terrorist Activities U. Ewald and K. Turković (Eds.) IOS Press, 2006 © 2006 IOS Press. All rights reserved.

v

Preface This book presents a compilation of presentations to the Advanced Research Workshop (ARW) on “Large-Scale Victimisation due to Protracted Conflicts as a Potential Source of Terrorist Activities – Importance of Regaining Security in Post-Conflict Societies,” which was held in September 2004. The authors deal with a subject that is, unfortunately, as significant today as it was two years ago. Sadly, this continuing relevance seems to confirm the views of the German radical pacifist Kurt Tucholsky, who stated in response to the atrocities and sufferings of WWI: “But men never ever learnt from history, and they will not do so in the future. Hic Rhodus! ” 1 Recent events in Iraq, the Middle East, East Timor or the Democratic Republic of Congo, and possible links regarding issues of terrorism, raise the question what criminological and victimological research offers in assisting to break vicious spirals of ignorance of gross human rights violations and the immense human sufferings in the context of armed conflicts and terrorism. We are afraid that the answer to this question still remains open. Yet, the spirit and the result of the workshop confirm the substantial willingness to ‘learn’ from the past by critically reviewing large-scale victimisation arising out of protracted conflicts in order to better understanding the necessary prerequisites for enduring peace-making in post-conflict societies and to anticipate and suggest approaches to healing victimising effects. From the outset, the notion of an open approach to the topic of the workshop was strongly supported by Mr. Carvalho Rodrigues, the Nato Programme Director, Security-Related Civil Science & Technology. Ultimately, funding for the ARW project was generously provided by the Nato Programme. This allowed the workshop to be organised at the University of Zagreb together with the Max Planck Institute for Foreign and International Criminal Law, Freiburg, i.Br., Germany. The contributions contained in the book cover a wide variety of approaches to large-scale victimisation in armed conflicts and post-conflict societies from different academic and applied disciplines. However, one of the interesting discoveries at the workshop was how closely related all these different perspectives were and that the future discourse on large-scale victimisation should overcome the divide between the various concepts and approaches in order to provide more holistic, and therefore more effective, proposals. It is now up to the academic community, the field of applied human rights work, international criminal justice and the interested public at large, to digest and reflect on

1

Kurt Tucholsky, ‘Vorwärts -!’, Glossen und Essays, Gesammelte Schriften (1907–1935), Die Weltbühne, 05.01.1926, Nr. 1, p. 1. (1926). Original quotation: »Denn noch niemals haben Menschen aus der Geschichte gelernt, und sie werden es auch in Zukunft nicht tun. Hic Rhodus!« (translated by editors).

vi

the observations made by the contributions presented in this book, particularly insofar as they identify possible solutions and the need for further research on issues related to large-scale victimisation. In any case, addressing these issues appears essential in enhancing learning in the field of large-scale victimisation and preventing further massive suffering. The Editors, September 2006

vii

Contents Preface

v

I. Large-Scale War Victimization and Terrorism Magnitudes and Focus of Terrorist Victimization Alex Schmid International Terrorism: Large-Scale Victimization Zvonimir Paul Šeparović Regaining Trust and Confidence in Post-Conflict Societies as a Way to Prevent Terrorism Hans-Jörg Albrecht What Victimology Has to Offer in the Fight Against Terrorism Ksenija Turković

3 20

30 54

II. General Understanding and Victimological Research of Large-Scale Victimization Between Sacrification and Victimization: On Political Semantics and Its Strategic Functions Karsten Fischer Victimization in Wars – A Framework for Further Inquiry Ernesto Kiza Protracted War, Terrorism and Mass Victimization: Exploring Victimological/ Criminological Concepts and Theories to Address Victimization in Israel Edna Erez

67 73

89

The Self-Traumatized Perpetrator: From Vietnam to Abu Ghraib Allan Young

103

Researching War Victimization Through the Deconstruction of Organized Crime Biljana Simeunović-Patić and Vesna Nikolić-Ristanović

112

Hate Crimes and Their Practical Use in Risk Assessment and Terrorism Prevention Anna-Maria Getoš

125

III. Role of the International Criminal Justice from the Perspective of Victims The Fight Against Impunity and the Establishment of the International Criminal Court Irune Aguirrezabal Quijera

137

viii

Large-Scale Victimization and Small-Scale Trials: Selection Criteria and the Use of Sampling Techniques in the Investigation of International Crimes Xabier Agirre Aranburu

151

Large-Scale Victimisation and the Jurisprudence of the ICTY – Victimological Research Issues – Uwe Ewald

171

Experiences of the Victims and Witnesses Section at the I.C.T.Y. Wendy Lobwein

197

Genocide’s Orphan: The 1979 Trial of Pol Pot and Ieng Sary Howard J. De Nike

208

IV. Victim Assistance and Restorative Justice in Post-Conflict Societies How to Deal with Mass Victimization and Gross Human Rights Violations. A Restorative Justice Approach Elmar G.M. Weitekamp, Stephan Parmentier, Kris Vanspauwen, Marta Valiñas and Roel Gerits Mental Health in the Wake of War and Terrorism: Lessons from Humanitarian Experience in Victim Rehabilitation Claire Colliard

217

242

V. Necessity to Reconstruct War-Affected Communities in Order to Counter-Terrorism Rebuilding War-Affected Societies: Implementing the ‘Responsibility to Protect’ Agenda Alistair D. Edgar Post-Conflict Peace-Building as Terrorism Prevention Ivan Šimonović Barriers to Social Reconstruction of Communities in the Aftermath of Organized Violence Dean Ajduković

253 260

269

The Role of Religion and Spirituality in Post-Conflict Reconstruction Phyllis Fierro Robinson

278

Author Index

299

I. Large-Scale War Victimization and Terrorism

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Large-Scale Victimisation as a Potential Source of Terrorist Activities U. Ewald and K. Turković (Eds.) IOS Press, 2006 © 2006 IOS Press. All rights reserved.

3

Magnitudes and Focus of Terrorist Victimization1 Alex SCHMID* 2

Abstract : Terrorist victimization is a matter of significant concern in the age of “mass terror”. The dimensions of terrorist victimization are explored in this article through the consideration of the target audiences of terrorism, the characteristics of terrorist victims, the symptoms experienced by victims, the nature of focused and indiscriminate terrorist victimization, the rights of victims and the services that focus on supporting victims of terrorism.

I. Introduction

When we talk about ‘Magnitudes of Victimization’, there is a qualitative and a quantitative dimension. There is the individual victim’s emotional and physical pain, the magnitude of which is difficult to fathom. Then there are the more measurable social dimensions of victimization. I will present you with a bit of both. Since 9/11 no one will dispute the magnitude of terrorism victimization. On one fateful morning some three thousand people from more than 80 nations died in this multiple simultaneous assault by Al Qaeda. Indeed, we have seen quite a number of high-casualty incidents in the last sixteen years. Table 1: High-Casualty Terrorist Incidents3

1988 1993 1995 1996 1996 1998 1999 2001 2002 2004 2004

Pan Am # 103 Truck bomb, World Trade Center

270 dead 6 dead and 1,042 injured (goal was 50,000 dead) Truck bomb, Oklahoma City 168 dead and 500 injured Truck bomb, Sri Lanka 90 dead and 500 injured Truck bomb, Saudi Arabia 19 dead and 515 injured Truck bomb at U.S. Embassy, Kenya 212 dead and 4,022 injured Bombs in two Moscow apartment blocks ca. 200 dead World Trade Center, Pentagon, and 3,062 dead Pennsylvania Bali 202 dead, 300 injured Madrid 191 dead and 1,800 injured Beslan > 344 dead, ca. 600 injured

Yet terrorists – at least non-state terrorists – were not always so bloodthirsty. Indeed, little more than 25 years ago, Brian Jenkins, an American expert, said that “[t]errorists want a lot of people watching, not a lot of people dead”. Originally, the Russian terrorists of the late 19th century hailed the new method of violence as more humane than civil war, since the terrorist’s surgical attacks would hit only the *

Terrorism Prevention Branch, United Nations Office on Drugs and Crime, Vienna, Austria.

4

A. Schmid / Magnitudes and Focus of Terrorist Victimization

most repressive members of the Czarist state. They considered the low casualty rate of terrorism as one of the advantages of what at the time was called “the Russian method” or “Propaganda by the Deed”.4 The relative selectivity of insurgent terrorism in the 19th century has, since the late 20th century, given ways to more indiscriminate violence. Times have changed and we have “progressed” - or perhaps “regressed” - from individual terror to “mass terror”. Since the terrorism of the late 19th century, there has been an erosion of moral inhibitions. While an anarchist terrorist would not throw a bomb against the police chief if he was in the company of his wife and children, today – as we saw in Beslan – children are explicitly targeted. They were targeted not despite but because of their innocence which presumably enhances, in the reasoning of the perpetrators, the terrorists’ bargaining power. Such acts of terrorism are very serious crimes; there can be no doubt about that. Yet at the same time there is often a political dimension to terrorist crimes – a dimension claimed by “terrorists” but increasingly rejected by most if not all states. However, terrorist victimization differs from criminal victimization with no political connotations. What distinguishes a terrorist act from a criminal act of violence is that the direct victim is often not the ultimate target of the violence. The victimization serves as an amplifier to convey a message. To quote Ted Kaczynsk, the so-called Una-bomber, a Harvard-educated American terrorist protesting against “dehumanizing technology”: “In order to get our message before the public with some chance of making a lasting impression, we’ [ha]ve had to kill people”.5 In fact, “the public” is but one of several terrorist audiences: Table 2: Ten Terrorist Audiences

1. The adversary/-ies of the terrorist organization (usually one or several governments); 2. The constituency/society of the adversary/-ies; 3. The targeted direct victims and their families and friends; 4. Others who have reason to fear that they might be the next targets; 5. “Neutral” distant publics; 6. The supporting constituency of the terrorist organization; 7. Potential sympathetic sectors of domestic and foreign publics; 8. Other terrorist groups rivalling for prominence; 9. The terrorist and his organization; 10. ….and, last but not least, the media. Terrorism has been defined in many ways but the oldest definition, an ancient Chinese saying, encapsulates the central idea: “Kill one, [to] frighten ten thousand”. The public production of atrocities to capture and affect specific target groups and/or to impress mass audiences sharing victim characteristics or concerns, is what matters for the terrorist. If the target audience pays attention to the grievances and demands of terrorists or undergoes terror or panic, terrorists have reached an important goal. When the terrorist group opposes the state, it often uses the public, or sections thereof, as victims. Terrorists like to think of themselves as “fighters” or “soldiers” and often call their organization an ‘army’. Yet they are not soldiers. In war, armies attack armies. If unarmed civilians are deliberately targeted, soldiers who do so become war criminals. To produce atrocities in war is bad enough. To produce atrocities without a war, is even worse - yet that is exactly what terrorists do. They do not care about the direct victims; they victimize them for its effect on third parties. Successful victimization of sectors of society signals to the public at home and abroad that the state cannot protect them effectively. Depending on the goals of the terrorist - there are usually three: propaganda, coercion, or intimidation - a tar-


5

get of attention, a target of demands or a target of terror is primarily addressed through terrorist victimization. Human beings killed, injured, kidnapped or taken hostage serve as message generators and bargaining tools to the terrorist.6 Sometimes this is done in so-called single-phase incidents: one or several people are demonstratively and provocatively killed by gunfire, bombing or arson and the threat of more such atrocities hangs in the air. In dual-phase incidents the final outcome is also left hanging in the air: people are kidnapped and brought to a secret location, or they are kept hostage in a known location, as in a hijacked aircraft, and a war of nerves sets in as terrorists attempt to force the authorities to bargain for the lives of those in the hands of the terrorists. One can make a typology of primary (direct) and secondary (indirect) victims of terrorism that might look like this: Table 3: Primary (Direct) Victims of Terrorist Acts or Campaigns

1. Those who are killed by terrorist kidnappers, hostage-takers, gunmen or bombers; 2. Those who are injured, mutilated or mentally tortured by terrorists but are ultimately released or liberated; 3. Those who are wounded or die in a counter-terrorist rescue operation at the hands of terrorists or armed first responders; 4. Those who become mentally or physically handicapped or die (suicide) in a causal sequel to one or several terrorist events in which they were involved or of which they were direct witnesses. Beyond the immediate victims, there are what one could call “secondary victims”. Table 4: Secondary (Indirect) Victims of Terrorist Acts and Campaigns

1. Those close to persons in the four categories of immediate and direct victims: family, dependents, friends and colleagues; 2. Those whose names appear on ‘death lists’; 3. Those who have otherwise a well-founded reason to fear that they might be a victim in the future; 4. Those first responders to acts of terrorism who become traumatized and experience “burn out”. 5. Those who experience income loss or property damage due to acts of terrorism; 6. Those whose normal lifestyle is changed by terrorist threats and counter-terrorist measures. These two lists are not complete and the categories are not exclusive. However, these ten categories of terrorist victims suggest that even a broad definition of victims as we find in the United Nations General Assembly Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power might not be broad enough. Table 5: Definition of “Victim” in the UN General Assembly Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (1985) “Victims” = “persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative within Member States, including those laws proscribing criminal abuse of power.(...) The term “victim” also includes, where appropriate, the immediate family or dependents of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization”. 7

6


Terrorist crimes take a physical, psychological, social, political and economic toll on primary and secondary victims and society as a whole. What makes terrorism so complex is that the terrorist actor can play simultaneously to different target audiences. With one or a few bold acts of violence the terrorist groups can move (as in kidnappings) or remove (as in a bombing) the direct target of violence, while also freezing and immobilizing further targets of terror (those who have reason to fear they might be next), impacting on a target of demands (e.g. a government) and manipulating targets of attention (various concerned audiences). Depending on the way the primary victims of terrorist violence are linked to secondary audiences, different objectives can be achieved. By activating an interplay between various audiences, terrorists can create multiple follow-up or spin-off effects which can serve a variety of purposes.8 The possibility of a manipulation of several audiences by public victimization of a few primary victims in a media-rich environment has turned terrorism from a marginal mode of protest, blackmail and intimidation into a major form of psychological warfare. II. Magnitudes of terrorist victimization The assessment of the full magnitude of terrorist victimization is a terrain that is still largely uncharted. While terrorist perpetrators are the topic of hundreds of books and thousands of articles, the terrorists victims have less often been studied empirically.9 For most of the ten categories of terrorist victims mentioned just a moment ago, we do not have good data. We know relatively well what the psychological effects are on those who live through a terrorist hostage-taking or hijacking. The immediate victim experiencing terror - an extreme form of anxiety caused by the surprise and shock of a sudden life-threatening situation10 manifests four distinct psychological responses in a time sequence: Table 6: Four Phases during Terrorist (Hostage/Hijacking/Kidnapping) Victimization

Phase I: Victim experiences shock, disbelief, denial and delusion. There is paralysis of action and denial of sensory impressions; Phase II: The victim feels hopelessly entrapped. There is a paralysis of effect, a terrorinduced, pseudo-calm, noticeably detached behaviour – ‘frozen fright’. The isolated and powerless victim takes stock of his/her life and/or keeps him/herself busy in an attempt to cope if the victimization is prolonged; Phase III: After the acute stage is over, a state of traumatic psychological infantilism sets in with most victims; adaptive response behaviour first learned in early childhood resurfaces: compliance, appeasement, submission and ingratiation towards the terrorists takes place. Empathy and sympathy with the victimizer tends to occur; Phase IV: If terror continues unabated, pathological transference can set in. Victims no longer focus on actual death threat but begin to feel that their very lives have been given to them by the terrorist. A process of conversion might set in due to identification of the victim with the aggressor.11 In phases III and IV some of the direct victims in a hostage incident might suffer from the regressive ‘Stockholm Syndrome’ and identify with the hostage taker and even end up falling in love with him or her as in the original 1973 bank robbery incident in Sweden that gave this phenomenon its name.12 The conversion of the direct victim might go even fur-


7

ther: he or she might join the terrorist group, as was the case with the millionaire heiress Patty Hearst in the 1970s when she became part of the Symbionese Liberation Army.13 Yet far more serious from an etiological point of view is a finding derived from longitudinal research conducted by Rona Fields in Northern Ireland and Israel. It indicates that crossovers in roles from victim to terrorist are not so exceptional. To quote Rona Fields: “After a decade of examining torture victims and hostages from several different countries and as many wars, after eight years of testing children aged 6 though 15 growing up in conditions of constant violence, I have been led to conclude that “little victims into big terrorists grow”.14

How widespread such a cross-over from victim to terrorist is, I think, still an open question. Especially in long-running conflicts it can also be difficult to clearly separate victims and perpetrators from the start - which poses methodological problems. Once a victim has survived a terrorist attack - what does it mean to have been a victim of terrorism? Those who are killed cannot tell us but here are some symptoms which most survivors experience. Table 7: Victims of Terrorism15

Fear, free-floating anxiety, phobias; Grief; Shock, apathy, numbness; Survivor guilt, self-blame; Anger, hostility, rage, resentment, resignation; Depression, lack of hope, alienation and loneliness; Isolation, interpersonal difficulties; Physical symptoms of distress: insomnia, startle reactions, nightmares; Inability to concentrate, memory lapses, sexual problems; Panic; Inability to Resume Normal Activity. A number of these symptoms are usually referred to as Post-Traumatic Stress Disorders (PSTD), which are commonly associated responses to traumas.16 Not all who have experienced terror show these symptoms to the same degree. The degree of terror as well as the resilience of the individual survivor play a role. I do not want to enter too deeply into the terrain of individual or collective psychology,17 despite the fact that “terror” is, first and foremost, a shocked and sometimes paralyzed state of mind, caused by sudden, unexpected exposure to a man-made, extra-normal lifethreatening situation. The fact that the individual experience of terror is contagious to direct onlookers and, to a lesser extent, also to those who witness terror through the mass media, is due to an identification process with the victim. Most of the observers care about the victim of terrorism in a process of identification (“it could have been me”) but some also identify with the terrorist aggressor.18 Without such identification with the aggressor, Osama Bin Laden and his likes could not have become so popular in certain parts of the world. Those who identify with the aggressor typically try to shift the blame onto the victim. One terrorist leader (George Habash, leader of the Popular Front for the Liberation of Palestine) said: “There are no innocent victims. All share responsibility for society’s wrongs. No one is innocent.”19 Sometimes there is a callous indirect acknowledgment of victimization, as in the case of a terrorist who said that, “if necessary, we create unnecessary victims”.20 Some Islamist

8


terrorists “solve” the guilt problem by claiming that innocent children victimized by them go directly to heaven. Of course, there is not much responsibility and concern to be expected from those fanatics who throw their own lives away almost as easily as those of others whom they do not even know. We are dealing here with irrational and even absurd sides of human psychology. The fact that the victimization often does not “make sense” – even from the point of view of advancing the terrorists’ cause – makes coping even more difficult for victims and survivors. Let me turn to some empirical data. Unfortunately, some of it is somewhat dated. Terrorism tends to produce an exaggerated fear of victimization. Even in a terrorist hotspot like Northern Ireland before the Good Friday Agreements of 1998, the death toll never exceeded the number of people killed in traffic accidents. In order to maintain perspective, the fear of terrorist victimization should be balanced against other risks. Table 8: Risk of Death from Various Sources21 (Annual average per million people)

Political Violence

Homicide

Traffic Accidents

Northern Ireland

97.6

11.9

179.0

Italy

0.6

33.7

172.3

Uruguay

1.1

68.5

68.6

Germany

0.1

40.4

251.2

Some people want to “downplay” the magnitude of terrorism, for example, to protect the tourism industry, yet others wish to magnify the threat, for reasons which might be linked to contrary commercial interests. Yet one can only distinguish between threat perception and “real” threat if one has some empirical yardstick. There exist only a few data sets of terrorism and they are often not really comparable, due to different working definitions. Some cover only international terrorism, others cover also national terrorism, some cover lesser forms of political violence as well, while others combine terrorist and guerrilla attacks. A Japanese and an American database, for instance, present us with these sets of figures (it should be noted that the Japanese database also includes guerrilla attacks): Table 9: Terrorist (and Guerrilla) Attacks, 1998 – 2003/04, according to Japanese (PSIA) and US databases (MIPT)22

Year

No. of Incidents

No. of Fatalities

PSIA

MIPT

PSIA

MIPT

1998

2,378

1,265

15,103

2,149

1999

2,597

1,148

13,744

822

2000

3,182

1,138

14,868

776

2001

2,535

1,732

12,439

4,643

2002

2,734

2,645

10,318

2,709

2003

3,213

1,776

7,476

1,946

2004 (until Sept.)

n.d.

596

n.d.

1,446


9

These figures indicate that, despite the large number of attacks, the average number of fatalities is lower than one would estimate based on a number of high-casualty incidents which are foremost in our minds. If we look at the average number of people killed, according to the Japanese and American databases for the period 1998 – 2003/04, we arrive at these statistics: Table 10: Average number of Fatalities in Terrorist Incidents, 1998 – 2003/0423

PSIA

MIPT

1998

6.4

1.7

1999

5.3

0.7

2000

4.7

0.7

2001

4.9

2.7

2002

3.8

1.0

2003

2.3

1.1

2004 (until Sept.)

no data

2.4

Year

III. Focus of terrorist victimization Terrorist attacks come in two main categories. Table 11: Focused and Indiscriminate Terrorist Victimization

Focused terrorism: discriminately chosen victims, usually part of the target group that is the principal addressee of the terrorist’s message, coercion or intimidation; and

Indiscriminate terrorism: the random victim who happens to be in the wrong place at the wrong time and who is not specifically selected for his or her individual characteristics.

In reality, the distinctions are often less neat. In Colombia, for instance, terrorists set up roadblocks and stop cars and busses. They then abduct those who look rich enough for ransom by their families and let the others go. They call this mix of indiscriminate and focused victimization ‘miracle fishing’. The first type of victim is usually involved, though often only passively, in the conflict between the terrorist group and its adversary. If he or she is a high-profile political target, the killing might become so focused that it is in fact an assassination. An assassination can cause shock and grief, but due to its unique nature, rarely terror. The second type of victim – the chance victim – is generally not even remotely connected to the conflict issue. He or she is not prepared for the plight and his or her defencelessness and the element of unpredictability and randomness in victim selection gives terror part of its power – a power enhanced manifold by the media’s display and replay of acts of victimization.24 Let us now look at the people who are the focus of terrorist victimization. According to the database of the National Memorial Institute for the Prevention of Terrorism (MIPT), in Oklahoma, the following is the background of victims of terrorism in the period 2001 – 2004.

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A. Schmid / Magnitudes and Focus of Terrorist Victimization Table 12: Terrorist Incidents by Principal Targets, 11/09/2001 – 09/17/200425

Target

Incidents

Fatalities

Private Citizens & Prop- 1,600 (30%) erty Government 1,167 (22%)

2,533 (40%)

Business

475 (9%)

254 (4%)

Police

363 (6.8%)

557 (8.8%)

Other

315 (6%)

270 (4.3%)

Unknown

291 (5.5%)

116 (2.8%)

Transportation

258 (4.9%)

576 (9.1%)

Fig- 126 (2.3%)

259 (4.1%)

Religious ures/Institutions Tourists

1,114 (17.6%)

29 (0.5%)

214 (3.4%)

Diplomatic

96 (1.8%)

124 (1.9%)

Journalists & Media

102 (1.9%)

40 (0.6%)

Military

36 (0.6%)

84 (1.3%)

Total

5,290

6,322

Each terrorist group has its own focus of victimization. Al Qaeda, for instance, has a higher preference for diplomatic targets (the embassy bombings in East Africa in August 1998). Table 13: Targets of Al Qaeda (21 incidents with 3,539 Fatalities and 6,327 Wounded)26 Targets

Percentage

Government

23%

Diplomatic

19%

Airports & Airlines

9%

Religious Figures/Institutions

9%

Business

9%

Other

9%

Tourists

4%

Private Citizens & Property

4%

Utilities

4%

Maritime

4%

If we compare the MIPT data with that of a British database, we find again quite different figures.


11

Table 14: The Background of Victims of Terrorist Attacks27

For the roughly comparable period (1999 – 2003) a British database puts the number of government targets at 6% and the number of military and police targeted at 17 and 7% respectively – much different from the 22% to 0.6% and 6.8% respectively in the American MIPT database just cited. The high share of military and police victims in the British database raises the issue of definition. Should attacks on armed security forces be labelled terrorism? Attacks on military and police are usually more characteristic of guerrilla and other insurgent groups. If terrorists would only focus on those targets, they would be more legitimate insurgents than when they attack civilians. This poses the question: when is a group a terrorist group and when is it a guerrilla group or a resistance force? There is no consensus in the United Nations about this question, which is still debated in the Ad Hoc Committee on Terrorism in New York. The draft interim definition, which has been reached in the negotiations about a comprehensive convention against international terrorism, reads as follows: Table 15: UN Draft Definition of Terrorism28

UN Ad Hoc Committee on Terrorism: Informal Texts of Art. 2 and 2 bis of the draft Comprehensive Convention, prepared by the Coordinator Article 2 1. Any person commits an offence within the meaning of this Convention if that person, by any means, unlawfully and intentionally, causes: (a) Death or serious bodily injury to any person; or

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(b) Serious damage to public or private property, including a place of public use, a State or government facility, a public transportation system, an infrastructure facility or the environment; or (c) Damage to property, places, facilities, or systems referred to in paragraph 1 (b) of this article, resulting or likely to result in major economic loss, when the purpose of the conduct, by its nature or context, is to intimidate a population, or to compel a Government or an international organization to do or abstain from doing any act. Let me conclude by focusing on the rights of victims and our obligations to them. IV. What are the rights of victims? General Assembly Resolution 42/34, which was adopted unanimously, contains seven principles which are relevant to victims of terrorism and which become “rights” if implemented in national legislation. Table 16: Victim Rights (UN 1985)29

1. The right to be treated with respect and recognition; 2. The right to be referred to adequate support services; 3. The right to receive information about the progress of the case; 4. The right to be present and to be involved in the decision-making process; 5. The right to counsel; 6. The right to protection of physical safety and privacy; 7. The right to compensation, from both the offender and the State. These principles/rights presumably reflect the general needs of victims; they are not specific to terrorism. The “Best Practice” requirements of a victim service program should, according to UN guidelines, incorporate also the following elements: Table 17: Elements of a Victim Service Program30

1. Crisis intervention; 2. Counselling; 3. Advocacy; 4. Support during investigation of a crime; 5. Support during criminal prosecution and trial; 6. Support after case disposition; 7. Training for allied professionals on victim issues; 8. Violence prevention and other prevention services; 9. Public education (including awareness raising campaigns) on victim issues. Such a program costs money. Already in 1996 several UN member states called for the establishment of a UN Voluntary Fund for Victims of Terrorism (e.g. Angola, Azerbaijan, India). The government of the Netherlands has proposed the establishment of an international fund for the support of victims of transnational crime. It is, however, not specific to victims of terrorism and – while up and running – it can, due to financial constraints, offer no direct support to individual victims. In November 2004, however, Security Council resolution 1566 established a working group, the tasks of which included “consider[ing] the possibility of establishing an international fund to compensate victims of terrorist acts and their families, which might be financed through voluntary contributions, which could consist in part of assets seized from terrorist organizations, their members and sponsors, and submit[ting] its recommendations to the Council”.31


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With regard to terrorist crimes, a few countries like France and the United States have developed exemplary programs. The French program has been the initiative of a former victim, a survivor of a terrorist attack in Paris in 1986. It is called ‘S.O.S. Attentats’ – S.O.S. Attentats: A French Initiative against Terrorist Victimization.32 Its activities cover a wide area: Table 18: Activities of S.O. S. Attentats:

Provides information and guidance to victims in their dealings with the authorities and the courts; Provides a psychological and social support structure; Gives victims an opportunity to meet other people in the same situation and to draw strength from each other; Provides financial assistance to those in desperate need; Assists victims with medical assessments; Provides support to victims throughout the judicial process, from the initial investigative hearings to the trial; Helps with legal costs.

S.O.S. Attentats has its offices appropriately at the Hotel National des Invalides and is open to all victims and their families. S.O.S. Attentats has the right to file claims for damages in criminal proceedings on behalf of victims of terrorism. In France, claims for damages incurred from terrorist acts can be filled within a ten-year period. Full compensation is payable for personal injury or death caused by an act of terrorism on French soil, and, for French citizens, also outside France. The program is funded by tax revenue and there is no maximum award limit.33 One of the goals of S.O.S. Attentats is to bring to justice all those who order, perpetrate or aid and abet in the commission of terrorist acts. In 2000, it was involved in 25 cases against various sponsors of terrorism. Similar terrorist victim support programs also exist in Colombia, Italy and Israel, the United Kingdom and the United States. V. Concluding Remarks Let me sum up. The fear of a sudden violent death is what gives terrorism its force. “Will I be next?” is the question in everyone’s mind if a community is hit by a campaign of terrorist violence. Terrorists hit a few in a demonstrative way to frighten the many. The murders are mostly de-individualized; almost anybody could be a victim. The anonymity of terrorist killings is an expression of their disrespect for human lives. The most powerful response to this is respect for life and care for victims, so that the moral gap between terrorists and members of the community becomes apparent to all. A community expresses its quality by the solidarity it shows towards the victims in its midst. A cohesive, inclusive community is less likely to face terrorism from inside than one where sub-groups live apart from each other, divided by class, colour, religion, language or origin. That, of course, is of no help against a foreign terrorist group that uses a community as a theatre of victimization. The response to that has to be international solidarity and cooperation.

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APPENDIX I: UN DECLARATION OF BASIC PRINCIPLES OF JUSTICE FOR VICTIMS OF CRIME AND ABUSE OF POWER (1985) The General Assembly, Recalling that the Sixth United Nations Congress on the Prevention of Crime and the Treatment of Offenders recommended that the United Nations should continue its present work on the development of guidelines and standards regarding abuse of economic and political power, Cognizant that millions of people throughout the world suffer harm as a result of crime and the abuse of power and that the rights of these victims have not been adequately recognized, Recognizing that the victims of crime and the victims of abuse of power, and also frequently their families, witnesses and others who aid them, are unjustly subjected to loss, damage or injury and that they may, in addition, suffer hardship when assisting in the prosecution of offenders, 1. Affirms the necessity of adopting national and international measures in order to secure the universal and effective recognition, of and respect for, the rights of victims of crime and of abuse of power; 2. Stresses the need to promote progress by all States in their efforts to that end, without prejudice to the rights of suspects or offenders; 3. Adopts the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, annexed to the present resolution, which is designed to assist Governments and the international community in their efforts to secure justice and assistance for victims of crime and victims of abuse of power; 4. Calls upon Member States to take the necessary steps to give effect to the provisions contained in the Declaration: a) To implement social, health, including mental health, educational, economic and specific crime prevention policies to reduce victimization and encourage assistance to victims in distress; b) To promote community efforts and public participation in crime prevention; c) To review periodically their existing legislation and practices in order to ensure responsiveness to changing circumstances, and to enact and enforce legislation proscribing acts that violate internationally recognized norms relating to human rights, corporate conduct, and other abuses of power; d) To establish and strengthen the means of detecting, prosecuting and sentencing those guilty of crime; e) To promote disclosure of relevant information to expose official and corporate conduct to public scrutiny, and other ways of increasing responsiveness to public concerns; f) To promote the observance of codes of conduct and ethical norms, in particular international standards, by public servants, including law enforcement, correctional, medical, social service and military personnel, as well as the staff of economic enterprises; g) To prohibit practices and procedures conducive to abuse, such as secret places of detention an incommunicado detention; h) To co-operate with other states, through mutual judicial and administrative assistance, in such matters as the detection and pursuit of offenders, their extradition and the seizure of their assets, to be used for restitution to the victims; 5. Recommends that, at the international and regional levels, all appropriate measures should be taken: a) To promote training activities designed to foster adherence to United Nations standards and norms and to curtail possible abuses;


6.

7.

8. 9.

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b) To sponsor collaborative action-research on ways in which victimisation can be reduced and victims aided; and to promote information exchanges on the most effective means of so doing; c) To render direct aid to requesting Governments designed to help them curtail victimization and alleviate the plight of victims; Requests the Secretary-General to invite Member States to report periodically to the General Assembly on the implementation of the Declaration, as well as on measures taken by them to this effect; Also requests the Secretary-General to make use of the opportunities which all relevant bodies and organizations within the United Nations system offer, to assist Member States, whenever necessary, in improving ways and means of protecting victims both at the national level and through international co-operation; Further requests the Secretary-General to promote the objectives of the Declaration, in particular by ensuring its widest possible dissemination; Urges the specialized agencies and other entities and bodies of the United Nations system, other relevant intergovernmental and non-governmental organizations and the public to co-operate in the implementation of the provisions of the Declaration.

Part A. Victims of Crime 1. "Victims" means persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative within Member States, including those laws proscribing criminal abuse of power. 2. A person may be considered a victim, under this Declaration, regardless of whether the perpetrator is identified, apprehended, prosecuted or convicted and regardless of the familial relationship between the perpetrator and the victim. The term "victim" also includes, where appropriate, the immediate family or dependents of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization. 3. The provisions contained herein shall be applicable to all, without distinction of any kind, such as race, colour, sex, age, language, religion, nationality, political or other opinion, cultural beliefs or practices, property, birth or family status, ethnic or social origin, and disability. 4. Victims should be treated with compassion and respect for their dignity. They are entitled to access to the mechanisms of justice and to prompt redress, as provided for by national legislation, for the harm that they have suffered. 5. Judicial and administrative mechanisms should be established and strengthened where necessary to enable victims to obtain redress through formal or informal procedures that are expeditious, fair, inexpensive and accessible. Victims should be informed of their rights in seeking redress through such mechanisms. 6. The responsiveness of judicial and administrative processes to the needs of victims should be facilitated by: a) Informing victims of their role and the scope, timing and progress of the proceedings and of the disposition of their cases, especially where serious crimes are involved and where they have requested such information; b) Allowing the views and concerns of victims to be presented and considered at appropriate stages of the proceedings where their personal interests are affected, without prejudice to the accused and consistent with the relevant national criminal justice system;

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c) Providing proper assistance to victims throughout the legal process; d) Taking measures to minimize inconvenience to victims, protect their privacy, when necessary, and ensure their safety, as well as that of their families and witnesses on their behalf, from intimidation and retaliation. e) Avoiding unnecessary delay in the disposition of cases and the execution of orders or decrees granting awards to victims. 7. Informal mechanisms for the resolution of disputes, including mediation, arbitration, and customary justice or indigenous practices, should be utilized where appropriate to facilitate conciliation and redress for victims. 8. Offenders or third parties responsible for their behaviour should, where appropriate, make fair restitution to victims, their families of dependants. Such restitution should include the return of property or payment for the harm or loss suffered, reimbursement of expenses incurred as a result of the victimisation, the provision of services and the restoration of rights. 9. Governments should review their practices, regulations and laws to consider restitution as an available sentencing option in criminal cases, in addition to other criminal sanctions. 10. In cases of substantial harm to the environment, restitution, if ordered, should include, as far as possible, restoration of the environment, reconstruction of the infrastructure, replacement of community facilities and reimbursement of the expenses of relocation, whenever such harm results in the dislocation of a community. 11. Where public officials or other agents acting in an official or quasi-official capacity have violated national criminal laws, the victim should receive restitution from the State whose officials or agents were responsible for the harm inflicted. In cases where the Government under whose authority the victimizing act or omission occurred is no longer in existence, the State or Government successor in title should provide restitution to the victims. 12. When compensation is not fully available from the offender or other sources, States should endeavour to provide financial compensation to: a) Victims who have sustained significant bodily injury or impairment of physical or mental health as a result of serious crimes; b) The family, in particular dependants of persons who have died or become physically or mentally incapacitated as a result of such victimization. 13. The establishment, strengthening and expansion of national funds for compensation to victims should be encouraged. Where appropriate, other funds may also be established for this purpose, including those cases where the State of which the victim is a national is not in a position to compensate the victim for the harm. 14. Victims should receive the necessary material, medical, psychological and social assistance through governmental, voluntary, community-based and indigenous means. 15. Victims should be informed of the availability of health and social services and other relevant assistance, and be readily afforded access to them. 16. Police, justice, health, social service and other personnel concerned should receive training to sensitize them to the needs of victims, and guidelines to ensure proper and prompt aid. 17. In providing services and assistance to victims, attention should be given to those who have special needs because of the nature of the harm inflicted or because of factors such as those mentioned in paragraph 3 above.


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Part B. Victims of abuse of power 18. "Victims" means persons who, individually or collectively, have suffered harm including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that do not yet constitute violations of national criminal laws but of internationally recognized norms relating to human rights. 19. States should consider incorporating into the national law norms proscribing abuses of power and providing remedies to victims of such abuses. In particular, such remedies should include restitution and/or compensation, and necessary material, medical, psychological and social assistance and support. 20. States should consider negotiating multilateral international treaties relating to victims as defined in paragraph 18. 21. States should periodically review existing legislation and practices to ensure their responsiveness to changing circumstances, should enact and enforce, if necessary, legislation proscribing acts that constitute serious abuses of political or economic power, as well as promoting policies and mechanisms for the prevention of such acts, and should develop and make readily available appropriate rights and remedies for victims of such acts. (This document can be downloaded from the International Victimology Website at http://www.victimology.nl) APPENDIX II: Relevant Internet Sites S.O.S. Attentats: http://www.sos-attentats.org/ United States, Department of State, Office of the Coordinator for Counterterrorism: http://www.state.gov/s/ct/ US National Organization for Victim Assistance: http://www.trynova.org/ US Office for Victims of Crime: http://www.ojp.usdoj.gov/ovc/ Victim Assistance Online - A Comprehensive Resource Centre: http://www.vaonline.org World Society of Victimology: http://www.world-society-victimology.de References 1 This article is based on A.P. Schmid. “Magnitudes of Terrorist Victimization”, in Dilip K. Das and Peter C. Kratcoski (Eds.), Meeting the Challenges of Global Terrorism: Prevention, Control and Recovery, Lanham, Lexington Books, 2003, pp.33-74. 2 The views and opinions expressed in this article are solely those of the author and do not necessarily represent officially positions of the United Nations where the author serves as Senior Crime Prevention and Criminal Justice Officer with the Terrorism Prevention Branch of the UN Office on Drugs and Crime in Vienna, Austria. Address: TPB/UNODC/VIC, Wagramerstrasse 5, A-1400 Vienna, Austria, [email protected]. 3 Adapted from Charles D. Ferguson, William C. Potter et al., The Four Faces of Nuclear Terrorism, Monterey, Center for Nonproliferation Studies, 2004, p.15. 4 Nicholas Morozov, a theorist of Narodnaya Volya (‘The People’s Will’) held: “All that the terroristic struggle really needs is a small number of people and large material means. This presents really a new form of struggle. It replaces by a series of individual political assassinations, which always hit their target, the massive revolutionary movements, where people often rise up against each other because of misunderstandings and where a nation kills off its own children, while the enemy of the people watches from a secure shelter and

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sees to it that the people of the organization are destroyed. The movement punishes only those who are really responsible for the evil deed. Because of this the terroristic revolution is the only just form of revolution”. Nicolas Morozov. Terroristic Struggle. London, 1880; repr. fully in: Feliks Gross. Violence in Politics. Terror and Political Assassination in Eastern Europe and Russia. The Hague, Mouton, 1972, p.106. 5 New York Times, June 1995; cit. Thomas J. Badley. “Defining International Terrorism: A Pragmatic Approach”. Terrorism and Political Violence, Vol. 10, No. 1 (Spring 1998), p.98. 6 A. P. Schmid et al. Political Terrorism. A New Guide to Actors, Authors, Concepts, Data Bases, Theories, and Literature. Revised, expanded and updated edition prepared under the auspices of the Center for International Affairs, Harvard University. Amsterdam, North-Holland Publishing Company, 1988, p.28; A.P. Schmid. “The Response Problem as a Definition Problem”, in A. P. Schmid & R.D. Crelinsten (Eds.) Western Responses to Terrorism. London, Frank Cass, 1999 (1st print.1993), p.12. 7 UN General Assembly Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (29 Nov. 1985). 8 For a more detailed discussion, see: Alex P. Schmid. “Goals and Objectives of International Terrorism”, in Robert O. Slater and Michael S. Stohl. (Eds.) Current Perspectives on International Terrorism. London, Macmillan, 1988, pp.46-87. 9 Harold J. Vetter and Gary R. Perlstein. Perspectives on Terrorism. Pacific Grove, Cal., Brooks/Cole Publishing Company, 1991, p.77. 10 Terror has been defined as an ‘extreme form of anxiety...followed by frightening imagery and intrusive, repetitive recollection’. - F. M. Ochberg, in response to a questionnaire mailed out by A. P. Schmid. For a more extensive discussion, see: A. P. Schmid. Political Terrorism. A Research Guide to Concepts, Theories, Data Bases and Literature. Amsterdam, North-Holland Publishing Company, 1984, pp.67-72. 11 Martin Symonds. “The ‘Second Injury’ to Victims, and ‘Acute Responses of Victims to Terror’ Evaluation and Change”, Special Issue, 1980, p. 36-41; cit. E.E. Flynn, ’Victims of Terrorism: Dimensions of the Victim Experience’, in Paul Wilkinson and Alasdair M. Steward (Eds.). Contemporary Research on Terrorism. Aberdeen, Aberdeen University Press, 1987, pp.343-344. 12 The incident occurred from August 23-28,1973 in the Sveriges Kreditbank in Stockholm in the course of an unsuccessful bank robbery. Two hostage- takers held four hostages for 131 hours, demanding money and a safe conduct out of the country with the hostages. 23 year old hostage Kristin Ehnmark fell in love with 32 year old bank robber Jan-Erik Olsson. In one telephone call to the Swedish Prime Minister one hostage claimed: “The robbers are protecting us from the police”. -Cit. Sheila Ager. “Thera and the Pirates: An Ancient Case of the Stockholm Syndrome”. The Ancient History Bulletin, Vol.12, No. 3, 1998, pp.86-87. 13 Harold J. Vetter and Gary R. Perlstein, op. cit, p.68. 14 R. M. Fields. “Research on the Victims of Terrorism”. In: A. Soskis and F.M. Ochberg, op. cit., p.142. 15 Source: E.E. Flynn, ‘Victims of Terrorism: Dimensions of the Victim Experience’. In: Paul Wilkinson and Alasdair M. Stewart (Eds.). op. cit, pp. 350-351; U.S. Department of Justice. Office of Justice Programs. Office for Victims of Crime. Handbook for Victims of the East Africa Embassy Bombings. Washington, D.C., Dept. of Justice, n.d. [1998/99], pp. 1-4. 16 The World Health Organization defined Post Traumatic Stress Disorders as follows: “Delayed and/or protracted response to stressful event or situation (either short- or long-lasting) of an exceptionally threatening or catastrophic nature, which is likely to cause pervasive distress in almost anyone (e.g. natural or man-made disaster, combat, serious accident, witnessing the violent death of others, or being the victim of torture, terrorism, rape, or other crime). Predisposing factors such as personality traits ...or previous history of neurotic illness may lower the threshold for the development of the syndrome or aggravate its course, but they are neither necessary nor sufficient to explain its occurrence”. - ICD-10 Classification of Mental and Behavioural Disorders. Geneva, World Health Organization, 1992. -http://www.mentalhealth.com/icd/p22-an06.html. 17 For a psychological perspective on terrorism and its consequences, see: Andrew Silke (Ed.). Terrorists, Victims, and Society. Chichester, John Wiley & Co., 2003. 18 See: “Materials for an Identification Theory of Insurgent Terrorism”, in Alex P. Schmid. Political Terrorism. A Research Guide to Concepts, Theories, Data Bases and Literature. Amsterdam, North-Holland Publishing Company, 1984, pp.195-205. 19 Cit. R. Reuben Miller. “Victims of Terrorism”, in M. Crenshaw and J. Pimlott (Eds.). Encyclopaedia of World Terrorism, Vol. 1. Armonk, N.Y., M.E. Sharpe, 1997, p.250. 20 A. P. Schmid et al. Zuidmoluks terrorisme, de media en de publieke opinie. Amsterdam, Intermediair, 1982. 21 Christopher Hewitt. Consequences of Political Violence. Brookfield, Darmouth Publishing Company, 1993, p.16. 22 “Reviewing the International Terrorism”, Tokyo, Public Security Intelligence Agency, 2004, pp.12-14; MIPT Terrorism Knowledge Base (Oklahoma, USA), as of 17 Sept. 2004. 23 Ibid.


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24 Cf. Robert Greene and Joost Elffers. “The 48 Laws of Power: “Nothing is more terrifying than the sudden and unpredictable””. London, Profile Books, 1998, p.39. 25 National Memorial Institute for the Prevention of Terrorism (MIPT), Knowledge Base (Oklahoma), as of 17 Sept. 2004. 26 MIPT Terrorism Knowledge Base (Oklahoma), as of 17 Sept. 2004. 27 Aegis Defence Services Ltd, 118, Piccadilly, London W1J 7NW, UK. 28 Reproduced from document A/C.6/56/L.9,annex I.B. These texts represent the stage of consideration reached at the 2001 session of the Working Group of the Sixth Committee. It is understood that further consideration will be given to these texts in future discussions, including on outstanding issues. A/57/37 Annex II. 29 Cit. United Nations. Tenth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Vienna, 10-17 April 2000. Vienna, UN, 15 Dec. 1999, p.3. (A/CONF.187/8. General Assembly Resolution 42/34, Annex .For full text, see on the Internet: http://www.victimology.nl 30 Source: UN Commission on Crime Prevention and Criminal Justice. Manual on the Implementation of the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. Vienna, UN, 25 April 1997 (E/CN.15/1997/CRP.9), 23. 31 Resolution 1566 (2004), Adopted by the Scurity Council at its 5053rd meeting, on 8 October 2004. 32 Françoise Rudetzki. “How to support the victims of terrorism and crime. Activities and Results of an Association created by the victims for the victims”. Europa 2000, Quarterly Newsletter, January 2000, p.25. 33 Compensable costs include: Medical and mental health expenses; loss of wages; loss of support; funeral expenses; pain and suffering; disfigurement; any clothing, spectacles, and dental damages; physical therapy; vocational rehabilitation; rehabilitation for disabled victims; services to replace work in home previously performed by the victim. The victims (French citizens in France and abroad; foreigners victimized in France) receive an advance in a minimum of 2 days and a maximum of 1 month. - S.O.S. Attentats, Françoise Rudetzki, President. Hotel National des Invalides, 6 Bld. Des Invalides, Paris, France; http://www.sosattentats.org/

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International Terrorism: Large-Scale Victimization Zvonimir Paul ŠEPAROVIĆ* «Kill one to frighten ten thousand» An ancient Chinese proverb Abstract. Large–scale indiscriminate violence has become the reality of contemporary terrorism. Terrorism is becoming a method of combat in which random or symbolic victims serve as an instrumental target. International law has no definitions of terrorism. The statement “one man’s terrorist is another man’s freedom fighter” is rather widespread and accepted. Victims of international terrorism are, as a rule, innocent victims, mass/collective victims, political victims and victims of crime and abuse of power. Some states are using terrorist organizations or individuals to promote state interests. The terrorists’ secret weapon is suicide terrorism. No society can protect all its members from terrorist attacks, but all societies can reduce the risk of becoming the victim of terrorist attacks. Terrorism is a threat to fundamental human rights all over the world. As such it is negation of human rights concepts. This deals with obstacles in the human rights development process caused by present and/or potential acts of terrorism. Human rights concepts should not be understood in the narrow sense, namely only as a set of procedural safeguards for those suspected of terrorism, but also as a requirement for respecting the basic human rights of those affected by terrorist crimes. Some states are producing threats to civil liberties in three areas: government efforts to control debate and limit access to information, the incarceration of large numbers of people in a very troubling manner, and the rushed passage of an anti-terrorism bill. There are some myths and generalizations on terrorism. Are we facing a clash of civilizations along the lines Samuel Huntington (1) predicted? Some conclusions: it is necessary to de-legitimate terrorism, to fight the cult of martyrdom, to develop effective responses to terrorism, to facilitate inter-religious dialogue, to reduce vulnerability to future attacks, to improve the role of law and the International Criminal Court in the war against international terrorism.

Introduction Large-scale indiscriminate violence has become the reality of contemporary terrorism all around the world. Dominant examples are the following: September 11, 2001, Twin Towers and Pentagon, USA. The triumph of modern-day terrorism. September 3, 2004, Beslin, Russia. The triumph of barbarity – more than 400 victims, mostly schoolchildren. Israeli-Palestinian Conflict and the war in Iraq – thousands of victims of terror, mostly by suicide bombers. In the struggle against terrorism, the problem of definition is a crucial element when attempting to co-ordinate international collaboration. In their book Political Terrorism, Schmidt and Jongman cited 109 different definitions of terrorism, which they obtained in a survey of leading academics in the field(2). *

Law School, University of Zagreb, 10000 Zagreb, Croatia.

Z.P. Šeparović / International Terrorism: Large-Scale Victimization

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Terrorism is a method of coercion of a population or its leadership or both, through fear of being hurt. Terrorism is “the state of fear and submission so produced”(3). International terrorism means that terrorism is international in its use, or threatened use, of violence against civilians or against civilian targets in order to attain political aims. This definition is based on three important elements: 1. The essence of the activity – the use, or threatened use, of violence. According to this definition, non-violent protest strikes, peaceful demonstrations, tax revolts, etc. will not be defined as terrorism. 2. The aim of the activity is mostly political. Some scholars tend to add ideological or religious aims to the list of political aims. The concept of ‘political aim’ is sufficiently broad to include these goals as well. 3. The target of terrorism is civilians. Terrorism is thus distinguished from other types of political violence (guerrilla warfare, civil insurrections etc.). Terrorism exploits the relative vulnerability of the civilian “underbelly” - the tremendous anxiety, and the intense media reaction evoked by attacks on civilian targets. The proposed definition of terrorism also addresses a lacuna in present international legislation and international conventions. The concepts of “state terrorism” and the “individual terrorist” act are difficult to define or separate from one another. It is difficult to define because to some international or national actors “terrorism” is a political act. It is also difficult to separate the two because state terrorism and individual terrorism overlap. International law generally, and the mechanisms of the United Nations specifically, have sought painstakingly over the years to specify exactly what is prohibited, and to provide a wide range of possibilities for jurisdiction over such events and persons. As early as in 1972, the General Assembly established an ad hoc committee with a mandate to provide a definition of the term “terrorism”. There were two conflicting views. The developed countries were nervous that a definition of terrorism could be used to include “state terrorism”, that is some military actions taken by developed countries against targets in developing countries. For example, recent military action taken by the United States against targets in Libya, Afghanistan and Sudan would fall into this category. On the other hand, developing countries were nervous that any definition that emphasised non-state actors would fail to differentiate between violent acts properly called “terrorism” and the struggle for national liberation. For example, military action taken by the African National Congress (ANC) against the Apartheid South African government, or military action taken by the Palestinian Liberation Organisation (PLO) against Israel in the name of self-determination or national liberation. 1. Victims of international terrorism Terrorism, like torture, needs a victim. Terrorism, if it be terrorism at all, can never be a victimless crime. The victim, whether chosen at random or carefully selected, has a vital role to play in the tragedy (4). Literature on terrorists and terrorism is abundant, but very little has been written about the victim. There is hardly any mention of how victims of terrorism are chosen, their characteristics, the role they play, if any, in preparing or triggering the terrorist acts, their behaviour during the ordeal, or their post-victimization condition(5). Terrorism is a method of combat in which random or symbolic victims serve as an instrumental target. These instrumental victims share group or class characteristics which form the basis for their selection for victimization. Through previous use of violence or the

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credible threat of violence, other members of that group or class are put in a state of chronic fear (terror). This group or class, whose members’ sense of security is purposefully undermined, is the target of terror. The victimization of the target of violence is considered normal by most observers witnessing the action based on the nature of the atrocity, the time (e.g. peacetime) or place (not battlefield) of victimization, or the disregard for rules of combat accepted in conventional warfare. The norm violation creates an attentive audience beyond the target of terror, as sectors of this audience might in turn form the main object of manipulation. The purpose of this indirect method of combat is either to immobilize the target of terror in order to produce disorientation and/or compliance or to mobilize secondary targets of demands (e.g. a government) or targets of attention (e.g. public opinion) to changes of attitude or behaviour favouring the short- or long-term interests of the users of the combat. 2. State-sponsored terrorism For many years, terrorism was perceived as a contest between two parties: on the one hand, a group of people or an organization, and on the other, a sovereign state. However, during the course of the second half of the twentieth century, various countries began to use terrorist organizations to promote state interests in the international domain. In some cases, states have established “puppet” terrorist organizations whose purpose is to act on behalf of the sponsoring state, to further the interests of the state, and to represent its position in domestic or regional fronts. In other cases, states sponsor existing organizations on the basis of mutual interests. The term “terrorism” has become part of the political vocabulary, used on the one hand to describe states like Libya, Syria, Iraq and Sudan, which have been believed to have trained, financed and facilitated those who have caused violent acts around the world in support of certain political objectives; and on the other, it has been used by those who have, for example, seen the United States as engaging in unacceptable political or military activity in such places as Afghanistan, Libya or Sudan. These two groups refer to the activities of each other as terrorism. The statement “one man’s terrorist is another man’s freedom fighter” has become not only a cliché, but also one of the most difficult obstacles in coping with terrorism. In the struggle against terrorism, the problem of definition is a crucial element in the attempt to co-ordinate international collaboration, based on the currently accepted rules of traditional warfare. In their book Political Terrorism, Schmidt and Youngman cited 109 different definitions of terrorism, which they obtained in a survey of leading academics in the field. 3. The terrorists’ secret weapon: suicide terrorism or the self-victimized perpetrator The terrorist’s secret weapon on September 11 was not advanced technology but human resolve. Co-ordinated attacks can succeed only if those carrying them out are willing to sacrifice their own lives. Over the past two decades, suicide terrorism has become an everwidening phenomenon. Fifteen different terrorist organizations in twelve different countries resorted to the use of suicide tactics against their enemies. Since February 2000, about 275 suicide incidents have occurred. Looking at the history of terrorism, it can be seen that suicide attacks are in actuality a very old modus operandi. In ancient times two notorious sects, the Jewish Sicairis and the Islamic Hashoishiyun became infamous for such attacks. Muslims carried out suicide attacks in their fights against Western hegemony and colonial rule in the 18th century on the


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Malabar coast in India, in Northern Sumatra and in Mindanao and Sulu in the southern Philippines. According to the Samurai Bushido code the preferred form of death is a hero on the battlefield: “Warrior of the Emperor, you are strictly forbidden to return from battle alive. Your task demands your death. Your body will fall on the field of battle, but your soul will live on. It has chosen for your body to die to achieve victory.” Modern suicide terrorism is aimed at causing devastating physical damage, which inflicts profound fear and anxiety. Its goal is to produce a negative psychological effect on an entire population, rather than on just the victims of the actual attack. Group suicide attacks are extremely rare. And yet on September 11 at least 19 perpetrators went to their deaths. It is possible that as many as 13 did not know it was a suicide mission. Only six suicide notes have been discovered, and it is possible that the final letter urging the hijackers “to crave death” was not read by all. We may never know the truth, but no matter; at least six were determined to kill themselves in order to carry out their mission. The cultural context, moreover, cannot be overlooked. All cultures have produced their share of martyrs and heroes who readily sacrificed their lives for causes in which they believed. The kamikaze is but one example. In recent years, suicide has become the benchmark of religious devotion in the Middle East. Modern suicide terror attacks started in Lebanon in April 1983 when a small, until then unknown, group by the name Hizballah directed a number of suicide attacks against Western targets. The first attack was directed at the American embassy in Beirut (April 1983), followed by attacks on the U.S. Marines headquarters and the French Multinational Force (October 1983). The last two were executed simultaneously and resulted in 300 casualties and dozens of wounded. Since the earliest days of victimology, various typologies have been devised to classify victims. Steven Schafer has suggested a typology based on victim responsibility, including unrelated, provocative, precipitative, biologically weak, self-victimizing and political victims. The suicide terrorist is typically a consenting, willing victim. There are offences in which the victim wants, initiates, and works diligently toward the success of the offence, e.g. suicide, euthanasia, abortion, various “con games”, etc. The suicide terrorist is definitely one of those consenting, willing victims. He is his own victim. 4. USA and the world after September 11, 2001 In the aftermath of the terrorist attacks on September 11 in the USA, one question was on everyone’s mind: “How did this happen?” When the attacks on the World Trade Centre and the Pentagon were followed by a spate of letters bearing anthrax bacteria, shock and anger turned to panic. During the final years of the twentieth century, the number of terrorist attacks worldwide declined, but the number of casualties per attack rose. Experts felt the latter trend was ominous. They generally agreed that the risk of a catastrophic strike was still low, but worried that a new kind of terrorist, driven by fanaticism and hatred rather than limited political objectives, might try to cause true mass destruction. They were right to worry. The success of the most recent strikes, however, also depended on the vulnerability of an open and ill-prepared society. Ingenuity rather than technological sophistication enabled the terrorists to enter the domain of mass destruction, killing more than 5,000 people without resorting to chemical or biological weapons or improvised nuclear devices. Large-scale indiscriminate violence had become the reality of contemporary terrorism before this most recent strike. Previously, terrorists had achieved this in one or two ways:

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by detonating truck bombs or smuggling small bombs aboard commercial airlines. September 11, 2001 will be remembered as one of the most tragic dates in US history. It followed many other acts of terrorism, such as the 1972 attack on the Israeli Olympic team in Munich, the explosion of Pan Am Flight 103 over Lockerbie, the bombings of US embassies in Nairobi and Dar Es Salaam, etc. Here are number of the victims of some of the worst incidents in recent history: 241 killed by a truck bomb in Beirut, 1983; 325 killed people in the crash on an Air India flight, 1985; 115 killed in the sabotage of a Korean airliner, 1987; 270 killed in the crash of Pan Am flight 103, Lockerbie, 1988; 171 killed in the crash of a UTA flight in 1989; more than 300 killed in 1993 by car bombs in Bombay, 1993; 168 killed by a truck bomb in Oklahoma City in 1995; 5000 killed - Twin Towers, September 11, 2001; 170 killed by Theatre siege, Moscow, 2002; 46 killed in train bombing, Yessentuki. Russia, 2003; 92, raids carried out by Chechen rebels, Ingushetia, Russia, 2004; 191 killed in attack on train, Madrid, Spain, March 3, 2004; 500 killed (mostly schoolchildren), Beslan, N. Ossetia, September 3, 2004. These were ominous but rare events (6). Of more than 10,000 incidents of international terrorism recorded since 1968, only 14 prior to September 11 in the USA resulted in 100 or more fatalities. Terrorism requires shock, which had been increasingly difficult to sustain in a world that had become inured to the growing volume of violence, and so escalation was necessary. A fundamental change in terrorist motives had further eroded the constraints. Terrorism in the 1970s and 1980s was driven largely by ideology or the narrow nationalism that spawned separatist violence. Towards the end of the century, however, proclaimed religious beliefs increasingly provided its context. This shift is significant. Those convinced that they have a mandate from God to kill their foes have fewer moral qualms about mass murder and care less about constituents. They have no political agenda to promote. And, in the mind of the devout, death in God’s cause brings reward in the hereafter. Suicide attacks and mass murder often go hand in hand. For these reasons, analysts predicted that religiously inspired terrorists would be capable of the worst destruction, and they were correct. Those who approved and supported the September 11 attacks may well have anticipated an even higher level of casualties than actually occurred - something in the realm of tens or hundreds of thousands. The attacks were designed to have been a blow unprecedented in the annals of terrorism, beyond the carnage of war: the cruel punishment, the cruel punishment, the ultimate payback. Beslan, Russia, September 3, 2004. The terrorist devastated a school and its hostages wrought carnage of proportions usually seen only in wartime: the death toll, in what is only a small town, may have exceeded 500. The terrorists in Beslan deliberately went for the most innocent and defenceless targets; they timed their attack for the first day of the school year, to catch the maximum number, they tortured their small captives by refusing them all food and water; and when one of the explosives they had rigged in the school gymnasium went off, apparently by accident, they shot fleeing hostages in the back before blowing the building apart. Terror is becoming more and more brutal. Kidnappings followed by beheadings are apparently becoming a tactic of choice for terrorist groups. They are easy to carry out and are designed to cause maximum shock to the Western public. Beheadings are a political psy-


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chological ploy to show the enemy is merciless, vengeful and will stop at nothing. The brutal reality of this type of physical and psychological terror requires new ways of thinking and new responses to cope with and defeat the phenomenon. In the aftermath of these attacks, it has become clear that the existing legal framework for bringing the attackers to justice is inadequate. For instance, rather than using traditional law enforcement mechanisms contained in anti-terrorism conventions, the US viewed such mechanisms as inadequate and insufficient tools with which to repress terrorism. Instead, it chose a “war against terror”, neglecting the International Criminal Court as a new instrument for repressing terrorism. Namely, acts commonly referred to as “terrorism” are actually war crimes, crimes against humanity, genocide, and aggression, thereby falling within the jurisdiction of the International Criminal Court ( Rome, 1998) located in The Hague. The UN Security Council expressed its concern, inter alia in its resolution on International Terrorism (doc. S/1999/1017): “Deeply concerned by the increase in acts of international terrorism which endangers the lives and well-being of individuals worldwide as well as the peace and security of all States, condemning all acts of terrorism, irrespective of motive, wherever and by whomever committed […] Unequivocally condemns all acts, methods and practices of terrorism as criminal and unjustifiable, regardless of their motivations, in all their forms and manifestations, wherever and whomever committed, in particular those which could threaten international peace and security.” 5. The war on terrorism The United States has been the target of a very serious act of war, conducted by a formidable cruel, brave, fanatical, and well-organized enemy with a terrifying capacity for both savagery and self-sacrifice. The U.S. military response, begun on October 7, 2001, has been called the war on terrorism. The clearest conclusion to emerge from the events of September 11 is that the geographical position and the military power of the U.S. are no longer sufficient to ensure its security. September 11 marked the beginning of a new era - an age of terror in which counterterrorism will be one of the highest priorities of national governments and international institutions. What exactly is to be done? No society can protect all its members from terrorist attacks, but all societies can reduce the risk of becoming the victim of a terrorist attack. Terrorism in previous periods of history was little more than a nuisance but, as a result of technological and other trends, the danger is now much greater: in an age of weapons of mass destruction even one attack can be overwhelmingly devastating. The world must look for a model of how to mobilize national and international’s scientific, technological, legal and medical expertise to battle terrorism. The problem is also a moral and ethical one. We need a culture of tolerance and love, not one of violence and hatred. Security and safety, the basic human needs (according to Maslow), have new meaning, for which little in our history, and even less in our planning, has prepared us. Victimization or victim risk can be studied, and in some instances generally predicted by scientific means. The causes of victimization by terrorist attack could be studied, determined and reduced, and appropriate preventive and remedial action could be taken.

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6. Terrorism and human rights Civil Libertarians understand as clearly as anyone that the events of September 11 change America, and they support efforts to track down those who perpetrated these acts and to take effectives steps to deter new terrorist attacks on Americans at home and abroad. Where they may differ with others is in their scepticism that expanding surveillance authorities is the most effective way to prevent further attacks. They also fear that new powers given to the government will be used against targets other than the terrorist we all have in mind. And they insist that whatever changes are made in the law be made carefully, following normal procedures and with a serious effort to balance national security and civil liberties. US troops and military police have been blamed for chaotic and disorganized detainee operations in post-war Iraq and Afghanistan. A large cast of senior officers contributed to the Abu Ghraib abuses and abuses in Guantanamo after September 11. What has happened so far gives us concern on all three counts. Since September 11 we have seen threats to civil liberties in three areas: government efforts to control debate and limit access to information, incarcerations of large numbers of people in a very troubling manner, and the rushed passage of an anti-terrorism bill. 7. Huntington’s clash of civilizations In the summer of 1993, Samuel Huntington penned an article promoting the idea that, in the post-Cold War world, future conflict, up to the level of global warfare, would arise from the struggle against the spreading influence of Islam and China. It would be later the subject of a book by the same author, The Clash of Civilization And The Remaking of World Order (New York, 1996). Huntington argued that we are entering a phase of history in which “the principal conflicts of global politics will occur between nations and groups of different civilizations. The clash of civilizations are substantially – though not exclusively – religious. Among those which he considers may come into conflict with each other are Western, Confucian, Islamic, Hindu and Slavic-Orthodox civilizations. Though President Bush and other leaders have made commendable efforts to deter Americans from taking out their anger on Muslims in the United States, and his administration has forged an international coalition against terrorism that includes some predominantly Muslim states, many fear we are entering an era of conflict along the lines Huntington predicted. The principal antagonist, according to Aryeh Neier, will be, we imagine, the West, led by the United States, and Islam, led by the likes of Osama Bin Laden and fanatic followers, prepared to commit suicide for their cause. The present war and most international terrorism is a conflict of culture and religion, and not only war on terrorism. This conclusion is based not on the ideas presented in Samuel Huntington’s famous book “The Clash of Civilizations”, but on the presentation of the conflict by the other side. The night of the first strikes on Afghanistan, all the world saw Osama Bin Laden’s famous video message in which he stated: “These events have divided the world into two camps, the camp of the faithful and the camp of infidels. Every Muslim must rise to defend his religion. The wind of faith is blowing and the wind of change is blowing.” 8. New challenges: non-conventional terrorism and hyper-terrorism The world is now entering a new phase in its history, more dangerous than any before. Over the past decade, unconventional terrorism has come to be regarded as the most threatening of all terrorist tactics. With the string of chemical weapon terrorist attacks on various targets in Japan in early 1995, a formerly theoretical scenario has entered the realm of day-to-


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day reality. Years of discussion and contrasting assessments on the possibility of terrorist organizations’ use of non-conventional weapons for mass murder came to an end the moment the toxic gas Sarin began wafting through the tunnels of Tokyo’s subway system. Aside from chemical terrorism there are also possibilities of biological, terrorism, cyber/terrorism and even nuclear terrorism. The potential threat posed by cyber-terrorism has provoked considerable alarm. Cyberterrorism could be defined as the use of computing resources to intimidate or coerce others. There is the danger of cyber-terrorists hacking into government and private computer systems and crippling the military, financial, and service sectors of advanced economies. Cyber-terrorism is an attractive option for modern terrorists, who value its anonymity, potential to inflict massive damage, psychological impact and media appeal. Combating cyberterrorism has become not only a highly politicised issue but also an economically rewarding one. The sheer number and complexity of potential targets guarantee that terrorists can find weaknesses and vulnerabilities to exploit. Success in the “war on terror” is likely to make terrorists turn increasingly to unconventional weapons such as biological, cyber-terrorism and nuclear terrorism. Nuclear terrorism could bring the most disastrous results. A nuclear terrorist attack is an incident in which terrorist organisations use a nuclear device to cause mass murder and devastation. Nuclear terrorism also includes the use, or threatened use, of fissionable radioactive materials in an attack, for example, an assault on a nuclear power plant for the purpose of causing extensive and/or irreversible environmental damage. In this case it need only use conventional weapons against one of the many nuclear reactors in the world in order to seriously damage the reactor, thus releasing radioactive matter into the atmosphere. Such an attack can endanger large population centres. Nuclear weapons can give terrorist organizations considerable advantages, since they can inflict large numbers of casualties and command worldwide media attention. A terrorist organization may attempt to obtain fissionable material or nuclear weapons in a number of ways: it may purchase fissionable material on the black market, e.g. in Eastern Europe, or it may purchase or obtain radioactive materials from other countries, particularly those that support terrorism. It is rather unlikely that a terrorist organization would itself construct a nuclear bomb, for this requires special resources and training that terrorist organizations do not possess at the present time. Terrorists may even seize a nuclear stockpile of various nuclear devices and other hazardous substances from around the world. Terrorism is more powerful now than before. All evidence now screams that reshaping the Middle East from a base in occupied Iraq is not leading to less terrorism. “It is leading to hyper-terrorism. […] If you don’t stop your injustices, more blood will flow and these attacks are very little compared with what may happen with what you call terrorism.” – Abu Dujan al-Afghani, purported military spokesman for Al-Qaeda in Europe, claiming responsibility on video for the Madrid bombings. According to intelligence estimates in Brussels, there may be an invisible army of up to 30,000 holy warriors spread around the world, which begs the question: how will Western democracies be able to fight them? The Madrid bombings have already produced the terrorists’ desired effect: fear (7). The United Nations have long been active in the fight against international terrorism. Reflecting the determination of the international community to eliminate this threat, the organization and its agencies have developed a wide range of international legal agreements that enable the international community to take action to suppress terrorism and bring those responsible to justice. Dating back to 1963, these agreements provide the basic legal tools to combat international terrorism in its many forms – from seizure of aircraft to hostagetaking to the financing of terrorism.

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9. Terrorism and international victim assistance Crime victims in general and the terrorism victims in particular are still being overlooked and the time is long overdue to write the needs and rights of victims of terrorism into every aspect of criminal justice and also to ensure that everything possible is done to prevent their victimisation and to assist them properly. Cognizant that millions of people throughout the world suffer harm as a result of crime and abuse of power, including international acts of terrorism, and that the rights of these victims have still not been adequately recognized, and that they may, in addition, suffer hardship when assisting in the prosecution of offenders, we recall the UN General Assembly resolution (GA/RES/40/34) which called upon Member States to take necessary steps to give effect to the provisions contained in the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of power, inter alia by implementing social, health, educational, economic and specific crime prevention policies to reduce victimization and encourage assistance to victims in distress, sponsoring victim aid and alleviating the plight of victims. Security Council resolution 1566 of 8 October 2004 created a working group with the task of “consider[ing] the possibility of establishing an international fund to compensate victims of terrorist act and their families, which might be financed through voluntary contributions, which could consist in part of assets seized from terrorist organizations, their members and sponsors, and submit[ting] its recommendations to the Council” (8). The Terrorism and International Victim Assistance Services Division (TIVASD) is one of several typical American organizations responsible for developing programs and initiatives regarding assistance to victims of terrorism and to victims of crimes of transnational dimensions. The threat of terrorism has increased in recent years. New types of weapons of mass destruction pose significant challenges for those charged with responding to victims of terrorist attacks. 10. Some proposals and conclusions Progress in fighting international terrorism and protecting potential victims from the terrible consequences of international terrorism might take the form of the following possible national and international actions: 1. It will not be possible to eliminate terrorism any more than it is possible to eliminate crime. But it is necessary to de-legitimize terrorism and to strengthen law and the norms against targeting civilians. 2. As part of that strategy, the U.S. needs to call on Islamic countries and moderate Muslims to speak out against the cult of martyrdom through suicide bombing. 3. To develop effective responses to terrorism and to advance the understanding of political violence and ways of dealing with it. 4. To teach young people about terrorism. 5. The promotion of human rights and democracy is essential in improving many problems in today’s world, including terrorism. 6. The long-term struggle against terrorism will largely be a war of information, a fight for people’s minds, requiring a strategic communication campaign. 7. No “safe harbours” for terrorists. A strategy of sustained offensive action must be developed through better security and improved intelligence to constantly disrupt terrorism, offensive operations and the terrorist’s ability to plan operations, conduct training, and execute future attacks.


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References [1]

S.P. Huntington, The Clash of Civilizations and the Remaking of World Order, Foreign Affairs, New York, 1996.

[2]

A.P. Schmidt, A.I. Jongman et al., Political Terrorism, SWIDOC, Amsterdam and Transaction Books, 1988. See also A. Obote-Odora, Defining International Terrorism ,Murdoch University Electronic Journal of Law, Vol.6, No 1 (March, 1999). See also: B. Ganor ,Defining Terrorism, Herzlia: ICT Papers, 1997.

[3]

The Macquary Dictionary, A Kevin Weldon Production, l989.

[4]

H.H. A. Cooper, The Terrorist and His Victim, Victimology, vol. 1, no.2, 1976.

[5]

A.A. Fattah, Some Reflections on the Victimology of Terrorism, TERRORISM: An International Journal, vol.3, no 1-2

[6]

Sources: Reuters; Keesing’s; MIPT

[7]

P. Escobar, The Roving Eye: The Emergence of Hyperterrorism, Asia Times, March 17, 2004.

[8]

This provision echoes Article 8(4) of the international Convention for the Suppression of the Financing of Terorism, adopted in New York, 1999.

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Regaining Trust and Confidence in PostConflict Societies as a Way to Prevent Terrorism Hans-Jörg ALBRECHT* Post-conflict societies pose grave risks as regards reoccurrence and escalation of violence, in particular terrorist violence. Iraq as well as other regions provide ample evidence of this trend. The text summarizes the characteristics of post-conflict societies and identifies the challenges associated with the aftermath of large-scale violence. At the centre of such challenges we find trust and security. Trust is in short supply in post-conflict societies, as is security. In order to re-establish security and trust, a state must have a justice system to deal with atrocities of the past and an economy that replaces war-time economies and markets as well as a functioning civil society.

1. Introduction: Trust and Vulnerability Today, it is certainly Iraq which provides us with the most extreme example of a society where disruption of ordinary life through terrorist violence following military intervention and war creates a climate of fear, mistrust and insecurity. Car bombs explode and suicide bombers take scores of victims with them. Humans suffer from the direct exposure to violence but more from extreme feelings of insecurity and crave an environment where others can be trusted again. Trust is a basic social asset.1 If mistrust is generated by disorder, threats, suspicion, scarce resources or feelings of powerlessness,2 then trust comes from the opposite: faith in others, feelings of security, order and, with order, a functioning system of formal and informal social control and the perception that danger can be prevented3 or can – at least in a certain way – be controlled. Trust comes about as a result of a (legal) obligation4 and a sense of confidence and it has cognitive,5 affective and behavioural dimensions. Trust overlaps to a certain extent with feelings of security and thus is linked to predictability of acts and action and, in particular, refers to freedom from fear, which in its essential form is freedom from fear of physical violence. Trust, moreover, is a major ingredient of the social capital which exists in social groups and in society at large 6. Research has shown

*

Max Planck Institute for Foreign and International Criminal Law Coleman, J.S.: Social Capital in the Creation of Human Capital. American Journal of Sociology 94(1988), pp. 95-120. 2 Ross, C.E., Mirowsky, J., Probesh, S.: Powerlessness and the Amplification of Threat: Neighborhood Disadvantage, Disorder, and Mistrust. American Sociological Review 66(2001), pp. 568-591. 3 For an analysis of trust see in particular Giddens, A.: The Consequences of Modernity. Cambridge: Polity Press 1990. 4 Braithwaite, J.: Institutionalizing Distrust, Enculturating Trust. In: Braithwaite, V., Levi, M. (eds.): Trust and Governance. Sage: New York 1998, pp. 343-375, p. 344. 5 Kramer, R.M.: Trust and Distrust in Organizations: Emerging Perspectives, Enduring Questions. Annual Review of Psychology 50(1999), pp. 569-598. 6 Coleman, J.S.: opus cited, 1988. 1

H.-J. Albrecht / Regaining Trust and Confidence in Post-Conflict Societies

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that trust is required for sound economic development7 and that communicating trust to somebody else will, in general, generate more compliance with social and legal norms than is generated by communication of mistrust.8 Finally, trust is inevitably linked to insecurity and risk, as trust is needed to establish trust in situations where risk and insecurity prevail. Thus, the concept of trust can be claimed to play an important role in those societies where trust has been destroyed as a result of civil war or other large-scale violence which has left latent enemies after warring has come to an end. Trust is undersupplied in many societies, in particular in conflict and post-conflict societies. However, although an abundance of trust is most welcome, an abundance of trust means also that there are abundant opportunities to abuse trust.9 Terrorism, in particular, feeds on the need for trust and exploits the apparent vulnerabilities in modern societies that come with social and economic structures based on trust. Successfully targeting soft targets essentially carries the message that such structures cannot be trusted. Thus, trust contains a double bind which has the potential to produce both strength and vulnerability. The basis of trust is the state, in particular the state which creates norms and guarantees the normative structure of a society, the market (and the exchange structures which emerge as well as wealth produced in a functioning economy) and finally civil society and its institutions.10 This is as evident as the need for all three aspects of a society to be strong in order to generate trust on both the micro and macro level. Without a strong market, civil society will be unable to develop, and without civil society there will be no functioning social institutions that generate trust as confidence. Again, without a strong state neither a strong civil society nor a productive economy can develop, while on the other hand trust as an obligation will be undersupplied, in particular as regards the promise of a state where only one form of violence will be accepted. This is violence channelled and monopolized by the state (and its institutions – police, military – which may legitimately exert violence). 2. What is a post-conflict society? Post-conflict societies are post-collective violence societies and thus display well-known problems, as these problems basically reflect the ample experiences mankind has collected in the field of collective violence, feud and war. What is new so far in the approach to postconflict societies is that international and transnational state and non-state organizations get involved in peace-making, sometimes already in the hot phases of violence, but always after violence has ended. What is not that new but rather has been elaborated during a century-old process concerns international norms that aim at placing collective violence and war under normative restraints. Recently, such restraints have included criminal sanctions and an enforcement mechanism established by the Statute of Rome. With international justice and, in particular, the International Criminal Court as well as its international and supranational normative and organizational environment in terms of human rights legislation and conventions, the United Nations and Security Council mechanisms, regional state or7 Woolcock, M.: Social Capital and Economic Development: Toward a Theoretical Synthesis and a Policy Framework. Theory and Society 27(1998), pp. 151-208; Buchan, N.R., Croson, R.T.A., Dawes, R.M.: Swift Neighbors and Persistent Strangers: A Cross-Cultural Investigation of Trust and Reciprocity in Social Exchange. American Journal of Sociology 108(2002), pp. 168-206. 8 See the discussion of research findings in Braithwaite, J.: Institutionalizing Distrust, Enculturating Trust. In: Braithwaite, V., Levi, M. (eds.): Trust and Governance. Sage: New York 1998, pp. 343-375. 9 Kollock, P.: ‘An Eye for an Eye Leaves Everyone Blind’: Cooperation and Accounting Systems. American Sociological Review 58(1993), pp. 768–86; Kollock, P.: The Emergence of Exchange Structures: An Experimental Study of Uncertainty, Commitment, and Trust. American Journal of Sociology 100(1994), pp. 313–45. 10 Braithwaite, J.: Institutionalizing Distrust, Enculturating Trust. In: Braithwaite, V., Levi, M. (eds.): Trust and Governance. Sage: New York 1998, pp. 343-375.

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ganisations, including the European Union, NATO as well as human rights bodies and various NGOs, the international community has elaborated a system of relief and support that carries preventive and repressive elements. At the centre of all that certainly lies the issue of protecting human rights efficiently. It is, however, as Delmas-Marty put it, also an expression of global justice or at least an attempt at global justice11 and perhaps also the nucleus of future legitimate world governance and a world state.12 The involvement of international actors has brought about a new dimension, insofar as conflict resolution and coping instruments are introduced into post-conflict societies and are supposed to deliver from the outside enduring solutions in terms of justice and lasting peace as well as the capacity to generate justice and peace after periods of violence and destruction have come to an end. However, all violent conflicts with which we have dealt in the last decades and which have generated the kind of post-conflict societies that are on the agenda today have local roots and are embedded in local cultures that must be accommodated if trying to solve conflicts, de-escalate violence prone situations, reconcile conflict groups and rebuild trust and security.13 Hence, intervention in violence and group conflict has to consider local cultures and traditions if it is to have any degree of success at all. This means that all internationally organized attempts will have to adopt a character of experimentation and learning as specific local traditions and cultures have to be integrated into the international peace and justice making process 14. This is true, in particular, for the system of international criminal justice, which can actually be compared to a huge legal laboratory where new cures are being sought for old plagues. In addition to attempts to create working and functioning interfaces between international and local mechanisms of security, justice and reconciliation, it seems of paramount importance to establish evaluation procedures that help in adjusting legal strategies and practice rapidly if evaluation shows such a need. Evaluation, of course, is in need of goals and procedures that can be operationalized and studied. There is certainly a deficit in the area of evaluation of international justice schemes being implemented in post-conflict countries. Although evaluation and “assessments” are being carried out, most such enterprises do not comply with ordinary scientific standards of evaluation but can be understood to stem from an international system of advising and expertise which generate methodologically doubtful and theoretically weak information. The last two decades have shown that there have been significant changes in the phenomenon once known as war15 and the answer to what challenges exist in post-conflict societies and how trust and a sense of security can be re-established will also depend on a proper understanding of such changes in the context of the phenomenon of collective violence. This raises also the need to consider the future of violence in a globalized world.16 Societies such as East Timor, Iraq, Bosnia and Herzegovina, Kosovo, Liberia, Sierra Leone, Angola, Columbia, Afghanistan, Rwanda and many more places that have been or are still shaken by violent conflicts point to the dramatic need to develop instruments that success11

Delmas-Marty, M.: Global Crime Calls for Global Justice. European Journal of Crime, Criminal Law and Criminal Justice 10(2002), pp. 286-293. 12 Hess, H.: Jenseits von Huxley und Orwell. Alte und neue Prognosen über die Zukunft der Kontrollpolitik. In: Althoff, M. et al: Integration und Ausschließung. Kriminalpolitik und Kriminalität in Zeiten gesellschaftlicher Transformation. Baden-Baden: Nomos 2001, pp. 322-341; Hess, H.: Terrorismus und Weltstaat. Kriminologisches Journal 34(2002), pp. 143-149. 13 Report of the Secretary-General: The rule of law and transitional justice in conflict and post-conflict societies. United Nations, S/2004/616, p. 7. 14 McCormack, T.: Regional Enforcement of International Criminal Law Post-9/11. Melbourne Asia Policy Papers No. 2, The University of Melbourne, May 2003. 15 Münkler, H.: Die neuen Kriege. Reinbek 2002; Collmer, S.: New War? Vom Staatenkrieg zu den irregulären Kriegen des 21. Jahrhunderts. In: Collmer, S. (Hrsg.): Krieg, Konflikt und Gesellschaft. Aktuelle interdisziplinäre Perspektiven. Hamburg 2003, S. 89-112. 16 V. Trotha, T.: Die Zukunft der Gewalt. MschrKrim 85(2002), S. 349-368.


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fully contain violence, reconcile groups involved in past and current violence and help in rebuilding social structures, thus providing stability and a basis for economic and cultural development. Most of these societies are perhaps defined as being in a state of post-conflict but in many of them conflict is still ongoing; they are either latent conflict societies or they are still in the active phase of violent, albeit perhaps low-intensity, conflict. The aftermath of violent conflict and, in particular, mass victimization always carries the risk of re-entering hot stages of violence. The acts of violence that shook Kosovo in the spring of 2004 leaving many dead, scores injured and displacing thousands more shows that the risk of complete failure of international efforts to bring about peace and stability is high indeed and, worse still, that peace-building organizations can get themselves entangled in violence and thus become part of the escalation of the problem and not its solution. Thus, the central issue of post-conflict societies’ concerns that conflict might not be resolved in a way that prevents such conflict from occuring again is that collective violence may break out again at any time. Part of the attempt to establish containment and prevention of violence is justice which responds to such violent crimes as human rights violations, acts of terror and violence against the civilian population, etc. 3. The role of the international community and international justice The international community has developed a range of instruments in order to be able to prevent, contain and punish gross human right violations. Besides the system of human rights implementation that has been adopted on the basis of international or regional human rights conventions, Security Council based military interventions, peace keeping and violence containing missions, substantial and procedural criminal legislation, as contained in the Rome Statute, as well as the international investigative, prosecuting and judicial functions of the International Criminal Court and the International Public Prosecution Services are very much hailed as a major step towards global justice and the foreseeable end of impunity for gross human rights violations. The United Nations have recognized that the implementation of the rule of law and the launching of a process which establishes a transitional justice system are of paramount importance in an enterprise aimed at restoring peace successfully in post-conflict societies.17 However, there are a range of problems and issues that will continue to trigger debate and conflict about how far such international justice should be allowed to go. It is, in particular, the concept of complementarity of international jurisdiction and the enforcement problem which will continue to pose problems for attempts to re-establish justice, security and stability. Furthermore, the general question arises as to what kind of justice system in terms of substantial and procedural law should be implemented in post-conflict societies. ● The problem of legitimacy Seen from the viewpoint of post-conflict areas, international attempts to provide the capacity to build up civil society and legal structures, to provide security and to respond to severe human rights violations suffer from a significant and serious deficit in legitimacy. Although such international enterprises are rich in resources (in terms of knowledge, intelligence, military and policing power and the general capacity to deliver health and other services) they lack legitimacy in most post-conflict areas for the following reasons: ► they come from outside; 17 Report of the Secretary-General: The rule of law and transitional justice in conflict and post-conflict societies. United Nations, S/2004/616.

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► they have to take sides, in particular when sorting out perpetrators (and victims), and in taking sides they participate in the re-allocation of political power;18 ► they do not have a sound democratic basis; ► they deliver values that overlap only partially with those of the justice-receiving countries; ► the international organisations involved, after all, did either nothing or not enough19 to prevent the large-scale violence and mass victimization from occurring in the first place and this means that they are part of the history of the conflict; ► they are culturally different; ► they are part of a larger conflict, most probably a cultural conflict, which continues to attract resources from outside that are likely to strengthen those parties that are not interested in joining the process of settling conflicts. ● The problem of enforcement Enforcement problems are clearly visible in the structure of international criminal justice. The judicial functions may be well developed and the prosecutorial functions well elaborated, however, enforcement of justice in national systems is normally entrusted to police and executive powers that may legitimately and efficiently use coercion if individuals or groups do not comply with judicial orders or prosecutorial requests. An international police force, does not exist though, nor are there any attempts to form an international police which could directly enforce prosecutorial or judicial orders. There are certain functional alternatives to an international police such as enforcement mechanisms launched by the Security Council and based on the United Nations Charter. However, such an arrangement creates a gap between the international judiciary and international enforcement structures. While a permanent structure has been set up for judicial and prosecution functions, the executive and law enforcement part remains completely under the authority and control of political systems and political decision-making. This gives rise to a case by case basis for decisions when enforcing international justice. Moreover, such decisions are dependent on the capacity to build coalitions of willing partners which then lend themselves easily to criticism, be it criticism of legal imperialism or for not intervening early enough and ending ongoing large-scale violence and victimization. ● The problem of efficiency Efficiency is another key concept in understanding challenges. Problems of efficiency are related on the one hand to enforcement and on the other hand to the legitimacy of justice in pursuing intervention.

18 Bertram, E.: Reinventing Governments. The promise and perils of United Nations peace building. Journal of Conflict Resolution 39(1995), pp. 387-418. 19 See eg. Schlicher, M., Flor, A.: Historical and Political Background to the Conflict in East Timor. In: Ambos, K., Othman, M. (eds.): New Approaches in International Criminal Justice. Kosovo, East Timor, Sierra Leone and Cambodia. Freiburg 2003, pp. 73-83, p. 81 for the role of the UN in East Timor during the violence following the vote for independence.


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● The problem of material and normative resources

The problem of efficiency is certainly linked also to the problem of resources. The need for resources points to knowledge and normative resources on the one hand and to material resources on the other hand.20 Here it is evident that, at least in some post-conflict societies, e.g. Kosovo, East Timor or Rwanda, there is a dramatic lack of resources that has serious consequences for the type of justice that can be delivered in the near future. From East Timor it has been reported that collective violence exerted in 1999 over a period of some 10 months destroyed virtually all of the former infrastructure21 and under no circumstances can it be imagined that it would be possible to rebuild the justice, health or education system within a short period of time. However, funds are limited and over lengthy periods of time the justice system will operate under serious restrictions that will sometimes prevent international human rights and procedural standards from being implemented effectively. The choice which comes with scarce resources concerns whether to direct such resources into the past and efforts to investigate and punish, or whether to invest resources in the future and in attempts to prevent further possible violence.22 The problem of resources is also related to the question of how all kinds of aid are distributed in conflict zones, the impact of such aid and what role NGOs play in the process of restoring the material basis of social life. Relief operations that aim at food delivery and health services may well have adverse effects.23 Resources made available for the re-establishment of administrative and governance capacity may prove to be profitable mainly for advisors, as is assumed now in the case of Afghanistan,24 or for former parties to the conflict preparing themselves for further violence. The problem of knowledge resources is easily recognized when taking into account the rules that govern the applicable law as set out in Article 21 of the Rome Statute. This question addresses problems within the framework of the ad hoc tribunals as well as the International Criminal Court but also problems of how to deal with criminal cases that do not qualify for international justice and have to be dealt with within a local system of justice. In many instances it will be difficult to resort to the law and the legal institutions and procedures which were in force and operational before and during the period of violence and turmoil because the legal framework is linked to those forces and the authorities who were involved in the violence, or who at least triggered or supported the violence. Experiences in Kosovo underline these problems. UNMIK tried to persuade judges to apply UNMIK Regulation 1999/1 (rules of criminal procedure) until a new (interim) criminal code was created. However, not many judges actually applied such rules, which led to a situation which prevented the effective implementation of the rule of law and where law was applied differently by different judges 25.

20 Miller, L., Perito, R.: Establishing the Rule of Law in Afghanistan. United States Institute of Peace. Washington 2004, pp. 5. 21 Schlicher, M., Flor, A.: Historical and political Background to the Conflict in East Timor. In: Ambos, K., Othman, M. (eds.): New Approaches in International Criminal Justice. Kosovo, East Timor, Sierra Leone and Cambodia. Freiburg 2003, pp. 73-83, p. 81. 22 See Feinberg, G.: opus cited, 2004, p. 11. 23 See Allen, T.: War, Genocide, and Aid. In: Elwert, G., Feuchtwang, S., Neubert, D. (Eds.): Dynamics of Violence. Processes of Escalation and De-Escalation in Violent Group Conflicts. Duncker & Humblot: Berlin 1999, pp. 177-201, citing numerous examples including Biafra, Somalia and Cambodia as well as other conflict areas of the eighties and nineties. 24 Spiegel, 26.3. 2005, “Versickernde Milliarden”. 25 USAID, USOP, OSCE: Judicial Assessment Mission II. December 21, 2001, p. 8.

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Here an urgent need becomes apparent for international transitional laws that can be implemented (in a flexible way) during periods of transition back to a civil stable society with fully developed judicial institutions based on statutory law which has been generated through democratic processes. As regards applicable law within the framework of international criminal courts as set out in Article 21 of the Rome Statute, the simple reference to the Statute itself, international law as well as legal thinking based on a comparative analysis of major legal systems including the law that was or still is in principle applicable in the territory concerned as well as the ranking of such legal sources, is certainly not sufficient to provide a satisfying approach. What will be necessary is the in-depth analysis of empirical and normative structures focussed on the legal system of the territory in which such justice should be meted out and which includes international comparisons based on an understanding of the differences stemming from different legal cultures. This is especially important in the area of criminal sanctions and sentencing. In the field of sentencing, the Rome Statute provides for a system of sanctions and sentencing ranges but has not elaborated on the sentencing decision itself. If international justice pursues the goal of moral censure of grave human rights violations then the decisions themselves must communicate the consequences of human right violations that can be accepted as just and fair. The study on the “Punishment of Serious crimes” carried out for the ICTY in 2003 by the Max Planck Institute for Foreign and International Criminal Law26 demonstrates the enormous difficulties and challenges in terms of theory and method when trying to account for legal sentencing frameworks and sentencing practices. 4. What characterizes post-conflict societies? 4.1 The particulars of political and economic transition Many post-conflict societies have managed to initiate a process of transition which produced a rapid adjustment of justice systems to the standards of the Council of Europe and international human rights law and which enabled them to deal with minor and major human rights violations in the past themselves. The central and eastern European states are examples of rather quiet and rapid transitions into systems where the rule of law was implemented within a short period of time. The same is true for some South American and Latin American countries – e.g. Argentina27 – where, sometimes with foreign support, transitional processes seem to have functioned until now without relapses of major violence. However, the situation in South America seems to reflect less favourable conditions than those in Eastern Europe. This is true, in particular, as regards the economic conditions and prospects that seem to be worse in South American countries than elsewhere.28 South Africa has managed to stage a peaceful transition into a democratic future too. Different paths have been followed. Some countries chose not to dig too deep into the past and the use of amnesties and clemency procedures is an expression of the political will to bring an end to conflicts surrounding the question of who is a perpetrator and who is a victim.29 Others opted for truth and reconciliation commissions with a combination of searching for the truth, exposing the truth and turning only selected cases over to criminal justice. 26 Sieber, U.: The Punishment of Serious Crimes. A comparative analysis of sentencing law and practice. Freiburg 2004. 27 Feinberg, G.: The Death and Resurrection of Human Rights in Argentina: State Terrorism and Punishment for the Transgressors. Crime&Justice International 20(2004), pp. 11-18. 28 Feinberg, G.: The Death and Resurrection of Human Rights in Argentina: State Terrorism and Punishment for the Transgressors. Crime&Justice International 20(2004), pp. 11-18. 29 Lang, B.: Strafrechtsbezogene Vergangenheitspolitik. Politischer Wille und Strafrechtsrealität im Spannungsverhältnis am Beispiel von Deutschland und Südafrika. Freiburg 2005.


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The approaches adopted to respond to past violence and human rights violations thus vary and reflect individual and culturally contingent choices30 that are evidently dependent firstly on the type and scale of the violence and human rights violations which affected the different countries. 4.2 The basic conflicts The basic conflicts that have triggered violence in a certain territory most probably continue to exist in terms of interest and value conflicts.31 There have been considerable efforts to identify the “root causes” of conflicts. Such efforts have produced a range of factors thought to explain why and how conflicts emerge and persist and it has been stressed that roots causes have to be addressed effectively.32 Among such factors assumed to trigger violence, inequality, in particular the breakdown of state legitimacy, serious societal divisions and insecurity have been highlighted.33 However, what makes the situation in post-conflict societies more complicated is that in addition to such basic conflicts (which will always be conflicts surrounding participation in or exclusion from political and economic resources and power but also conflicts regarding values, honour, normative convictions, ultimately the construction of reality34) societies and social groups within these societies have experienced violence and atrocities as perpetrators and victims. Experience refers to memory and memories which tend to come back and haunt those who have been engaged in violence and those who have been victimized. The concept of collective violence goes beyond ordinary acts of violence as it is linked to both a collective memory and collective knowledge. It refers also to social groups and it expresses the existence of a “we and them” conflict that is both reductionist and dichotomizing.35 In contrast to conventional (individual) acts of violence, collective violence carries a message that is conveyed not only to individual victims but to all the members of both reference groups, that is the group the victim belongs to and the group the perpetrator claims to belong to. Thus, violence contains the message that violence can reoccur at any time between two groups surrounding the topic of membership and inclusion or exclusion. It contains also the message that violence can be instantaneously back. Collective violence may be considered to represent one elementary form of political domination, that of power established through action (Aktionsmacht36), however, it can also be seen as a more or less open challenge to the monopoly of power as the only legitimate form of violence in modern democracies. Forms of domination include categorization through prejudice and stigma, discrimination through differential treatment based on imputed group membership, segregation through group separation in physical and social space, ghettoization through the forced development of parallel social and organizational structures, and exclusionary violence ranging from interpersonal intimidation and aggression, to lynching, riots and pogroms, and climaxing with racial warfare and extermination. 30 Shaw, R.: Rethinking Truth and Reconciliation Commissions. Lessons from Sierra Leone. United States Institute of Peace. Special Report. Washington 2005 where it is pointed out that “truth telling” as valorized in Truth and Reconciliation Commissions might not fit into all cultural settings. 31 For accounts of the conflicts in Sierra Leone, Kosovo, Cambodia and East Timor see Ambos, K., Othman, M. (eds.): New Approaches in International Criminal Justice. Kosovo, East Timor, Sierra Leone and Cambodia. Freiburg 2003. 32 The Secretary General´ s Millennium Report. New York 2000, pp. 44-45. 33 Alley, R.: Internal Conflict and the International Community. Burlington 2004, p. 35. 34 Editorial Preface: Causes and Management of Conflicts. Journal of Institutional and Theoretical Economics 159(2003), pp. 1-15. 35 v. Trotha, T.: Über die Zukunft der Gewalt. Monatsschrift für Kriminologie und Strafrechtsreform 85(2002), pp. 349-368, pp. 360. 36 Popitz, H.: Phänomene der Macht. 2nd ed. Tübingen 1992.

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Violence does not come alone; it comes with justificatory systems of beliefs, attitudes and histories. Perpetrators and victims of violence add their experiences and memories to such systems of justification, which are in turn transferred to future generations. 4.3 Weak or failed states In many post-conflict societies the state either does not exist anymore or it is weak or failed. A weak or failed state is characterized by its inability to provide security (in every respect, including not only security from crime and violence, but also health,37 education, etc.38) and that means, in particular, a state not capable of enforcing a form of violence that is monopolized by public institutions (such as the police and the military) and deprivatized. Pessimistic accounts of state building argue that successful state (and nation) building was rather an exception and that outside the “old” Europe and some other places in the world a weak or failed state is rather the rule than the exception.39 But past research has demonstrated that even highly efficient states (in terms of monopolization of violence) under current social and economic conditions are not able to provide security in all instances. What has developed is a huge private security industry which has created many interfaces between public police and private police, private armed forces and public military and thus has led to new arrangements in providing security.40 Weakness or the failure of a state may be seen to be a condition for the outbreak of violence. However, state institutions may themselves be integrated into the exertion of violence and terror if they are, for example, hijacked by group interests, as was the case in Rwanda, or if the state organization serves to maintain by means of arbitrary and systematic violence a regime based on racism (apartheid) or genocidal ideologies. The main problems faced by weak or failed states are insecurity, mistrust, impunity41 and arbitrary violence (which have been established in the Rome Statute as the crime of genocide, crimes against humanity and war crimes). In the Rome Statute the weak or failed state, as well as its normative counterpart, the unwilling (or normatively failed) state, have been dealt with in Articles 17 and 57. Although it can be admitted that it was remarkable to touch at all on the issue of the weak or failed state in the Rome Statute, nevertheless the mechanisms available to overcome problems associated with a factually or normatively failed state are numerous and will in the foreseeable future – I assume – prevent efficient justice from being meted out. The mechanisms that have been introduced in order to overcome resistance by unwilling states or the inability caused by mere non-availability of suitable enforcement institutions are weak. The International Criminal Court has been established to put an end to impunity in the case of serious crimes against humanity, war crimes and, in particular, genocide. However, a couple of problems arise linked to the weak or failing state. These point first of all to the problem that any successful prosecution and trial require careful and efficient investigation of the facts and circumstances that can possibly establish such crimes. Here the main principle of the Rome Statute refers to the assumption that the authorities of the requested state will enforce requests put forward by the International Criminal Court. This rule also applies 37 Price-Smith, A.T., Daly, J.L.: Downward Spiral. HIV/AIDS, State Capacity, and Political Conflict in Zimbabwe. United States Institute of Peace, Washington 2004. 38 International Rescue Committee: Mortality in the Democratic Republic of Congo: Results from a Nationwide Survey. Conducted April - July 2004. 39 v. Trotha, T.: opus cited, 2002. 40 Dupont, B., Grabowsky, P., Shearing, C.: The governance of security in weak and failing states. Criminal Justice 3(2003), pp. 331-350. 41 Ambos, K.: Guest Editor´s Foreword. European Journal of Crime, Criminal Law and Criminal Justice (Special Issue on the International Criminal Court) 6(1998), pp. 319-324.


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if the state is weak and or if it has been directly affected by the alleged crimes against humanity or war crimes. Then a second problem that arises concerns the unwillingness or inability test required by Article 17 of the Rome Statute. Therefore, the prosecutor has to produce evidence that a state or territorial entity is either not of “good faith” or that a state’s criminal justice system is not capable of dealing with serious crimes of the nature covered by the ICC Statute. The latter, in particular, amounts to judging a complete criminal justice system42 which will be a task not well suited to a court and judges who certainly are not prepared for this type of analysis and judgement. Moreover, as Bergsmo has argued,43 there is a clear problem of legitimacy and consistency. The International Criminal Court will not be able to judge all serious crimes committed during the period of violence in question but will have to pick out the most serious ones. This again means that most probably the majority of cases will be left to be judged by the justice system still available or emerging in the post-conflict society. This may then be subject to criticism voiced most probably by victims and victims associations and would in any case lead to the question of why cases go back to a country whose justice system has been declared unable to prosecute and try such cases. When looking for example at Rwanda, such a situation clearly did occur, with a twotrack system that provides for an International Rwanda Court procedure and substantial law for the most serious cases (including compliance with all international standards on procedure and detention) and a GacaGaca or second class procedure for the mass of perpetrators. Experiences can be drawn also from East Timor where evidently problems of resources led to resorting mainly to national (Indonesian) law, as the application of international criminal law (in terms of crimes against humanity or war crimes) would have caused too many problems. However, the point was made that such strategies could have devastating effects on victims and the general public; in particular, the general preventive effect sought through applying criminal offence statutes addressing serious human rights violations is the first victim of such strategies. Another problem relates to the question of under what conditions national law enforcement and adjudication/trial in fact represents a serious attempt to deliver justice or whether fake trials are carried out that try to save human rights violators from being brought to justice. The Indonesian trials carried out to respond to some of the most serious atrocities committed by Indonesian military, police and administration before East Timor became independent are said to have delivered neither truth nor justice. The trials evidently produced a one-sided picture of the East Timorese situation and ended with the imposition of criminal penalties that certainly are too light in face of the atrocities committed.44 It is here that the necessity of bringing in not only international justice but also interfaces between international and local justice mechanisms is demonstrated very clearly. Such interfaces may be necessary because the local judiciary is assessed to be partial and therefore not suited to becoming fully independent. This was the case in Kosovo, with the result that independence of the judicial system was not given high priority 45.

42 Bergsmo, M.: The Jurisdictional Regime of the International Criminal Court (Part II, Articles 11-19). European Journal of Crime, Criminal Law and Criminal Justice 6(1998), pp. 345-363, p. 359. 43 Bergsmo, M.: opus cited, 1998, p. 360. 44 For a complete review of the trials see Linton, S.: Unravelling the First Three Trials at Indonesia´ s Ad Hoc Court for Human Rights Violations in East Timor. Leiden Journal of International Law 17(2004), pp. 303-361; see also Othman, M.: The Framework of Prosecutions and the Court System in East Timor. In: Ambos, K., Othman, M. (eds.): New Approaches in International Criminal Justice. Kosovo, East Timor, Sierra Leone and Cambodia. Freiburg 2003, pp. 85-112, p. 105. 45 USAID, USOP, OSCE: Judicial Assessment Mission II. December 21, 2001, p. 3.

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4.4 Deficits in security An immediate consequence of weak states concerns deficits in internal security.46 This is evident since as the state becomes weaker other forms of violence will prevail. In general, the strength of formal legal, law enforcement and justice institutions will vary inversely with the strength of informal institutions of social control.47 However, the emergence of informal social institutions of control brings with it fragmentation and arbitrariness, in particular as regards enforcement of rules. This creates a climate which breeds violence in every form. A theoretical underpinning could certainly be the general theory of anomie which fits perfectly with this situation of normlessness. However, large-scale violence which has affected a territory over a significant period of time will have produced private forms of violence. Moreover, weapons will be available in abundance as well as young men formerly engaged in collective violence who should be demobilized and integrated into labour markets and other social bonding systems. The wide availability of weapons and an abundance of young men eager to use such weapons have been addressed as the “Kalashnikov Syndrome”.48 Providing an answer to this syndrome may prove to be rather difficult when the economy is, at best, in the transition back to normal types of transaction. Small arms control is evidently difficult to implement effectively, given the estimates of light weapons and small arms available.49 Violence comes in various forms. It is important to note though that violence also includes domestic50 and ordinary violence. South Africa and Columbia are perfect examples of countries where ordinary violence and its rapid spread place a heavy toll on human life. Poor police and judicial performance may then amount to large-scale impunity, again placing a heavy toll on trust in the system of justice.51 Consequences concern problems in building a strong economy which, in a global economy, would be dependent on local and foreign investments not likely to grow when violence and other crimes are prevalent.52 4.5 Destruction of order and social solidarity: the aftermath of collective violence and wars A very simple consequence of collective violence and war is unpredictability and, with that, the denormalization of everyday life as well as the denial of social order (which is dependent on norms and the predictability of social action, which again has as a fundamental basis norms and institutions that enforce such norms and contain the promise that expectations as expressed in norms can be trusted).53 Destruction of social order becomes visible also through internal and transborder refugees. Refugee camps and displaced persons point to the problem that social order and social control as expressed through functioning communities have broken down. Displaced persons are particularly vulnerable to violence and

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Preuss, A.: Friedensaufbau durch internationale Polizeieinsätze in ethnonationalen Konflikten BosnienHerzegowinas am Beispiel der WEU-Polizei in Mostar. Münster 2004, S. 22ff. 47 Dupont, B., Grabowsky, P., Shearing, C.: The governance of security in weak and failing states. Criminal Justice 3(2003), pp. 331-350, p. 336. 48 Trotha, T.: The Future of Violence. Paper presentated at the Bamberg Symposium on Mediation, September 2004. 49 Small Arms Survey: Profiling the Problem. Graduate Institute of International Studies, Geneva 2001. 50 Report of the Secretary-General: The rule of law and transitional justice in conflict and post-conflict societies. United Nations, S/2004/616, p. 11. 51 Sibusiso Masuku, FOR BETTER AND FOR WORSE: South African crime trends in 2002 p.17. 52 NEDCOR: The NEDCOR Project on Crime, Violence and Investment. Main Report. Pretoria 1996. 53 V. Trotha, T.: Forms of Martial Power: Total Wars, Wars of Pacification, and Raid. In: Elwert, G., Feuchtwang, S., Neubert, D. (Eds.): Dynamicy of Violence. Processes of Escalation and De-Escalation in Violent Group Conflicts. Duncker&Humblot: Berlin 1999, pp. 35-60, p. 39.


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threats54 and refugee camps effectively convey the message that social order is absent. The destruction of order will again have adverse effects on trust.55 Mistrust can be observed in all post-conflict societies.56 This is first of all simply due to the state’s failure to provide security and the lack of a central authority to enforce general norms. However, trust does not evaporate altogether. What can be observed in post-conflict societies is that society is made up of larger or smaller groups (and corresponding territories) that carry with them a smaller or larger radius of trust which will be overlapping more or less with the radius of the phenomenon of informal social control as mentioned above. 4.6 The type of violence experienced When looking at post-conflict societies it is important to understand what kind of violence has taken place previously. The type of violence (or type of war) will be decisive for the possibility of de-escalation and the challenges put forward for reconciliation after violence has ceased.57 The South African Truth and Reconciliation Commission has a good chance of succeeding in the long run because most of the opponents (we and them) were not involved in acts of violence. The same is true for countries such as Argentina where violence in terms of torture, illegal executions and other killings (in the form of “making people disappear”)58 can be linked to a repressive state and its actors in terms of police and military. The task of reconciliation will be more difficult, and is perhaps a process which will continue for several generations if violence has been widespread, has affected large sections of the conflicting groups (as perpetrators or as victims) or has even turned into genocide or attempts at genocide. This type of violence (observed, for example, in Rwanda or Bosnia and Herzegovina) is an enormous challenge without a guarantee of success. Terrorism may be linked to conflict regions.59 Terrorist violence (as, for example, is raging in Iraq and Kashmir) is the continuation of war in the form of private and asymmetric war. International terrorism has introduced a new dimension, with either states or international terrorist groups sponsoring and supporting terrorist insurgencies. It is a prolongation of a conflict that may officially have been concluded by declaration or peace treaties. But, the visible effect is that violence has changed from symmetric violence to asymmetric violence. 4.7 Consequences of mass victimization Post-conflict societies are affected by the aftermath of mass victimization.60 The concept of victimization and theories developed by victimology have to change in order to study and respond to mass victimization.61 54

Alley, R.: Internal Conflict and the International Community. Burlington 2004, p. 77. Ross, C.E., Mirowsky, J., Pribesh, S.: Powerlessness and the Amplification of Threat: Neighbourhood Disadvantage, Disorder, and Mistrust. American Sociological Review 66(2001), pp. 568-591. 56 Preuss, A.: opus cited, 2004, p. 25. 57 Elwert, G., Feuchtwang, S., Neubert, D.: The Dynamics of Collective Violence – An Introduction. In: Elwert, G., Feuchtwang, S., Neubert, D. (Eds.): Dynamicy of Violence. Processes of Escalation and DeEscalation in Violent Group Conflicts. Duncker&Humblot: Berlin 1999, pp. 9-31, p. 28. 58 For an account see Feinberg, G.: opus cited 2004, pp. 12-14. 59 Ewald, U.: Victimization in the Context of War – Some Aspects of a Macro-Victimological Research Project. European Journal of Crime, Criminal Law and Criminal Justice 10(2002), pp. 90-97, p. 91. 60 See eg the attempt to summarize victimization by war in Croatia Turkovic, K.: Overview of the Victimological Data Related to the War in Croatia. European Journal of Crime, Criminal Law and Criminal Justice 10(2002), pp. 202-215. 61 See von Oppeln, C.: Victim´s Protection in International Law: The Normative Basis and a Look into the Practice. European Journal of Crime, Criminal law and Criminal Justice 10(2002), pp. 233-252. 55

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Mass victimization contributes to shape several crucial phenomenon.62 It feeds the collective memory of social or ethnic groups with feelings of hatred and the demand for revenge63 and it causes collective post-traumatic stress symptoms. Mass victimization certainly will either trigger or contribute to victimization narratives that recount who the innocent victims and the evil perpetrators are. As long as such narratives remain intact, they are themselves a strong sign of ongoing conflict and a powerful instrument in re-opening or triggering new violence. Collective memories tend to become part of justificatory knowledge systems which again are an essential condition of collective or terrorist violence. International criminal law and an international system of intervention have until now done as little as could have been done. Criminal liability of legal persons or territorial entities have not been accepted by the Rome Statute. Most of the services catering to victims is done by NGOs. Victims of violence and large-scale terrorism do not receive the attention they deserve, although it has been recognized that support and compensation for victims play a crucial role in justice systems that respond to individual or organized violence 64. 4.8 War economies and post-conflict economies: weak markets As regards the basic conditions that have to be taken into account, the specific economies that have developed during periods of civil war or other violent conflicts certainly have to be considered.65 Territories affected by large-scale violence tend to produce various types of war economies.66 Among such economies the drug markets have to receive special attention as they seem to be the most important, and they point also towards blurring lines between transnational organized crime, drug cartels on the one hand and warring parties or parties to a conflict on the other.67 However, the type of war economy that has developed may also explain the type of conflict and the needs that emerge after major conflicts have been settled.68 The importance of illicit goods such as drugs for conflict parties is explained, at least partially, by ordinary economies affected by international embargos and the dramatic profits that can be made from such markets (if transaction costs can be kept rather low).69 The particular economy likely to develop under conditions of large-scale violence is that of markets based on violence. Appropriation of resources is based to a significant extent on violence (or robbery) or the threat of violence. The special features of such markets of violence may differ. So the Kashmir conflict, for example, has produced special operation 62

See Jaukovic, J.: The Forms of Victimization in the Territory of the Former Yugoslavia. European Journal of Crime, Criminal Law and Criminal Justice 10(2002), pp. 109-116. 63 Sofsky, W.: Zeiten des Schreckens. Frankfurt 2002, pp. 187. 64 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, adopted by the General Assembly of the United Nations November 1985; UN General Assembly Resolution 40/34, 1985; Guidelines on the Protection of Victims of Terrorist Acts (Adopted by the Committee of Ministers on 2 March 2005 at the 917th meeting of the Ministers' Deputies); for an account of the Israeli system of victims of terrorism support see Sommer, H.: Providing Compensation for Harm Caused by Terrorism: Lessons Learned in the Israeli Experience. Indiana Law Review 335 (2003), pp. 335-365. 65 Wardak, A.: Building a post-war justice system in Afghanistan. Crime, Law & Social Change 41(2004), pp. 319-341, p. 322. 66 Preuß, U.K.: Krieg, Verbrechen, Blasphemie. Zum Wandel bewaffneter Gewalt. Berlin: Wagenbach 2002, p. 45. 67 Labrousse, A.: Territorien und Netzwerke: das Drogengeschäft. In: Jean, F., Rufin, J.-C. (Eds.): Ökonomie der Bürgerkriege. Hamburg 1999, pp. 379-400. 68 Bougarel, X.: Zur Ökonomie des Bosnien-Konflikts: zwischen Raub und Produktion. In: Jean, F., Rufin, J.-C. (Eds.): Ökonomie der Bürgerkriege. Hamburg 1999, pp. 191-218. 69 Nicolic-Ristanovic, V.: Illegal markets, human trade and transnational organised crime. In: van Duyne, P.C. et al. (eds): Threats and Phantoms of Organised Crime, Corruption and Terrorism. Nijmegen 2004, pp. 117-137, pp.124-127 describing the Balkan wars and the impact international sanctions had on the economies of Balkan regions.


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forces (recruited from surrendered militants ready to fight India’s cause). These forces evidently continue to profit from the violent conditions as these provide income through funds made available from outside (the central government) as well as income through the threat and use of force.70 Some conflict ridden regions have special natural assets such as timber or diamonds that can be exploited and used to nurture the warring factions.71 Timber played a role in subsidizing violent insurgents in Kashmir72 and fuelled the war in Cambodia. Another aspect of markets of violence is that they provide ample opportunities to make money, in particular for young men who would have problems entering promising careers even under the most favourable social and economic conditions. The advantages of a militant life are described as being considerable, even if the probability of a violent death is high.73 In an internationalized conflict the economic opportunities of markets of violence attract men from outside and inside.74 Recent years have seen a growing interest in exploring the relationships between terrorist movements and organized crime,75 in particular on the basis of network approaches.76 The focus has been put on the role of organized crime in financing terrorist groups, the role of underworlds and subcultures of crime for the recruitment of terrorists as well as the merging of terrorist and organized criminal groups,77 where the political dimension is but a synonym for black market activities.78 Alliances between revolutionary-political movements and underworlds, however, can be found already in the 19th century; alliances can be observed in the 20th century in the new terrorist movements in Germany as well as North America.79 Current descriptions of financing terrorist movements point to the important role illicit markets play in generating terrorist funds, in particular drug markets.80 The links to illicit markets may pose problems for terrorist groups, as such relationships will certainly have an impact on the support of terrorist groups amongst the general populace.81 The way funding of terrorist groups is organized will depend on local particulars, for instance, the type of illicit markets available. The range of activities that provide terrorist funding is wide. Terrorist involvement in bank robberies, extortion and blackmailing, kidnapping for ransom, drug trafficking and credit card fraud demonstrate that conventional property crimes also serve to increase terrorist funding. The existence of substantial funding and illicit economic opportunities may then be an important condition for the survival of terrorist organizations beyond the cessation of terrorist activities, if such organizations choose to 70

Habibullah, W.: The Political Economy of the Kashmir Conflict. Opportunities for Economic Peacebuilding and for U.S. Policy. United States Institute of Peace, Washington, June 2004, p. 7. 71 De Montclos, M.-A.: Liberia oder die Ausplünderung eines Landes. In: Jean, F., Rufin, J.-C. (Eds.): Ökonomie der Bürgerkriege. Hamburg 1999, pp. 219-242. 72 Habibullah, W.: Opus cited, 2004, p. 9. 73 See eg. for Kashmir Habibullah, W.: opus cited, 2004, p. 8. 74 Habibullah, W.: opus cited, 2004, p. 8. 75 Dishman, C.: Trends in Modern Terrorism. Studies in Conflict Terrorism 22(1999), pp. 357-362, p. 362. 76 Williams, P.: Transnational Criminal Networks. In: Arquilla, J., Ronfeldt, D. (eds.): Networks and Netwars: The Future of Terror, Crime, and Militancy. Rand, November 2001, pp. 61-97. 77 Dishman, C.: Terrorism, Crime, and Transformation. Studies in Conflict & Terrorism 24(2001), S. 4358. 78 See Silke, A.: In Defense of the Realm: Financing Loyalist Terrorism in Northern Ireland – Part One: Extortion and Blackmail. Studies in Conflict & Terrorism 21(1998), pp. 331-361; Silke, A.: Drink, Drugs, and Rockń´ Roll: Financing Loyalist Terrorism in Northern Ireland – Part Two. Studies in Conflict & Terrorism 23(2000), pp. 107-127, where it is pointed out that despite a robust truce illegal fund raising activities of loyalist terror groups in Northern Ireland continued for years. 79 Laqueur, W.: Terrorismus. Die globale Herausforderung. Frankfurt, Berlin 1987, pp. 41. 80 Shelley, L.I., Picarelli, J.T.: Methods not Motives: Implications of the Convergence of International Organized Crime and Terrorism. Police Practice and Research. An International Journal 3(2002), pp. 305-318. 81 See Silke, A.: opus cited, 2000, pp. 111 citing the IRA as an example.

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continue to exploit illicit economic opportunities.82 Finally, economic considerations may serve as a trigger for a change from terrorist groups to merely economically active organizations.83 The illicit economy thus serves to initiate a transitional process which may be understood also by the concept of markets of violence,84 where violence constitutes an essential element in economic transactions and where a successful entrepreneur is somebody who is capable of using violence in an efficient way. 5. How to respond to insecurity, disorder and mistrust 5.1 Placing trust in the leviathan The most important process that has to be initiated concerns the building and maintenance of administrative organizations that can provide security. In many cases this will amount to building a state. In fact, most of the proposals that have been made with respect to rebuilding societies after civil wars clearly speak out for re-establishing a state and state institutions that guarantee security for citizens. A strong state, although sometimes perceived to be the source of many problems, is certainly required. In many conflict and post-conflict areas it is not the strong state but the lack or weakness of a monopoly of legitimate power (and violence) which is the problem.85 Only a functioning state is thought to be able to recreate “trust among people” 86. Thus, relevant links are assumed to exist between security, the state and confidence or trust. It is required then that an inner state monopoly of violence is re-established. This requires, according to Elwert, that military power seeking to re-establish a monopoly of violence is superior to that of conflicting parties, that the use of violence is based on legal rules (and the rule of law), that everyday conflicts are effectively arbitrated and that arms are effectively controlled.87 Then the past has to be addressed in order to be able to respond to violence that has generated scores of victims and feeds memories and related feelings. Justice and other mechanisms of accountability have to be implemented in order to reduce the risk of such memories remaining the seeds of future conflicts (and retaliatory violence).88 Effectively monopolizing violence and effectively arbitrating conflicts in conflict or post-conflict societies is particularly in demand when it comes to questions of settling property issues and questions of compensation. In this respect intervention in post-conflict Bosnia and Kosovo is assumed to have functioned properly and effectively.89 In the introduction to Braithwaites’ analysis, the relationships between civil society, the market and the state, as well as the assumptions which are part of this relationship, are outlined. The result of such assumptions point to complexity and this complexity is, for instance, expressed in the long list of confidence-building measures as elaborated recently by 82

Silke, A.: opus cited, 2000, p. 124. See for example Schbley, A,H.: Torn Between God, Family, and Money: The Changing Profile of Lebanon´s Religious Terrorists. Studies in Conflict & Terrorism 23(2000), pp. 175-196. 84 Karstedt, S.: Terrorismus und «Neue Kriege». Kriminologisches Journal 34(2002), p. 129. 85 Hondrich, K.O.: Wieder Krieg. Frankfurt 2002, p. 17. 86 Schwandner-Sievers, S.: Humiliation and Reconciliation in Northern Albania. The Logics of Feuding in Symbolic and Diachronic Perspectives. In: Elwert, G., Feuchtwang, S., Neubert, D. (eds.): Dynamics of Violence. Processes of Escalation and De-Escalation in Violent Group Conflicts. Berlin 1999, pp. 133-152, p. 152. 87 Elwert, G.: Markets of Violence. In: Elwert, G., Feuchtwang, S., Neubert, D. (eds.): Dynamics of Violence. Processes of Escalation and De-Escalation in Violent Group Conflicts. Berlin 1999, pp. 85-102, p. 100. 88 Kritz, N.: Coming to Terms with Atrocities: A Review of Accountability Mechanisms for Mass Violations of Human Rights. Law and Contemporary Problems 59(1996), pp. 127-152, p. 127. 89 Carlowitz, L.: Settling Property Issues in Complex Peace operations: The CRPC in Bosnia and Herzegovina and the HPD/CC in Kosovo. Leiden Journal of International Law 17(2004), pp. 599-614. 83


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a group of experts.90 Complexity is also expressed in demands that call for the political and economic reconstruction of a comprehensive nature and as a fundamental condition for coping with the root causes of conflict.91 Alley has called for a three-legged structure for rebuilding societies which encompasses international assistance in the fields of justice, health, economy and education, the provision of security by reducing crime, availability of arms, impunity and effective demobilization, as well as the institutionalization of democratic processes such as elections.92 What is invoked here is the problem of weak or failed states, destroyed social structures and institutions and weak economies or markets, in fact all those areas which Braithwaite has described as being essential for establishing trust. The problem that has been identified, however, refers not only to complexity but also to the necessity of initiating and sustaining parallel processes of state-building structures, a peaceful economy and civil society. These processes are interdependent. It is evident that priorities have to be set when starting the reconstruction process and the first issue that has to be addressed concerns providing simple physical security. A second issue that has to be addressed from the very beginning refers to the justificatory systems that are linked to violence and whose capacity to initiate violent retaliation needs to be neutralized or reduced. Here, it is the development or invention of a new narrative common to the formerly conflicting parties that is of paramount importance. This, however, must be done by the conflicting parties themselves. Security is, according to all available knowledge, a central issue to post-conflict reconstruction. This has been confirmed in research that attempts to isolate those factors that explain the success (and failure) of post-conflict settlements. According to these findings it will be of utmost importance to address the security needs of the conflicting parties but also those which have not yet been drawn into the conflict. Security concerns are related to perceptions of what will influence those institutions, established after a conflict has been settled and necessary in order to provide security and order. On the one hand these are the police and military and the political institutions vested with the power to direct the police and military and, on the other hand, economically important institutions. Security concerns are evidently linked to the post-conflict allocation of political and economic power and the building of institutions that will hold such power 93. 5.2 Re-configuring arrangements of security providers The approach of the international community in attempting to re-establish security acknowledges that civilian police plays a crucial role. In October 2000, a UN Civilian Police Division was set up as part of the Department of Peacekeeping Operations. It has the task of building (local) police forces which are selected and trained according to international (in particular, human rights) standards.94 This again points to the importance of trust (and confidence) in institutions, in particular their capacity to deliver services and exert power in a neutral and impartial way. Establishing security therefore is not only dependent on the military’s capability to end large-scale open violence but (long-term and efficient) policing is required after military intervention has been concluded. Along with that the allocation of resources has to be considered. It is evident that long-term investments have to be made in 90 Meeting of Experts on Confidence- and Security-Building Measures, February 3 - 4, 2003, Miami, Florida: Illustrative List of Confidence- and Security-Building Measures. Bureau of Political-Military Affairs. Washington, DC, February 3, 2003. 91 Alley, R.: Internal Conflict and the International Community. Burlington 2004, p. 17. 92 Alley, R.: Internal Conflict and the International Community. Burlington 2004, p. 13. 93 Hartzell, C.A.: Explaining the Stability of Negotiated Settlements to Intrastate Wars. Journal of Conflict Resolution 43(1999), pp. 3-22, p. 4. 94 Preuss, A.: opus cited, 2004, pp. 29.

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civil policing. So, for example, as of February 2001, approximately 5000 CIVPOL officers have been deployed throughout Kosovo.95 The Mostar region may serve as an example for demonstrating the enormous problems that come with attempts to build up a civilian police force within a limited time period after large-scale violence, while trying at the same time to maintain order and security.96 Providing security poses problems also as regards the question of whether ordinary civil police should get involved in this task or whether the military (which in many instances will be the first on the ground to stop ongoing violence) should adjust to the phenomenon of changing wars (which will persist as private wars and asymmetric violence) on the one hand and the diversified security needs that emerge in post-conflict societies on the other hand.97 This overlaps with another problem. In the process of re-establishing security it is not only physical security that has to be addressed but justice has to be meted out when responding to ongoing and past violence. In particular, criminal justice in post-conflict societies is in danger of adopting what has been called an enemy criminal law which perfectly fits to situations where there is no longer a feeling of trust. An enemy type criminal law is different to the civil type of criminal law insofar as it envisages offenders or perpetrators who cannot or do not want to give a cognitive guarantee that they will behave as ordinary participants in social communication and who thus do not guarantee a cognitive minimum of trust.98 Such offenders produce in a certain way the picture that they have diverted from order and law permanently or that they have never thought about giving voluntarily that cognitive minimum which enables a minimum of trust that they will behave as individuals bound by law, norms and social institutions in the future. As regards the question of what type of offenders will be labelled as not providing these cognitive minimums, well known groups of suspects emerge. Among such groups we find those who can be characterized as being determined by (untreatable) rational choice and that is terrorist groups or organized criminals. Columbia is said to have gone through a process of introducing such enemy criminal law, for example, in the form of legislation creating a “judge without face” 99. However, this certainly is not an expression of efficient criminal law100 but an expression of the weakness of the state in preventing other than legitimate violence from occurring in a society. However, in a system that faces challenges from organized crime and terrorism, not only witnesses become vulnerable. Judges, prosecutors and police officers too are faced with serious risks of violent retaliation. In fact, one of the reasons why members of ethnic minorities in Kosovo have been reluctant to accept positions in the new justice system is out of fear for their security.101 This again is part of the security problem and is related also to the problem of impunity. Consequently, establishing security corresponds to a process of building social institutions that themselves make up the state and with the state a monopoly of violence that suc-

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USAID, USOP, OSCE: Judicial Assessment Mission II. December 21, 2001, p. 7. For a detailled account see Preuss, A.: opus cited 2004. 97 Haltiner, K.W.: Erfordern neue Militäraufgaben neue Militärstrukturen? – Organisationssoziologische Betrachtungen zur Verpolizeilichung des Militärs. In: Collmer, S. (ed.): Krieg, Konflikt und Gesellschaft. Aktuelle interdisziplinäre Perspektiven. Hamburg 2003, pp. 159-186 speaks in favour of the military that should adjust to the task of providing for security on the micro-level instead of remaining focussed on organized macro violence. 98 Jakobs, G.: Selbstverständnis der Strafrechtswissenschaft vor den Herausforderungen der Gegenwart (Kommentar). In: Eser, A., Hassemer, W., B. Burkhardt (Eds.): Die deutsche Strafrechtswissenschaft vor der Jahrtausendwende. Rückbesinnung und Ausblick. München: Beck 2000, pp. 47-56. 99 Aponte, A.: Krieg und Feindstrafrecht. Überlegungen zum „effizienten“ Feindstrafrecht anhand der Situation in Kolumbien. Baden-Baden 2004. 100 As suggested by Aponte, A.: opus cited, 2004, pp. 22-23. 101 USAID, USOP, OSCE: Judicial Assessment Mission II. December 21, 2001, p. 14. 96


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cessfully prevents other forms of violence. This is certainly a precarious enterprise, as Trotha pointed out in an analysis of the conditions of a strong state.102 In post-conflict societies we find various providers of security, although the state is weak. First, conventional public providers of security and order will still exist, such as public police or the military. However, a basic problem emerges here concerning the lack of accountability (in particular judicial mechanisms of control will have suffered and most probably widespread corruption will impact the building of impartial institutions). Moreover, the public will most likely have lost trust in police forces which, in many cases, will rather be part of the security problem than part of the solution.103 Therefore, it will be difficult for the traditional functions of police – that is maintenance of order and law enforcement – to be carried out.104 A second way of providing security in post-conflict societies concerns self-help and vigilante organizations that take the law into their own hands. Here, the basic problem is a propensity to arbitrariness and a potential disrespect for human rights. Although a certain sense of security will be restored among fragmented groups (as could be seen in Somalia, for example), it is likely that vigilante practices will in the long run fuel cycles of violence rather than put an end to them. A third approach to providing security comes with private security providers, in particular large international companies such as Executive Outcomes or Securities. The emergence of such security companies, however, is associated rather with paramilitary modes of action. Moreover, such companies of course sell security to those who pay for it. The security provided therefore will be restricted to particular interests and to a particular space, but evidence speaks for the existence of “collateral security” as private security providers tend to cater also to the needs of the environment of those spaces that are protected on the basis of contracts. A fourth mechanism for providing security may be seen in organized crime and mafia type networks (which most often will also be part of the informal institutions of social control which emerge in the process of state failure). Although mafia organizations and organized crime groups will first of all pursue their interests in terms of exploiting shadow economies (or post-war economies based on illicit commodities and services) there are two channels through which such criminal organizations will certainly provide also for security in the environments where they operate. A first channel is opened by the market mechanisms which themselves transform security into a market commodity. Security, under the conditions of a failed or weak state, will inevitably become a transactionable service. When looking for example at Columbia, the favelas in Brazil or poverty-stricken metropolitan areas in South Africa, Russia or even Japan, we can observe the important role organized crime plays in providing security and law enforcement in forms that may amount to extortion practices but may also involve functioning alternatives to inefficient criminal or civil justice systems. A second channel is available through informal systems of social control which, in many cases, will be the only way in which security can be delivered. Here, too, there may be an overlap between organized crime practices and other informal institutions that provide safety and (local) justice.

102 v. Trotha, T.: Ordnungsformen der Gewalt oder Aussichten auf das Ende des staatlichen Gewaltmonopols. In: Nedelmann, B. (Hrsg.): Politische Institutionen im Wandel. Kölner Zeitschrift für Soziologie und Sozialpsychologie 1997, pp. 129-165. 103 Preuss, A.: opus cited, 2004. p. 29. 104 Dupont, B., Grabowsky, P., Shearing, C.: The governance of security in weak and failing states. Criminal Justice 3(2003), pp. 331-350.

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International law enforcement and justice have to deal with such security and justice providers and should attempt to reconfigurate security. Reconfiguration must take into account also that policing and providing security in modern societies has a multi-lateral character.105 5.3 Re-establishing security and strengthening justice Security and justice are intertwined and both are linked to trust. An analysis of recent contributions to the field reveals two concrete models of how security, justice and trust can be re-established. The Zwelethemba model for governing security was developed for areas in South Africa.106 The model aims at peacemaking and consists of a peacemaking process that builds on a Peace Committee established by 6-10 people within a local community, known as the Committee. Conflicting parties bring their disputes before the Committee. The Committee follows a set of tested steps and a Code of Good Practice. A central provision of this Code of Good Practice says that force cannot be threatened or used. In the process of peacebuilding the Committee does not, however, deal only with reconciling the parties in that specific case. The Committee seeks also to contribute to the resolution of more generic problems of community development such as health, education and security. Gatherings are held to identify the needs and problems of the community as well as to explore possible solutions. Plans for action are then developed. The scheme resembles in many aspects community policing approaches that have been developed to respond to inner city problems of security and crime in North America and Europe.107 Then the approach of peace-making is built upon the concept of partnerships. Here, on an initial level, partnerships between the peace committee and local entrepreneurs are concluded. The partnerships are extended to police and local governments. The goal is to create local security networks108 which link civil society, the state and the economy. Sustainability of the networks is sought through funding by international agencies. For each gathering (30-40 per month) US$40 are paid, from which 50% go to the pockets of committee members and 50% to a community building fund. The approach adopted with this project centres around the local knowledge and capacity considered to be most relevant, but have also to be integrated with professional knowledge. Moreover, this type of security building enhances self-direction and promotes democracy. With the latter, civil society building is brought in. Justice is delivered also, however it does not rely on punishment but rather on traditional mechanisms of reconciliation and mediation. A second model was presented by Wardak. He suggested a model for Afghanistan which aims at integrating traditional, local cultures of justice and conflict resolution into state law and formal court systems as well as international standards. While in the Zwelethemba model the focus is on establishing security, the Wardak model takes justice as a starting point. He suggests establishing a jirga/shura unit (reflecting the local tradition conflict mediation process) with elected (and therefore trusted) elders (who have expertise in dispute settlement and legitimate social influence) in addition to a human rights unit which would be responsible for implementing international (human rights) standards.109 These units 105

See Favarel-Garrigues, G., Le Huerou, A.: State and the Multilateralization of Policing in Post-Soviet Russia. Policing & Society 14(2004), pp. 13-30. 106 Dupont, B., Grabowsky, P., Shearing, C.: The governance of security in weak and failing states. Criminal Justice 3(2003), pp. 331-350, pp. 342. 107 See for example Chicago Community Policing Evaluation Consortium: Community Policing in Chicago, Year Two: An Interim Report. Chicago, June 1995. 108 Dupont, B.: Security in the Age of Networks. Policing & Society 14(2004), pp. 76-91. 109 Establishment of independent human rights commissions is also underlined as a promising strategy by the Report of the Secretary-General: The rule of law and transitional justice in conflict and post-conflict societies. United Nations, S/2004/616, p. 11.


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should flank the state legal and court system (which itself should operate along the principles of sharia).110 In this model, civil society can participate too, in particular in the area of human rights, which has the potential to create new material for civil society institutions and are expressed also in the sharia tradition. The ongoing problems in Iraq demonstrate that peace, security, justice and state-building may prove difficult and may tend to generate further violence.111 5.4 Re-establishing legal structures and legal institutions A basic condition for re-establishing trust and safety concerns re-establishing state structures (or “Staatlichkeit”)112 and one central element in these structures concerns the justice system. When building a justice system, the following aspects must be addressed: justice as regards past atrocities, human rights violations or, more simply, crime and justice as regards a regular criminal justice system based on the rule of law and responding to ongoing crime and disorder. In providing justice in the case of past atrocities, however, there are several options. Among such options criminal law based responses to past atrocities and human rights violations exist alongside mediation mechanisms such as truth and reconciliation commissions.113 Criminal law based responses may therefore interfere with reconciliation, as has been stated with respect to Sierra Leone.114 The implementation of peace and trust building by reconciliation mechanisms may be affected by the suspicion that information and testimony provided in the reconciliation process may also be used as evidence in criminal trials.115 International law is developing in this respect. Article 71 of the Rules of Procedure and Evidence of the International Criminal Court addresses testimony given in the course of a confidential relationship generating a reasonable expectation of privacy and nondisclosure. The functions of the Truth and Reconciliation Commissions (TRC) require that perpetrators give open and valid information. Hence, the recognition of the privileges furthers the objectives of the Sierra Leone Special Tribunal on the basis of complementarity between the TRC and the Special Court, and their joint contribution to justice, accountability and healing in Sierra Leone.116 However, both bodies can work without conflicts or tension.117 They are partners in the struggle against impunity and in the attempt to find the truth.118 Truth and reconciliation commissions may also provide for an approach to juveniles who were involved as perpetrators in war atrocities and crimes against humanity, in particular as child soldiers.119 110

Wardak, A.: opus cited, 2004, pp. 335-338. See Jabar, F.A.: Postconflict Iraq. A Race for Stability, Reconstruction, and Legitimacy. United States Institute of Peace, Special Report. Washington, May 2004. 112 Preuß, U.K.: Krieg, Verbrechen, Blasphemie. Zum Wandel bewaffneter Gewalt. Berlin: Wagenbach 2002, p. 47. 113 Bacher, G.: Der Beitrag von Wahrheitskommissionen zur Friedenskonsolidierung und dauerhaften Versöhnung. Frankfurt 2004; Bettina Lang, B.: Strafrechtsbezogene Vergangenheitspolitik. Politischer Wille und Strafrechtsrealität im Spannungsverhältnis am Beispiel von Deutschland und Südafrika. Freiburg 2005. 114 Schabas, W.A.: Internationalized Courts and their Relationship with Alternativew Accountability Mechanisms: The Case of Sierra Leone. In: Romano, C.P.R., Nollkaemper, A., Kleffner, J.K. (eds): Internationalized Criminal Courts and Tribunals. Sierra Leone, East Timor, Kosovo and Cambodia. Oxford: Oxford University Press 2004, pp. 157-180, p. 159. 115 Schabas, W.A.: opus cited, 2004, p. 167. 116 Schabas, W.A.: opus cited, 2004, p. 172. 117 Jallow, H.B.: The Legal Framework of the Special Court for Sierra Leone. In: Ambos, K., Othman, M. (eds.): New Approaches in International Criminal Justice. Kosovo, East Timor, Sierra Leone and Cambodia. Freiburg 2003, pp. 149-171, pp. 169-170. 118 Schabas, W.A.: opus cited, 2004, p. 180. 119 Ambos, K., Othman, M.: Introduction. In: Ambos, K., Othman, M. (eds.): New Approaches in International Criminal Justice. Kosovo, East Timor, Sierra Leone and Cambodia. Freiburg 2003, pp. 1-7, p. 5. 111

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In some situations mixed tribunals have been established with local and international judges sitting over human rights and international humanitarian law violations. In East Timor it is, for example, the Special Panel within a district court which deals with such serious criminal cases.120 The Iraqi Special Tribunal has adopted a structure which permits the appointment of non-Iraqis as judges and requires the appointment of non-Iraqis as advisors or observers to trial and appeals chambers. This should contribute to the legitimacy and credibility of the special tribunal, in particular as regards acceptance by the international community.121 The question of how transitional justice systems should respond to ongoing crime in post-conflict societies depends certainly on the specific situation. South Africa, Argentina and countries in central or eastern Europe could enter a transition period on the basis of a well elaborated justice system (including law faculties, well trained lawyers etc.) and thus restrict efforts to adjustments of the system to demands coming from a range of human rights standards or set by the Council of Europe or the European Union. Others, however, find themselves in a situation where neither legal structures nor institutions are available anymore, as either civil war has extinguished most of the justice resources or successful separation (from another entity or from a past regime) has led to the need to adopt new laws and build new justice institutions. Several problems arise from this kind of transition. Among them we find questions related to the applicable law. As regards the question of applicable law, the various post-conflict societies have adopted different approaches. In East Timor the Transitional Administrator opted for the application of substantive criminal law of former ruler Indonesia as long as it did not conflict with internationally recognized human rights standards.122 In addition, the Transitional Administration of East Timor incorporated some provisions of the Rome Statute, that is genocide, crimes against humanity and war crimes. Criminal procedural law, however, was adopted in the form of the Transitional Rules of Criminal Procedure which refer essentially to the rules of the ICTR and the ICTY.123 In Kosovo, however, a completely new justice system had to be built,124 as is the case in Iraq and Afghanistan. Although all of these regions can, in principle, refer to past codification in areas of substantial criminal law and criminal procedural law, it is evident that transitional periods are characterized by the need to be able to resort immediately to a core of robust laws that can be implemented rapidly. This must be provided through a set of transitional codes that, without too many adjustments, can be applied as soon as military hostilities end. Current work at the US Institute of Peace carried out jointly with the Irish Institute of Human Rights prepares such transitional codes, which ultimately should be accepted by the international community (and with that the UN) in order to avoid that, in the future, extended periods of lawlessness contribute to problems faced by post-conflict societies.

120 Othman, M.: The Framework of Prosecutions and the Court System in East Timor. In: Ambos, K., Othman, M. (eds.): New Approaches in International Criminal Justice. Kosovo, East Timor, Sierra Leone and Cambodia. Freiburg 2003, pp. 85-112, p. 90. 121 United States Institute of Peace: Special Report. Building zthe Iraqi Special Tribunal. Washington, June 2004, p. 8. 122 Othman, M.: The Framework of Prosecutions and the Court System in East Timor. In: Ambos, K., Othman, M. (eds.): New Approaches in International Criminal Justice. Kosovo, East Timor, Sierra Leone and Cambodia. Freiburg 2003, pp. 85-112, p. 92, capital punishment, however, was also abolished by UNTAET, Sec. 3.3., UNTAET Regulations 1999/1. 123 Othman, M.: The Framework of Prosecutions and the Court System in East Timor. In: Ambos, K., Othman, M. (eds.): New Approaches in International Criminal Justice. Kosovo, East Timor, Sierra Leone and Cambodia. Freiburg 2003, pp. 85-112, p. 96. 124 USAID, USOP, OSCE: Judicial Assessment Mission II. December 21, 2001, p. 10.


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5.5 The need for a legal basis for policing and maintenance of order After military intervention that has brought to an end the hot phase of a violent conflict, situations quite often emerge which demand for secure conditions in society, essential for the maintenance of public order and the restructuring of civil society. Although the problem has been recognized,125 International Civilian Policing has been developing rapidly since the end of the Cold War126 and the UN alone has deployed some 7,500 police in Civilian Policing Missions,127 until now there have been but few efforts to study the specific problems linked to policing in post-conflict areas and to provide a statutory basis for those forces to whom have been entrusted the task of maintaining public order in post-conflict areas and after military operations have been concluded.128 From a legal point of view, efforts have been concentrated on criminal law enforcement and with that substantial criminal law, criminal procedural law and the legal basis for (criminal) detention.129 Thus, the discussion centred around those problems which contributed to creating the Rome Statute and establishing the International Criminal Tribunal, namely the obvious need to respond to serious human rights violations occurring during civil wars (in terms of war crimes and crimes against humanity) and to respond to serious crime by investigating and prosecuting such cases if they fall under the jurisdiction of the International Criminal Court. While criminal law based measures, including investigation of past (war) crimes and gross human rights violations, are based on the assumption of criminal offences and therefore a need to respond (in a repressive way) to the past, statutes underlying such measures are not geared to deal with situations which involve threats to public order or dangers that could develop into serous threats to the process of constructing a society based on the rule of law and democratic procedures. Nor are such statutes suited to responding to the need to re-create an environment where civil society can flourish and basic infrastructures of society are either re-established or maintained in order to allow for economic and social development and growth. The traditional approach in organizing police and police laws is therefore based on a double function of police who are an the one hand authorized to investigate crimes and support public prosecution services in launching formal criminal investigations and on the other hand are expected to establish or maintain public order or prevent dangers and risks for the social fabric. Therefore, the double function concerns repressive and preventive roles. This is why traditional law-making makes a distinction between criminal procedural law and police law. Procedural law defines powers of police while investigating crimes whereas police laws define goals and measures in maintaining public order and peace in society. Post (military) conflict situations are characterized by various problems which are only marginally associated with crime but which refer mainly to social order and peace in general. The situation in Kosovo, East Timor, Sierra Leone, Rwanda or in other failing or failed states points to a range of public order problems that risk obstructing the construction and maintenance of the very basis of civil society, and with that also the basis of proper conflict resolution and security. Among such threats and risks we find the emergence of 125

Report of the Secretary-General: The rule of law and transitional justice in conflict and post-conflict societies. United Nations, S/2004/616, p. 10. 126 So, in February 2000, the President of the United States signed Presidential Decision Directive 71 on Strengthening Criminal Justice Systems in Support of Peace Operations and other Complex Contingencies (PPD-71) which seeks to strengthen the role of civilian police deployment in post conflict areas. 127 See the accounts of civilian police missions at www.state.gov/g/inl/rls/fs/16554.htm 128 See Müller, E.: Internationale Polizei: Alternative zur militärischen Konfliktbearbeitung, research project conducted at the IFSH (Institute for Research an Peace and Conflicts): http://www.ifsh.de/ taetizkeitsfelder/ internationalepolizei 129 See for instance USAID, USOP, OSCE: Judicial Assessment Mission II. December 21, 2001, p. 9.

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black markets (in illicit goods and services as well as in legal goods), the emergence of red light districts and, in general, a shadow economy which provides for the emergence of organized crime, parallel societies, corruption and a lack of transparency, which then creates problems in establishing democratic structures. Post-war situations point to the vast availability of weapons and ammunition, explosives and the like, which are an the one hand commodities in black markets and on the other hand create demand for search and seizure patterns. Post-war situations give rise to the need to reconstruct and maintain basic and sensitive infrastructures. In particular, as modern civil war or "small or private wars" are linked to basic, that is ethnic, conflicts, ethnic tensions tend to create a permanent risk of new violent hostilities, reprisals and acts of vengeance. This includes again the danger of largescale riots and the need to monitor and possibly dissolve organizations/associations which play a role in fuelling ethnic hatred and tensions. The need for policing in post military conflict situations is clearly demonstrated by the Kosovo case. It was recognized by resolution 1244 (1999) relating to Kosovo and adopted by the Security Council at its 4011th meeting on 10 June 1999 that security forces are needed in order to pursue a variety of goals that usually fall under the authority of the police. Reports on the activities of the security forces mentioned in resolution 1244 show that order-related activities do not focus on criminal investigation and criminal justice but are to a large extent linked to the general goal of ensuring public order and public safety. It was declared that after just three months spent in Kosovo, KFOR troops had arrested hundreds of suspected criminals, confiscated quantities of weapons and ammunition, and restored the overall security and stability of the province. KFOR presence then, according to reports, allowed more than 775,000 refugees and displaced people to come back in Kosovo and feel secure again. A constant drop in the rate of murder, arson and looting was reported which was taken as evidence of a return to normal life. Special attention is paid to the protection of minorities, who are quite often the victims of ethnic tensions and hatred. Tons of weapons and ammunition have been seized or handed over to KFOR. The KLA has been disbanded and all KLA weapons have been stored in secure weapon storage sites under the control of KFOR. The transformation of the former KLA was organized through resettlement programs, the creation of the Kosovo Police Service and the stand-up of the Kosovo Protection Corps, which will be an unarmed civil relief organisation involved in the rebuilding of Kosovo’s infrastructure.130 Experiences in Kosovo (and most probably also those in other post-war regions) point to the need to respond to ethnic tensions, black markets and shadow economies and the need to construct and maintain basic social and technological infrastructure. This can only be done by policing and authority based on the rule of law. 6. Conclusions The situation in some post-conflict countries is characterized by a range of social problems among which insecurity as a consequence of a weak state, a weak economy and a weak civil society figure prominently. However, some post-conflict societies manage to initiate a process which leads to peaceful and efficient transition. Others experience extended periods of post-conflict violence and insecurity. Problems of insecurity are related to mistrust and with that the obvious need to re-establish trust as a basic condition for a soundly developing society. The challenges that come with the task of re-building trust are manifold, as the complexity of the need for the parallel processes of building state institutions, establishing the rule of law and justice and building a strong market economy and civil society do not lend themselves to a simple and straight-forward answer. The attempt to build trust always 130

http://www.nato.int/kfor/kfor/objectives.htm


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carries the risk of failure. A basic condition for building trust, however, is the accommodation of security concerns which will be possible only through the establishment of justice and security institutions that convey the credible message of being impartial, just and effective in delivering security and freedom from the fear of physical violence.

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What Victimology has to Offer in the Fight Against Terrorism Ksenija TURKOVIĆ* Abstract. This article discusses what victimology has to offer in the fight against terrorism and how victimology can benefit from the study of terrorism and large-scale victimization in general. First, the author offers reasons for studying terrorism from a victimological perspective, then attempts to devise a proper role for victimology in the study of terrorism and finally demonstrates that terrorism, although essentially a crime, requires and at the same time proves that victimology should deal with victimization in the broad sense and consequently should establish itself as an independent discipline distinct from criminology.

In the history of human thinking the most fruitful developments frequently take place at those points where two different lines of thought meet ... If they are at least so related to each other that a real interaction can take place, then one may hope that new and interesting developments might follow. Werner Heisenberg

Introduction Terrorism is a value-laden term, meaning different things to different people [1]. As the American civil rights leader Malcolm X stated, “[w]hat is a dream to you is a nightmare to us.” Thus, to be able to analyze and discuss terrorism efficiently and justly, and to implement a appropriate reaction to it by society, one should seek a definition of terrorism which is neutral and not dictated by the end sought or the type of perpetrator. Since no definition of terrorism has gained universal acceptance1 [2-3], for the purposes of this article, I suggest using the following working definition of terrorism: “Pre-meditated unlawful use of force or violence by an actor (state, non-state)2 [4-5] against any civilian population designed to instil terror in a segment of society in order to achieve or further any kind of political or social objective (illegitimate as well as legitimate)”.

*

Law School, University of Zagreb, Trg m. Tita 14, 10 000 Zagreb, Croatia. Defyning terrorism is almost an impossible task. No fewer than eight international conventions have been adopted by UN to which must be added regional conventions, such as those of the Council of Europe, and many national laws. All have failed to provide an adequate definition of terrorism. In their book Political Terrorism, Schmid and Jongman cited 109 different definitions of terrorism, which they obtained in a survey of leading academics in the field. 2 Terrorism is resorted to by state actors either against their own population or against the population of another country. It is also used by non-state actors, such as insurgent or revolutionary groups acting within their own country or in another country. Lastly, it is used by ideologically motivated groups or individuals, acting either inside or outside their country of nationality, whose methods may vary according to their beliefs, goals, and means. 1

K. Turković / What Victimology Has to Offer in the Fight Against Terrorism

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We still do not have a clear policy on how we should react to terrorism. The views and messages on the proper response to terrorism are often conflicting and confusing. We are urged to wage war against terrorism. We are told that only severe punishments will have deterrent effects. We are advised to address and eliminate the root causes of terrorism. We are warned that violence generates violence. We are told that it is difficult to deter terrorists – they are resolute in their decisions. We are cautioned that the cause of those who employ terrorism must not be rewarded. Terrorism is claimed to be a matter of war, law and prosecution, sociology, anthropology, pathology, criminology, all of these and more. However, attempts to suppress terrorism have proved far from satisfactory. In this article I will discuss what victimology has to offer in the fight against terrorism and how victimology can benefit from the study of terrorism and large-scale victimization in general. Victimology is a very young discipline attempting to formulate a coherent and integrated theory of the concept of victimization and to transform this theory into policy in order to prevent victimization, help victims and alleviate their suffering. The concept of victimization is a rather complex one – people may be subjected to or may suffer from an infinite variety of kinds, forms and types of victimization and thus there is an ongoing debate in victimology on whether to confine the scope of the discipline to victimization in the narrower sense, that is to criminal victimization, and to formulate victimology as a subdiscipline of criminology, or whether to extend it to victimization in the broad sense (general or global victimization), and thereby establish victimology as an independent discipline [6]. First, I will offer reasons for studying terrorism from a victimological perspective, then I will attempt to devise a proper role for victimology in the study of terrorism and finally I will demonstrate that terrorism, although essentially a crime, requires and at the same time proves that victimology should deal with victimization in the broad sense and consequently should establish itself as an independent discipline distinct from criminology. 1. Reasons to analyze terrorism through victimological lenses Among the specific reasons for applying the victimological approach to comprehensive analyses of terrorism, several deserve special attention: 1.1. The victim - individual or collective - plays an important role in terrorism because the terrorist’s violation of the victim’s autonomy is a way to express disobedience to the sovereign. By interfering with the rights of victims, terrorists make a distinction between “innocent” and “guilty” victims. Both have a symbolic value for them. This symbolic value plays a decisive role in choosing a victim. Often, in their choice of a ‘guilty’ victim, terrorists convict the community to which the victim belongs (state, ethnic or religious group, employers, etc.). On the other hand, terrorists often use the ‘innocence’ of the victims to pressure those who should protect them. Thus, studying victims of terrorism will contribute to a better understanding of the terrorist personality and motives and thereby to the development of appropriate preventive measures to protect potential victims of terrorism and to alert potential victims to dangers [7]. 1.2. The primary target of terrorist attacks is usually a state or those in power and not the actual victims themselves. Feeling endangered, states often suppress the rights of terrorists as suspects. However, a state might also marginalize the rights of victims of terrorism to the extent that those interests interfere with a state or abstract public interests. The task of victimology is to uncover the potential conflicts of interests between a state and victims of terrorism and to develop mechanisms to protect victims against state oppression and overreaching or insufficient engagement. In a state-centred system, both offenders and victims must be protected as persons against state oppression. Even though the prime interest of victimology is to secure the rights of victims, victimology should also fight for the rights of

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offenders (terrorists) [8] and should not be (mis)used or perceived as a threat to a defendant’s rights [9].3 In the fight against terrorism we must be careful not to increase state powers to the detriment of civil rights. The rights of victims should not be (ab)used in this respect. 1.3. The impact of terrorism-related victimization should be measured and the needs of victims of terrorist acts surveyed, not only to put in place appropriate assistance mechanisms to alleviate victims’ suffering, but also to find the right measure in our reaction to terrorism. The societies might, in the name of victims, overreact in their reactions towards terrorist acts and thereby create new squads of victims. Victims are very often less punitive than is generally believed. Through more accurate measures of the degree of victimization on the individual and social level, society may be able to structure its responses towards terrorism victimization more aptly. 1.4. There are offences in which the victim wants, initiates, and works diligently toward success of the offence, e.g. suicide, euthanasia, abortion, various “con games”, etc. These are so called self-victimizing,4 i.e. consenting or willing, victims [10]. The suicide terrorist is a typical willing victim [11]. 1.5. Data on terrorism demonstrates that there is a higher incident of terrorism in conflict and post-conflict societies and that, simultaneously, these societies are often a breeding ground for terrorists [12-14].5 It is possible to draw some important links between background conditions characteristic of conflict and post-conflict societies and terrorism, such as: 1) oppression and gross human rights violations, 2) unstable political conditions and 3) poverty, social and educational inequities [15].6 In unstable political conditions burdened with poverty and oppression, gross human rights violations are common and the oppressed rightly seek to escape their oppression. However, it is not so simple to escape oppression in a legally and morally acceptable way. Longitudinal research conducted by Rona Fields in Northern Ireland and Israel indicates that crossovers in roles from victim to terrorist are not so exceptional [16]. How widespread such a cross-over from victim to terrorist is remains an open question. If victims of oppression and human rights abuses are more susceptible to the call of leaders and are easy prey to be recruited into groups that use terrorism, then victimological studies may help us to analyze the dynamic of the entry process, and the role that oppression victimization plays in this process. It may also help us to avoid painting an inaccurately dichotomous view of reality.

3

For a long time victim's rights movement was perceived as reaction against civil rights activity and as a threat to defendant's rights. Since the earliest days of Victimology, various typologies have been devised to classify victims. Steven Schafer for example has suggested a typology based on victim responsibility, including unrelated, provocative, precipitative, biologically weak, self-victimizing and political victims. 5 Szabo developed models of integrated, para-integrated and non-integrated societies which help in global analyses of terrorism and policy which are likely to shape society's reaction to terrorism. Onwudiwe differentiates core, peripheral and semiperipheral nations and claims that peripheral and semiperipheral nations demonstrate higher incidents of terrorism. Among peripheral and semiperipheral nations conflict or post-conflict societies are more frequent. 6 U.S. officials see politics, educational inequities and social inequities as some of the reasons that lead individuals, such as bin Laden, to participate in terrorism. Many of the non-secular schools that seem to breed martyrs are directly linked to poverty because many of the parents are showered with gifts as a result of their child's decision to die for the cause. Some believe that a direct link exists between poverty and the madrassas in Pakistan because the schools are free. However, some studies show that members of certain terrorist organizations are not the poverty-stricken but are usually the well educated and well off. 4


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1.6 To prevent victims of oppression from turning to terror, it is important to build a stable civil society and a legitimate social norm that condemns terrorism. Both prove to be a very difficult task. In order to build a stable civil society in the aftermath of mass violence, everything that can promote communication within the group should be preserved and promoted. The search for social consensus, negotiation, mediation, restitution, and consultation should prevail over the culture of punitiveness. However, of utmost importance is the building of an acceptable joint narrative about what happened and why. To be able to build this narrative we have to address the issues of victimization, for which the most important tool is victimological research. Such an approach would enable us to offer victims of oppression more than remedial aid and comfort, which, up to now has proved insufficient in combating terrorism. Victimological research and findings might help us to define the social norm condemning terrorism that will be acceptable in a concrete society7 and could provide guidance on internalizing that norm in places where disaffected8 individuals may be inspired to join terrorist movements [17]. 2. Role of victimology in the fight against terrorism The overview of the above reasons demonstrates that victimology could help to combat terrorism on two fronts. Primarily, to research, understand and remedy victimization related to terrorist activities (the main subject of interest here are “classic” victims of terrorism as a criminal act, i.e. victimization resulting from terrorism) and secondly, to study some of the root causes of terrorism and contribute to the development of appropriate preventive measures (the main subject of interest here are victims of oppression and human rights abuses, i.e. victimization in the broad sense). In developing strategies to address these two separate yet interconnected issues, it is necessary to focus on policies intended to prevent situations of victimization as well as policies intended to assist victims.9 2.1. Addressing victimization resulting from terrorist activities Knowledge of crime-related victimology should be applied when addressing victimization resulting from terrorist activities. Terrorism is a crime and victims of terrorism are victims of crime, though they have certain specific characteristics. First, we are dealing with collective and symbolic victimhood.10 Second, the scope of the impact of terrorism is much greater than an individual criminal attack. Third, the feeling of helplessness experienced by victims of terrorism is much greater. Our primary task should be to research victimization resulting from terrorist activities and, on the basis of collected empirical data, formulate a theory of terrorism-related victimization. Since at present there is no generally accepted definition of terrorism, the best we could do is develop sound explanatory propositions and models that could later be united in a coherent theory. In devising victimization surveys, existing victimology literature could serve as an important guide. Crime victim surveys developed within classical crime-oriented victimology

7

When norm is imported from the outside and imposed on local population the norm might be perceived as a reinforcement of oppression. 8 The word disaffected is deliberately chosen as it is not only poor people who join these networks, but also middle and upper class individuals. This suggests some acute sense of alienation, not just economic disempowerment. 9 This means that the approach developed by critical victimology is in particular helpful in deconstructing terrorism [18]. 10 The injury itself is not important but the message that this injury is supposed to convey.

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should be used as a template,11 but we should as well look for new mechanisms better suited to situations of mass victimization. Since terrorist acts are well known, the dark figure is not an issue. Surveys should instead be concentrated on actual known victims, as well as on the post-victimization effects they suffered, such as their reaction to victimization, why and how the victim entered the dangerous situation, the extent to which victims of terrorism bear a functional responsibility for their victimization (if at all they do), victims’ experience of interaction with the criminal justice and legal system and with various agencies rendering service to victims of terrorism (their performance and quality). Surveys should also measure levels of fear of terrorism among the general population. These will provide a great deal of information for the study of terrorism-related victimization. On the basis of such theoretical knowledge and understanding it will be easier to further develop applied victimology adjusted to the special needs of victims of terrorism. We will be better equipped to address issues such as whether victims of terrorism need special treatment within the criminal justice and legal system in comparison to other crime victims, how victim service programs might most effectively meet the special personal and emotional needs of victims of terrorism, the best way to reimburse the victims of terrorism, whether some special victim's rights need to be conceptualized in order to protect the interests of victims of terrorism, whether there is a discrepancy between the objective risks of terrorism victimization and a subjective perception of those risks, etc. All these should be done with the goal of preventing victimization related to terrorism, aiding victims of terrorism, and reducing their feelings of victimization. To accomplish these we should provide victims with measures of protection, assistance and relief. 2.2. Addressing victimization as one of the root causes of terrorism Uprooting the causes of terrorism is sine qua non for overcoming it [19]. The causes behind terrorism are multiple. The environment in which terrorism flourishes holds part of the answer. War victimization, human rights victimization and oppression are some of the multiple root causes of terrorism. I do not claim that oppression is a single root cause of terrorism, but certainly it is a significant one and thus we should deal with it in an adequate way. Despite the vast amount of ad hoc and specific activities in the field, a general understanding of the social and psychological implications and the scope and nature of large-scale victimization and its relation to terrorism still needs to be developed. For this, victimological research is particularly appropriate. It offers a series of theories and methodologies by which to organize and pursue our understanding of war - victimization, human rights abuses or general oppression. Victimological research into oppression would enable us not only to quantify oppression but also to analyze its shapes, sources, impact and remedies. It would offer an opportunity to analyze the behaviour of victims of oppression and how they respond to victimization. Individual and collective responses range from rebellion, resistance, submission and accommodation to that of support. In our fight against terrorism it is important to find out why some victims of oppression submit and others rebel, why in their rebellion some of them opt for terrorism and to what extent is opting for terrorism the unintended outcome of psychological and social factors typical of oppressed societies, and to what extent is it a wilful choice. Terrorism is a top-down phenomenon with the leaders on the top and the followers on the bottom [20]. Both are usually coming from the same ranks of victims of oppression and human rights abuses. Thus we should conduct research on mass victimization and mass violence to better understand its causes, consequences and characteristics and find out the needs of victims of oppression in order to formulate adequate victim assistance responses 11 The best known are victimization surveys conducted in the United States under the title “The National Crime Survey” and international crime surveys (ICVS).


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and in this way reduce the number opting for terrorism. Experience teaches us that retributive criminal justice, delivered in whatever form, might do little to convey and structure justice and reconciliation in societies affected by mass violence and thus might do little to prevent the growth of terrorism [21-25].12 Therefore we should search for ways in which victims of mass victimization could achieve a more permanent sense of justice (reintegration including, to whatever extent possible, personal reconciliation, reparation including financial restitution, traditional retributive justice, truth telling, etc.) and ways of keeping enduring attention after some time – address frustration and provide not only immediate but also long-term assistance to the victims. Our policy responses to mass victimization must not be guided by globalization agendas but should be founded upon contextual inquires for which victimological surveys are crucial. We should recognize the uniqueness of each incident of mass victimization and try to construct a unique response to each based on thorough research on local needs.13 The voices of the affected local population (victims) are crucial in determining adequate and effective security responses. We should acknowledge the experience of the victims of oppression, address their problems and needs, offer them effective relief and help them to liberate themselves. Victimological studies could prove valuable in testing the applicability of classical restorative justice mechanisms in situations of mass victimization and in shaping innovative, restorative justice responses that would be appropriate for dealing with mass victimization. Victimological research and restorative justice initiatives might help to address complex historical realities - questions involving the past and issues of nation-building involving the future, supplement findings of individual guilt with findings of collective, institutional, organizational, and governmental responsibility and flesh out broad complicity and passive acquiescence that often constitute an important structural condition that allows human rights abusers (state or non-state) to perpetrate their abuses. However, there are important distinctions to be made between terrorist leaders and their followers. Their motivation and behaviour is very different. Leaders are far more important than followers: they recruit followers, inspire and offer rewards to them and their families and persuade them to become martyrs, often by exacerbating one’s sense of loss of security and abusing people’s fears. They are masterminds of manipulation. Leaders select the target, time and place for the terrorist act. In making their decisions they often follow certain strategic logic. Their purpose is to accomplish certain international or domestic goals by whatever means. Followers, on the other hand, do not act independently. They are part of a complex organizational structure. They identify with the group. They usually act out of rage or from intense, exacerbated feelings of indignity, frustration and hopelessness. Powerless to make a change in their society, under the influence of terrorist leaders, they turn their negative energy outward in the form of terrorist acts. Often they are double victims, victims of their leaders and victims of oppression, abuse of power, gross human rights violations, war, etc. It is very difficult to deter them. Thus, although leaders and followers are usually coming from the same ranks of victims of oppression and human rights abuses, in formulating adequate responses to terrorism we should deal with them to a certain extent in a different way. The issue revolves around a way to make followers less susceptible to the calls of

12 We should further investigate from a victimological point of view the dissonance between victims and the retributive criminal justice system in the framework of international and mixed fora. In particular, it would be prudent to examine “disconnects” that have existed between ad-hoc tribunals adjudicating mass atrocities in Rwanda and the former Yugoslavia and the communities for which these tribunals were designed to engineer justice and accountability. 13 We should be aware that certain types of cultural and community customs would provide radical differences in victim definition. Some people would be defined as victims within one society while others who suffered similar fate would not be perceived as victims if they were in another society. Thus we should not apply exclusively a western perception of victimhood in identifying victims of oppression.

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the leaders and a way to deter the leaders (organizations) from sending followers on terrorist missions. The more repressive towards followers we are, the more we make them look like martyrs to be emulated by other terrorists, which might contribute to breeding new terrorists willing to sacrifice their lives. Thus it seems that in relation to followers we must concentrate more on prevention than repression. On the contrary, repressive action towards leaders - punishing them for using terrorism and in this way making terrorism as a course of action less attractive to other potential leaders - seems to be more effective than preventive action. Victimological studies could help to find an appropriate balance between retributive and restorative justice in the fight against terrorism - to what extent restorative justice should be used as an alternative to retributive justice and to what extent they should supplement each other in dealing with mass victimization characteristic of terrorism (either as a root or as a consequence), mass violence and collective guilt. Furthermore, victimology could provide useful guidance in determining the proper role of victims of terrorism in prosecuting terrorist leaders and in choosing appropriate fora. Victimological studies could provide valuable data on the query of whether to internalize or externalize justice – which proceedings against terrorist leaders (international, mixed or domestic - the state from which victims or terrorist leaders are coming)14 have a more deterrent effect, which would provide a more effective way to build a legal and social norm widely accepted in the society from which terrorists are recruited that condemns terrorism and which are capable of creating shame and thus discrediting ex ante terrorist attacks. Also, victimological studies could reveal the ways in which followers are victimized by their leaders. Such an awareness might make followers less prone to volunteer for martyrdom. However, any research of this kind should be extremely culturally sensitive. 3. The need to expend the scope of victimology – development of humanitarian victimology Victimology began as a broad humanitarian concern for human rights and all victims [26],15 but it has evolved narrowly, abandoning all victims and emphasizing solely the victims of crime. Terrorist acts contain elements of both a criminal act and an armed attack which results in mass victimization [27]. Massive victimization characteristic of terrorism (either as a root or as a consequence) requires new policies and cross-cultural research on victims (in particular the genesis of mass victimization - why it occurs, the entering process and crossover from victims to terrorists in societies with protracted conflicts and how it could be effectively prevented, the impact it has on individuals and society as a whole) and victim’s assistance as well as the development of supranational victim assistance services and programs. In today’s world, victimization as a result of an abuse of power, social upheaval and global contravention of basic human rights has increased exponentially and we must de-

14 Possible fora include: (1) the International Criminal Court ("ICC") , which came into existence on July 1, 2002, (2) a new ad hoc international tribunal or adjudicatory body; (3) a tribunal previously created by the Security Council under Chapter VII of the U.N. Charter (i.e., for the former Yugoslavia ("ICTY") or Rwanda ("ICTR")) if the mandate of one of these pre-existing tribunals is expanded; (4) special institutions negotiated between the United Nations and the afflicted country (as is the case for Sierra Leone and, prior to abandonment by the United Nations, was intended for Cambodia); (5) U.N. - administered tribunals operating at the national level (for example, in East Timor and Kosovo); (6) international military commissions established by the foreign countries; or (7) domestic courts. 15 Beniamin Mendelshon devised the term 'general victimology' which subsumes five types of victims, the victim of a criminal, one's self, the social environment, technology and the natural environment. According to him victimologists aim to “investigate the causes of victimization in search of effective remedies”. He conceptualized victimology as a very broad enterprise with extensive implications.


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velop a research agenda in victimology beyond that of the victims of classical crime. Many have already urged for an expending scope of victimology [28-30]. Thus, to respond effectively to the challenges of terrorism, mechanisms of classical crime-oriented victimology should be combined with mechanisms developing within a newly emerging area of victimology, which might be called humanitarian victimology, supranational victimology or mass victimization-oriented victimology. Humanitarian victimology could significantly assist in resolving many complex issues related to the relationship between large-scale victimization due to oppression and terrorism and in creating appropriate strategies related to restoring feelings of security in post-conflict societies in an effort at counter-terrorism. In this respect there is a lot to be learned from classical victimology which deals with classical crimes. For instance, a methodology by which to organize and pursue our understanding of oppression, its shapes, sources, impact and remedies, a series of victimological theories, a set of victimological questions such as the problems and needs of victims of oppression, how to offer effective relief to victims of mass violence and whether victims of oppression bear a “functional responsibility” for their victimization. Classical victimology could also help us to identify strategies which work and mistakes to be avoided. However, to identify promising victim assistance programs and preventive measures for dealing with mass victimization we should collect comprehensive multinational data on mass victimization (regardless of its source: war, terrorism, abuse of power, etc.) and its consequences. Therefore cross-cultural and multinational research on mass victimization, mass violence and victim assistance in situations of mass victimization and mass violence should be conducted. Mass victimization and mass violence should not be defined and understood in the narrow terms of criminal law but in the broader terms of human rights [31] or the even broader terms of human suffering. The recent extension of criminal law to the international context (development of supranational criminal justice, retributive as well as restorative) and the readiness of the world to face challenges of mass victimization resulting from terrorism, war, abuse of power and other forms of oppression have prompted further development of victimology on the supranational level. Victims’ rights, standards for assistance to victims, victim services and violence prevention programs should be established on a supranational level and an international network of information dissemination and sharing, training and technical assistance on the subject of victims’ rights should be created, including international victim crisis response teams that would be able to respond quickly to crisis situations of mass victimization in which national responses may prove insufficient. Specific measures addressing terrorism-related victimization must be created corresponding to the characteristics of the victimized group, the circumstances in which that group has been victimized and the type of victimization. Supranational victimology should not be confined only to issues of international crimes (principle of universality, destruction of safe havens, victim participation in criminal process, legal aid to victims, subsidy of costs associated with proceedings, etc.), but should deal with mass victimization in broader terms. The new symbiosis of victimology, human rights and humanitarian law offers an excellent opportunity to finally conceptualize victim’s rights as human rights [32] and to use them as a vehicle to promote victim’s interests.16 Research should help us to identify the victim’s genuine interests in situations of mass victimization and our responses on the national and supranational level should be adjusted accordingly. However, here, even more than in classical crime-oriented victimology, we must be wary of possible political manipulations. 16 Elias suggests that victim's rights movement must resurrects itself as a person's rights movement and that victims must enyoj rights as persons and not as victims.

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4. Conclusion Victimology can help to examine structural sources of terrorism in a new light and find more effective preventive mechanisms, taking into account the perception of victims of terrorism and alternatively the perception of terrorists as victims of oppression and human rights abuses, poverty and other kinds of deprivation. There is a need to acknowledge both types of victims (victims of terrorism and terrorists as victims of oppression) and contextualize their victimization within a broader socio-economic and political framework. To understand mechanisms beyond each of these two types of victimization we have to look beyond individual actions, at the actions of the state, intergovernmental and international organizations and their agencies. Consequently, in order to prevent terrorism from occurring victimologists should look at, and simultaneously work with, two communities: the one from which terrorists are recruited and the other towards which terrorist acts are directed. The needs of these two communities need to be understood in a holistic sense. In identifying these needs, victimological research on terrorism (its causes and consequences in terms of mass victimization) should send out a clear message that, on the one hand, terrorism may never be used as a legitimate preventive measure of human rights abuses and, on the other hand, that intervention, whether judicial or military, can never substitute prevention in the fight against terrorism [33]. In addressing terrorism and other forms of mass victimization victimology should, and already has to a certain extent, made strides in the supranational arena. At the same time it should as a matter of necessity broaden its area of interest from crime victims to victims of human rights abuses (gross violations of economic, social and cultural rights, religious discrimination and intolerance). All these bring together victimology, human rights, humanitarian law and combine them into something we might term “humanitarian victimology.”17 Ideas and initiatives summed up under the notion of humanitarian victimology trigger an interesting development in the field of victimology which was, perhaps, for far too long concentrated exclusively on crime victims. Humanitarian victimology is, in a way, a challenge for classical, crime-oriented victimology. It provides a broader conception of victimization and victim rights, promotes a broader analysis of social sources of victimization, offers the opportunity to re-examine a set of existing victimological theories and definitions as well as the current methodologies used in crime victim research and studies. It helps to bring victimology as a science back to its original purpose – to assist humankind in minimizing human suffering, to study all victims and not just victims of crime, and to be victimand not violation-oriented [35], exactly as envisaged by Benjamin Mendelson [36] when, over fifty years ago, he began to dream of the contours of this new discipline.

References [1] M.C. Bassiouni, 'Legal Control of International Terrorism: A Policy-Oriented Assessment', 43 Harv. Int'l L.J. 83 (2002) pp. 84-85. [2] E. Hugues, 'La notion de terrorism en droit international: enquéte d'la definition juridique', J.D.I., (2002) p. 753. [3] A.P. Schmid & A.J. Jongman, Political Terrorism: a new guide to actors, authors, concepts, data bases, theories and literature (Amsterdam, New York 1988). [4] M.C. Bassiouni, loc. cit. p. 84. 17 The term was first used during the XI Symposium on Victimology, 2003, held in Stellenbosch, South Africa [34]. I am introducing this term because it simplifies discussion and is easy to remeber though I am fully aware that it might contribute to further fragmentation of victimology (crime victimology, humanitarian victimology and so forth) which might not be warranted.


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[5] C.L. Blakesley, 'Ruminations on Terrorism and Anti-Terrorism and Literature', 57 Miami L. Rev. 1041 (2003) pp. 1060-61. [6] E.A. Fattah, Understanding Criminal Victimization (Scarborough, Ontario 1991) pp. 23-24. [7] R. Ottenhof, 'A Criminological and Victimological Approach to Terrorism', in G. Doucet, Terrorism, Victim and International Responsibility (Paris 2003) p. 6. [8] M.D. Dubber, Victims in the War on Crime: The Use and Abuse of Victims' Rights (New York 2002) pp. 245-334. [9] T.H. Maroney, 'The Struggle Against Hate Crime: Movement at a Crossroads', 73 N.Y.U.L.Rev. 564 (1998), p. 577. [10] W.G. Doerner & S.P. Lab, Victimology (Cincinnati, OH 1998, 2nd ed.) pp. 7-8. [11] Z. Šeparović, 'International Terrorism and its Victims', paper submitted for the XIth International Symposium on Victimology, 13-18 July 2003, Stellenbosch, South Africa. [12] D. Szabo, Science et crime (Paris and Montreal 1986) p. 218. [13] I.D. Onwudiwe, The Globalization of Terrorism (Burlington, USA 2001) p. 50. [14] J.E. Mendez, 'Human Rights Policy in the Age of Terrorism', 46 St. Louis L.J. 377 (2002) p. 402. [15] Y. Wu, 'Global Responses and Recourses to Terrorism', 25 Whittier L. Rev. 521 (2004) pp. 526-31. [16] R. M. Fields. ‘Research on the Victims of Terrorism’, in: A. Soskis and F.M. Ochberg, eds., Victims of Terrorism (Boulder, Col. 1982) p. 142. [17] M.A. Drumbl, 'Victimhood in our Neighborhood: Terrorist Crime, Taliban Guilt, and the Asymetries of the International Legal Order', 81 N.C.L. Rev. 1 (2002) p. 13. [18] On critical victimoloy see R.I. Mawboy, S. Walklate, Critical Victimology (London, New Delhi 1994). [19] For the opposite opinion see A.M. Dershowitz, op. cit., pp. 24-29. [20] A.M. Derschowitz, Why Terrorism Works (New Haven 2002) pp. 29-33. [21] J. Braithwaite, Crime, Shame, and Reintegration (Cambridge, New York 1988) (examining various criminological theories). [22] M. Minow, Between Vengeance and Forgiveness: Facing History After Genocide and Mass Violence (Boston 1998) (discussing the inadequacy of a legal response to satisfy victims of horrible atrocities). [23] K. Roach, Due Process and Victims' Rights: The New Law and Politics of Criminal Justice (Toronto 1999) (discussing the place of crime victims within the criminal justice system). [24] M.A. Drumbl, 'Punishment Postgenocide: From Guilt to Shame to Civis in Rwanda', 75 N.Y.U. L. Rev. 1221 (2000). [25] The terms were used by M.A. Drumble, loc. cit., p. 13. [26] W.G. Doerner, S.P. Lab, op. cit., pp. 13-15. [27] M.A. Drumbel, loc. cit., p. 4. [28] M.C. Bassiouni, 'The Protection of «Collective Victims» in International Law', in M.C. Bassiouni, ed., International Protection of Victims (1988) pp. 181-192. [29] M.A. Young Rifai, ‘Victimology: A Theoretical Framework’, in H.J. Schneider, ed., The Victim in International Perspective (Berlin, New York 1982) pp. 65-78. [30] R.Elias, The Politics of Victimization, Victims, Victimology and Human Rights (New York 1986) pp. 194-95, 199, 217-220. [31] R.Elias, op. cit. [32] R. Ellias, 'The Law on Persenhood: A Review of Markus Dirk Dubber's Victims in the War on Crime: The Use and Abuse of Victim's Rights', 52 Buffalo L. Rev. 225 (2004) pp. 252-53.

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[33] Against intervention spoke also M.A. Drumbl, op. cit., p. 25. [34] Rapport by Professor Richard Harding, Rapporteurs Reports, http://www.aic.gov.au/ publications/proceedings/27/rapporteur.pdf. [35] M. Sassoli, ‘The victim-oriented approach of International Humanitarian Law and of the International Committee of the Red Cross (ICRC)’, in M.C. Bassiouni, ed., International Protection of Victims (1988) pp.153-157. [36] B. Mendelsohn, ‘Victimology and the Technical and Social Sciencies: A Call for the Establishment of Victimology Clinics’, in I. Drapkin & E.C. Viano, eds., Victimology a New Focus (Lexington, Mass. 1974) pp. 25-35.

II. General Understanding and Victimological Research of Large-Scale Victimization



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Between sacrification and victimization On political semantics and its strategic functions Karsten FISCHER Abstract. Other than in criminology and the penal system, victimology still awaits due attention within the social sciences and political theory. This is all the more astonishing since its political relevance is evident and mirrored by complex semantics. Within the political realm sacrifices for certain values are demanded – from the relinquishment of claims in favour of a balanced national budget to sacrificing one’s life in wartime – whereas elsewhere there is talk of victims of welfare state redistribution, social discrimination and crime as well as of armed conflict. Therefore, these political semantics are an obvious place for examining in more detail the strategic functions they serve.1 For this purpose a typology of sacrification and victimization respectively is drawn up first (part I), from where their socio-political meanings can be differentiated and shifts in those meanings diagnosed (part II). Also, I will show that the politico-rhetorical positioning between sacrification and victimization is of crucial importance for the semantic settlement of political disputes, while self-description clearly differs from outside perceptions. From here, the political implications of sacrification and victimization discourses in postheroic2 societies can be considered (part III).

I. Towards a typology of sacrification and victimization

In the 20th century a powerful sacrifice-rhetoric unfolded, which until the end of World War II was mainly aimed at the war itself. With the beginning of the Wirtschaftswunder (economic miracle) this rhetoric took the shape of victimization discourses and shifted in emphasis toward traffic issues, the dark side of technological progress and finally, since the end of the 80s, to issues of discrimination and political oppression and persecution. Even so, there is no established theory of sacrifice or victim in the social sciences. Both terms have received attention only as distant characteristics of archaic societies although, in everyday language as in public, there is often talk of traffic accident victims, victims of crime, war victims or more or less voluntary sacrifices of renouncing something or other.3 1

The observations below partly follow those in Herfried Münkler / Karsten Fischer: “Nothing to kill or die for…” - Überlegungen zu einer politischen Theorie des Opfers, in: Leviathan. Zeitschrift für Sozialwissenschaft, Vol. 28 (2000), 343-362. I thank Christina Gingelmaier for valuable comments and suggestions. 2 Herfried Münkler: The New Wars, Cambridge/Malden 2005; Edward N. Luttwak: A Post-Heroic Military Policy, in: Foreign Affairs, Vol. 75, 2004, No. 4, 33-44. 3 Walter Burkert: Opfertypen und antike Gesellschaftsstruktur, in: Gunther Stephenson (ed.): Der Religionswandel unserer Zeit im Spiegel der Religionswissenschaft, Darmstadt 1976, 168-187, 171; Walter Burkert: Anthropologie des religiösen Opfers. Die Sakralisierung der Gewalt. München 1983, 16; HansMartin Gutmann: Die tödlichen Spiele der Erwachsenen. Moderne Opfermythen in Religion, Politik und Kultur, Freiburg 1995, 19; Michael Reiter: Opferphilosophie. Die moderne Verwandlung der Opferfigur am Beispiel von Georg Simmel und Martin Heidegger, in: Gudrun Kohn-Waechter (ed.): Schrift der Flammen. Opfermythen und Weiblichkeitsentwürfe im 20. Jahrhundert, Berlin 1991, 129-147.

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K. Fischer / Between Sacrification and Victimization

These uses of sacrifice and victim correspond quite well with etymology. As already pointed out by Isidor of Seville, sacrificium stems from sacrum factum, that is from the transubstantiation of the bread and wine into the body and blood of Christ,4 which shows the religious element in any act of sacrifice. 3. Moses 1, 1ff. is typical of that, where God’s laws on sacrifice as a condition of the possibility of human communion with God are prescribed – an aspect central to such theories of religion as those of Sigmund Freud and Max Weber.5 In any case, the terms of both sacrifice and victim demote a general renunciation of something or the loss of something. This can be a matter of sacrificial offering to the gods or cosmic powers – material objects, animal or even human sacrifice – which is tied to ritual and a magical conception of the world. The offer is believed to have immediate positive effects through its influence on mysterious forces accessible only to an initiated elite of priests.6 These sacrificial cults are long lasting since the effects attributed to them never fail to materialize, be it natural spectacles as the sun which rises again, the beginning of the rainy season or the continued existence of social order and discipline. In the latter case the sacrificial cult has indeed immediate effects, not in a magical manner but by virtue of psychological processes. A different type of sacrifice is represented by the renunciation of things, values and even one’s own life. In so far as the interpretation of actions (or their omission) takes the place of ritualistic acts in the strict cultic sense, dedication and renunciation do not necessarily need to be ritualised in similar ways to sacrificial cults. For this very reason a commission of sacrifice and the readiness to sacrifice may result, since it is not only cultic actions but also certain situations are interpreted also quasi-ritually as sacrifice-bearing. In this regard, soldierly and military motives of the 20th century wars come to mind.7 A third type is the powerless suffering present in such terms as accident victim, suffering from an illness, etc.8 Different to the first two types which have an active relation to the sacrificial act, the relationship here is passive: it is not a matter of a sacrum factum but of involuntary damage and, therefore, victimization. It is characterized by a fatalistic emphasis since what the term victim refers to here is a deficiency of control as well as unintended byproducts of other people’s actions. This can be clarified best by looking at the term accident victim. What is meant is individual involuntary, but with regard to civilization, apparently inevitable loss of life or at least of the physical integrity of individual men or women. It can be interpreted both as the due price for future progress which will subsequently render such losses unnecessary and, in opposition to it as well as civilization as a whole, as portents of an ultimately uncontrollable technical progress.

4

A. Seigfried/Red.: Opfer [I], in: Joachim Ritter / Karlfried Gründer (eds.): Historisches Wörterbuch der Philosophie, Vol. 6, Basel/Stuttgart 1984, 1223-1230, 1227. 5 Sigmund Freud: Totem und Tabu, in: Gesammelte Werke, 18 Bde., ed. Anna Freud et al., London 1940 ff., Vol. 9, 161 f.; Max Weber: Wirtschaft und Gesellschaft. Grundriss der verstehenden Soziologie, ed. Johannes Winckelmann, Tübingen 51980, 258 f. 6 Marcel Mauss: The gift, London/New York 2002. Friedrich Schlegel: Philosophie der Geschichte, in: Kritische Friedrich-Schlegel-Ausgabe, ed. Ernst Behler unt. Mitw. v. Jean-Jacques Anstett u. Hans Eichner, Vol. I/9, München 1971, 145 ff. assumes that historically human sacrifices preceded animal sacrifices and that they were gradually replaced by the latter. René Girard: La violence et le sacré, Paris 1972 negates the existence of a fundamental difference between human- and animal sacrifices. 7 George L. Mosse: Fallen soldiers. Reshaping the memory of the world wars, New York 1990; Kathrin Hoffmann-Curtius: Opfermodelle am Altar des Vaterlandes seit der Französischen Revolution, in: KohnWaechter (ed.), Schrift der Flammen, op.cit., 57- 92; Reinhart Koselleck / Michael Jeismann (eds.): Der politische Totenkult. Kriegerdenkmäler in der Moderne, München 1994; Sabine Behrenbeck: Der Kult um die toten Helden. Nationalsozialistische Mythen, Riten und Symbole 1923 bis 1945, Vierow bei Greifswald 1996. 8 Josef Drexler: Die Illusion des Opfers. Ein wissenschaftlicher Überblick über die wichtigsten Opfertheorien ausgehend vom deleuzianischen Polyperspektivismusmodell, München 1993, 9 f.

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The above differentiation between these three typological meanings can be schematized as follows: Semantics Logic active: sacrifice cultic-ritual offering; renunciation; devotion

passive: victim

loss; disadvantage

Object Self-description material-, readiness for action animal-, humansacrifice; ultimately: selfsacrifice poverty-, epi- despair; apathy demic-, accident-, crimevictim

Outside perception fanaticism => withdrawal of sympathy

need => support

A further distinction between self-description and outside perception will now lead to an analysis of meaning shifts among sacrification and victimization. II. Shifts in meaning in the semantic settlement of political conflicts With the passive turn from sacrifice to victim as current predominant semantics in the postheroic, western societies, the ultimate self-sacrifice - the sacrifice of one’s life for supposedly higher purposes (God, freedom, fatherland) - is by and large discredited. Instead of active dedication and renunciation the term now denotes loss or disadvantage. Instead of legitimizing one’s actions, it serves to legitimize claims against others, to take the pole position in the race for welfare state redistribution so to speak. “Victims may serve to bolster state legitimacy, to gain political mileage, and to enhance social control” and may therefore “help perform an ideological and political function”.9 Today sacrifice has been replaced by donations. The sacrificial act is no longer determined by the identification of the individual making a sacrifice by the superior addressee of the offering but by the discovery of an investment opportunity. Donations are simply expenditures that can be made for tax relief purposes or publicity. In the same way as the traditional meaning of sacrifice marked the recognition of a higher power by which the individual eased the feeling of the contingency of his existence, at least for some time, so does donating involve elements of strategic action. Whereas the cultic-ritual sacrifice secured one’s own existence by offering something of value or importance,10 donations follow the exchange-logic of investing. Some value devoid of any existential relevance for one’s identification is utilized in anticipation of potential financial or other gain. And yet the semantics of sacrifice are not entirely obsolete: in order to appropriately substitute sacrifice, certain sacrifice-businesses are needed which, of course, operate today within a totally different line of business. What was once the job of money changers, the conversion of coinage and currency, has nowadays been taken on by the banks. Whereas the money changer served those sacrificing, the banks collect donations for the victims’ sake. Hardly has a catastrophe occurred when donations accounts are opened. Chief editors, TV entertainers, politicians, and whoever else feels called upon appeal to the then publicly quantified and evaluated willingness to donate. In the same way as the Gods of archaic societies took pleasure in burnt offerings, modern society celebrates its willingness to sacrifice snatches of its carefully accumulated prosperity for a good cause. Donations, organised and administered by sacrifice-businesses, thereby execute a key function in turning the public from passive observers of victimization into active, intervening participants. It is no 9

Robert Elias: The Politics of Victimization. Victims, Victimology, and Human Rights, New York/Oxford 1986, 231, 233. 10 Mauss, The gift, op.cit.; Maurice Godelier: L’énigme du don, Paris 2002.

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longer acceptable to fall victim to poverty, epidemics, crime, and traffic. Giving donations constitutes the active taking of counter-measures. This finds expression in ambiguous semantics: victims of catastrophes are countered by sacrifices in the form of donations – victims are helped with sacrifices. By responding to losses which are no fault of one’s own by voluntary relinquishment, some of the old, active understanding of sacrifice is preserved. The media is one of the most important players in the sacrifice-line of business. Since sacrifice is no longer a rite but understood as a fateful loss, it is the media’s responsibility to present sacrification and victimization. Whereas in archaic societies the appropriate sacrifice would have been chosen and prepared by priests, in modern societies victims are described as such only in hindsight. This characterization is made by journalists and intellectuals in their role as mediators of social meaning. And whereas the priests actually offered sacrifices by spilling blood, the media performs semantic operations: they do not kill but talk about victims, through the function of generator of meaning they lift the burden of contingency and Vergemeinschaftung (communal socialization) remains largely the same. Above all it pays to be perceived as victim. Since the sacrifice is no longer about killing and has lost its existential quality – that is since it is merely a question of interpretation and therefore virtual – to be able to claim the victim status has come to be of considerable advantage in terms of welfare state redistribution and compensation. Socio-politically it constitutes a strategic privilege.11 For example, those who fell victim to floods can regard state aid and private donations as a matter of course and those who know to present themselves as victims of an apparent wrong social - or labour-market policy or a rigid bureaucracy may reach the public through talk shows, a public which is receptive to any rhetoric of justice whatsoever, and a public feared by those supposedly in power at election time. This change in semantics from sacrifice to victim correlates in Western welfare states with varying descriptions of the self and external situations. A sacrificial act in its selfdescription is understood as virtuous readiness for the good of one’s own group, one’s fatherland or the Almighty, whereas from an external point of view the very same sacrificial act is met with a complete lack of understanding and appears as fanaticism which is subsequently sanctioned by the withdrawal of sympathy. The post-heroic hedonism of sated and self-satisfied members of the affluent society lacks any appreciation for such sacrificial pathos which they encounter “within the subculture, sects, terrorist suicide squads, or within the foreign culture of the militant Islam”.12 The very reverse is true of victims in whom self-described despair and apathy are dominant, and this is precisely why they are perceived as needy and can count on the sympathy and support of the beneficiaries of well-established welfare states. The political implications of these differences will be considered in a concluding section.

III. The political implications of sacrification and victimization A critical attitude towards sacrificial pathos characteristic of Western welfare states is by no means to be expected when seen from the point of view of the history of ideas.13 Even Ludwig Feuerbach made a distinction between religious and moral sacrifices, the latter being voluntary “self-sacrifices for the best of others, the state, fatherland.”14 In agreement, Hegel defined political virtue as “deliberate work” “with reference to the substantial objec11 Richard Schenk: Einleitung in die Thematik “Zur Theorie des Opfers”, in: Richard Schenk (ed.): Zur Theorie des Opfers. Ein interdisziplinäres Gespräch, Stuttgart/Bad Cannstatt 1995, 1-7, 3. 12 Burkert, Anthropologie des religiösen Opfers, op.cit., 16. 13 Burkhardt Wolf: Die Sorge des Souveräns. Eine Diskursgeschichte des Opfers, Zürich 2004. 14 Ludwig Feuerbach: Vorlesungen über das Wesen der Religion. Nebst Zusätzen und Anmerkungen, in: Gesammelte Werke, ed. Werner Schuffenhauer, Vol. 6, Berlin 1967, 89.


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tivity, the whole of moral reality” “and the ability to devote oneself sacrificingly to it.”15 Jean-Jacques Rousseau in the first version of his Contrat social had already coined a formula accordingly: “Dans tout État qui peut exiger des ses membres le sacrifice des leur vie, celui qui ne croit point des vie à venir est nécessairement un lâche, ou un fou”.16 Although these thoughts might be just as distant from fascistic sacrifice-ideology as they are from welfare state post-heroism, they were nevertheless a ferment for the body of doctrine and myth of such thinkers as Ernst Jünger and Carl Schmitt. The former, for example, said that “the deepest delight of man” is that “he is sacrificed”, and the greatest art of command is “to show goals worthy of making sacrifices”.17 And Carl Schmitt made Rousseau’s reflection radical in an anti-liberal way: “If necessary political unity must demand the sacrifice of life. For the individualism of liberal thought this demand is in no way to be achieved or legitimized. [...] All liberal pathos is directed against violence and a life without freedom.”18 Feuerbach’s distinction taken into account, the 20th century moral sacrifice, which was stripped of its religious motivation, seems to have been fundamentally politicized through totalitarianism, especially National Socialism, and again exhibits religious traits. The conclusion is that sacrifice is being deprived of its pacifying effect, emphasised by René Girard, as soon as it is secularized and politicized. It is remarkable that this 20th century ideology is aimed at a certain target group from which sacrifices are to be drawn, that is men between the age of 16 and 40. This does correspond to the archaic practice of sacrifice drawing on virgins, first-born sons, exceptional young men, and even kings. How deeply ingrained in the public perception this idea of the particular aptitude of this group really is becomes clear when the dead resulting from war or violence do not belong to this group and are hence perceived as victims. This difference in how sacrifices and victims are perceived is of central political importance, as is plainly recognizable when looking at the most recent armed conflicts of the end of the 20th century and the beginning of the 21st. Both the civil wars in Bosnia and Kosovo and the various wars and genocides on the African continent seem to be perceived as especially cruel when women, children and old people are killed, whereas tolerance or indifference are comparatively greater when members of the male juvenile sacrifice group meet the same fate. Here, unconscious collective ideas of legitimate sacrifices seem to be passed on and perpetuated. Those ideas are at the root of Carl Schmitt’s notion of the Hegung (enclosure) of war by international law. According to this notion, war is gehegt (enclosed) when the dead are members of the accepted sacrifice group, it is enthegt (dis-enclosed) when war breaks through to the rest of the population. The consequence is a stark difference in the level of willingness and in the reasoning for so-called humanitarian military intervention: if women, children and old people are affected by human rights violations the willingness to intervene is not only greater, but there is also a certain public pressure placed on those in power. Cum grano salis one could say that the fascination with sacrifices predominant in the first half of the 20th century has given way to an equal fascination with victims. Subsequently, the global communication in the case of the Balkan conflicts centred around semantic dominance over the victimization discourse: both the Bosnian Muslims and Kosovars, and on the other hand the Serbs, presented themselves as victims of Serbian aggression or traditional anti-Serbian resentment respectively. 15 Georg Wilhelm Friedrich Hegel: Enzyklopädie der philosophischen Wissenschaften III, § 516, in: Werke, ed Eva Moldenhauer / Karl Markus Michel, Frankfurt/M. 1970 ff., Vol. 10, 319. 16 Jean-Jacques Rousseau: The Political Writings of Jean Jacques Rousseau, ed. C. E. Vaughan, Vol. 1, Oxford 1962, 500. “In every State that can require its members to sacrifice their lives, anyone who does not believe in the afterlife is necessarily a coward or a madman.” 17 Ernst Jünger: Der Arbeiter. Herrschaft und Gestalt, Hamburg 1923, 71. 18 Carl Schmitt: Der Begriff des Politischen, Berlin 31963, 68, 70.

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In comparison, from the Western external point of view Bosnian Muslims and Kosovars appear as victims and the Serbs, who committed regular archaic sacrificial acts from which NATO derived its obligation to intervene, appear as aggressors. The importance of such public victimization, decisive for political action, corresponds to an especially typical and lasting moralization of the political decisions made at the time. As post-heroic societies, the Western powers have a hard time admitting to themselves that in times of war soldiers put their lives at risk and that they will only be willing to do so if this potential self-sacrifice is meaningful to them. Moralizing military intervention is a prominent way of achieving just this.19 Both aspects – the perceiving of victimization and Western post-heroism – are mirrored by the US American military strategy to bring peace to Kosovo. The precision bombardment of Belgrade from a distance of fifteen miles served the purpose of minimizing both the Serb self-victimization discourse and the number of American war victims, which, under post-heroic conditions, are no longer justifiable as sacrifices. The obvious conclusion from those experiences, that the extent and course of victimization discourses determine with certainty the freedom of decision regarding political action, can only be considered when dealing with those terms and the moralization inevitably attached to them. Only then will it be possible to remain the master of one’s own political decisions for action and to successfully control as well as prevail in the politically crucial battle for semantic dominance.

19

Paul W. Kahn: War and Sacrifice in Kosovo, in: Philosophy and Public Policy, Vol. 19, 1999, 1-6. Herfried Münkler: Den Krieg wieder denken. Clausewitz, Kosovo und die Kriege des 21. Jahrhunderts, in: Blätter für deutsche und internationale Politik, H. 6/1999, 678-688.


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Victimization in Wars A Framework for Further Inquiry Ernesto KIZA* Abstract: War is a ubiquitous phenomenon. The magnitude of war-faring has grown significantly since the end of World War II and so has the number of people killed and atrocities committed. Consequently more and more people are victimized due to the incidence of war and the high amount of violence connected to war-faring. Although war victims are the primary source of answers to open questions related to war, science has not taken very much notice of them. This article refers to some preconditions that have to be met in order to start an inquiry into war victimization and therefore in order to understand the structures of war. Possible fields of application are discussed and related problems are brought to attention.

Introduction On the eve of the 21st century the world has faced a magnitude of wars accompanied by a seemingly new quality of violence and anomie. [1] A significant raise in the total number of violent conflicts can be observed since 1945 with a peak in 1992 when 55 wars were being waged at the one time. In a parallel development more and more civilians are being directly affected by the violence, magnifying vulnerability and hence suffering. Obviously a large proportion of the world’s population is subjected to the most threatening and lifedisregarding structures known to humanity, although the corpus of international universal norms has been further refined, clearly defining goods that are protected. For this reason William Ayres rightfully posed the question of whether the world is flying apart. [2] This article refers to the idea of analyzing war by means of a victim-centred approach. It appears that a bottom up approach is most productive when it comes to the analysis of structures and patterns in today’s wars. Since approximately 80% of today’s war victims are civilians – especially children, women and the elderly – it is these people who can provide the best information on events that have taken place during war-time, on the structure of victimization, on the question of involvement, and the patterns of combatants’ behaviour as well as their organizational structure. Finally, since the ultimate goal of peace and conflict research is to provide ideas and suggestions to prevent war or re-establish peace, it is the victims of armed violence that are shouldering the task of reconstructing destroyed societies, so it is these people who have to decide about the future of their countries. In order to realize a bottom-up research approach, certain preconditions have to be met. As the research topic is war victimization, it is obviously necessary to define the framework in which the research shall take place. In this case the research will concentrate on regions where wars were or are being fought. As the term war represents the highest and most violent form of organized armed conflict, it has to be defined before the selection of appropriate research objects can take place. This includes the extrapolation of an operable definition

*

The author is a Researcher at the Max Planck Institute for Foreign and International Criminal Law, Freiburg, Germany

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E. Kiza / Victimization in Wars – A Framework for Further Inquiry

from the ongoing scientific debate as well as an identification of the magnitude of the phenomenon. In paragraph one this task is discussed. A necessary second step is to identify what is meant by victimization and who can be classified as a victim of war. Criminal victimology, in particular, provides some good starting points, as an impressive body of knowledge has been accumulated over the last 50 years. Although confined to the victims of ordinary crime, important ideas can be utilized in order to develop an understanding of war victimization. In addition, it is also of great importance to identify the magnitude as well as the major regions of occurrence of the phenomenon. After addressing these set points, a short discussion of major questions arising from research in the sectors of conflict prevention, resolution and management as well as peace building is provided, along with a suggestion of the course meaningful research has to take in order to add effectively to the body of knowledge in these fields. Finally some problems in the context of international criminal law are described which could be addressed by victimological research. 1. How should the term war be defined? Unlike earthquakes, floods or whirlwinds, war is, in principle, an avoidable man-made catastrophe. [3] So much is clear. It is also clear that, within the common understanding, war includes massive suffering caused by the excessive use of violence. [4] But what exactly is meant by the term war? The term war is highly contested and discussed in the scientific branches of peace and conflict research as well as within the realm of international politics. Confusion is added by the public rhetoric referring to the deployment of organized armed force against various national or international bodies regarded as a threat to the prevailing idea of societies – for example against mafia, drug cartels, etc. In a survey of approximately 90 studies on war, Milton Leitenberg demonstrated the problems faced in attempting to draw conclusions from much of the research and data on wars since World War II (WWII): “Hardly any two authors used the same definitions, criteria, or database. Categories and descriptive phrases were used in a haphazard fashion. The word conflicts was used in the title of this survey since very few “wars” since WWII have been declared wars by the countries or parties involved, and different authors often used different terms for the same event.” [5] So although it is a de facto phenomenon there is no common definition for it. Still it is necessary to identify the objects of research for a war victim centred research approach and to find an operable definition. Secondly, war provides a certain structure, which gives rise to insecurity and raises the question of vulnerability and victimization on a large scale. Finally, different types of war have to be identified, since the quality of war is seemingly changing in the globalized world, obviously affecting civilian life and subjecting populations protected by international norms derived from common value systems to high amounts of violence, even making them targets of the conflicts that are fought. [6] 1.1 Finding an operable definition Starting from the point of operability and description, different approaches towards defining war can be found. While in international law the term war is most often avoided in order to prevent loopholes, scientific research is in need of clear concepts. This is especially true in the field of quantitative peace and conflict research. For this reason different concepts have been developed and applied. Two of the most popular are represented by (a) the COW-project (Correlates of War) [7] and (b) the AKUF (Arbeitsgemeinschaft Kriegsursachenforschung) [8].


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(a) Basically the COW definition refers to international war and applies a quantitative description that incorporates one qualitative factor: At least 1000 battle-connected deaths (of soldiers) need to occur within one year for an armed conflict to be recognized as a war – this is the battle threshold – and at least one member that qualifies as a member of the interstate community must be involved. (b) The AKUF definition is based on the ideas of István Kende [9] and embraces all types of wars, be they international or intra-national. Accordingly, a war is a violent mass conflict that includes all of the following attributes: • in the fighting at least two – or more – armed parties are involved, with at least one side being represented by regular armed forces of the official government (military, police or paramilitary formations); • on both sides a minimum of central organization of the combatants and fighting must be provided, even if this is limited to organized defence or raids (guerrilla operations, partisan warfare, etc.) • the armed operations are taking place with a certain regularity and not as occasional, spontaneous encounters; this means that both sides are operating according to a planned strategy, regardless of the fighting taking place within the territory of one or more societies or the duration. Other forms of violent conflict, lacking one or more of the above-mentioned factors, are treated as armed conflicts in a wider sense. Both definitions provide a good starting point in recognizing states suffering from war. Still both are problematic. Whereas the COW definition is too narrow to embrace the different types of wars, the AKUF definition is not precise enough, since it is qualitative and therefore not easy to reproduce inter-subjectively. The selection of countries as a research object becomes arbitrary. An operable but more precise definition needs to take into account both qualitative and quantitative elements. A suitable approach towards an operable definition could be the inclusion of a quantitative element with the AKUF definition. While the count of 1000 war-related casualties is somewhat arbitrary, it is widely recognized by scholars and represents a standardized measure for the threshold of violence. By shifting the perspective from combatants to civilians and including whole episodes of ongoing armed conflict, the threshold is better suited to include today’s prevalent armed conflicts. Therefore the definition given by AKUF should include this particular point in order to provide for a better understanding of the term. 1.2 The incidence of war Even with the obvious deficiencies, the research done by AKUF provides one of the best contemporary overviews on armed conflict and war. In order to depict the incidence of war over a period of 56 years [10] the data provided by AKUF is of great help (Map 1). According to this data it is easily understood that, after the end of WWII, approximately half of the states in the international system were subjected to warfare of one kind or another, experiencing severe humanitarian, economic, political or security problems. Another striking fact is that more than two thirds of these wars took place in the southern hemisphere of the world, encompassing most often those states identified as the “less or least developed”. [11] So generally the populations affected are those already subjected to much lower standards of living, economically as well as politically, than people living in the more developed countries. [12]

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E. Kiza / Victimization in Wars – A Framework for Further Inquiry Map 1: Countries Experiencing War (1945-2002)

Source: Own depiction; data by AKUF 2004. Note: This illustration refers to countries’ international borders . Even if the war was taking place in a small part of the country, the whole territory is marked (e.g. Russia). The illustration does not distinguish between international and intra-national wars.

Taking a look at the incidence of war on a year by year basis, the highest occurrence can be identified in 1991 when 43 countries experienced war at the same time. Since then, the number has been oscillating somewhere between 20 and 30 countries per year. Figure 1: Number of Countries Experiencing War (1945-2002) on a Year by Year Basis

50 45 40 35 30 25 20 15 10 5 0 2002

1999

1996

1993

1990

1987

1984

1981

1978

1975

1972

1969

1966

1963

1960

1957

1954

1951

1948

Wars per Year

1945

Number

Countries at w ar per year

Year

Source: Own figure; Data by AKUF 2004.

Note: This illustration refers to countries’ international borders. Even if war was taking place in a small part of the country, the whole territory is marked (e.g. Russia). The illustration does not distinguish between international and intra-national wars.


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1.3 Paradigms of today’s wars – The structural backlight In addition to the incidence of war, the structural aspect of warfare is of special importance when talking about war victimization. Starting with a functional definition, it becomes clear that waging war includes by its nature a high degree of suffering, insecurity, and injustice due to the specific fact that the use of violence is central to the idea of war-faring. Also the high level of organisation of applied violence over a period of time guarantees in itself drastic effects. This is especially true for the majority of wars fought after 1990. Most of these were intra-state wars, incorporating certain attributes that significantly boosted the cruel effects of warfare and hindered the application of methods of conflict resolution. [13] A significant number of states subjected to recent intra-state wars can be treated as weak, failed or collapsed. [14] This encompasses a whole range of attributes that can be identified as follows:

“In collapsed states there is a partial or total destruction of the institutional system. There is no rule of law and no democratic system of checks and balances. Corrupted elites model the state according to their private group interests. With no monopoly of violence, armed actors are fragmented, dispersed and privatised. Warlords, paramilitary groups, guerrillas, mercenaries and foreign military advisors may (in part) substitute a state’s armed forces. Violence is, consequently, privatised, becoming the main source of living for tens of thousands of people. Since the political pact between citizen and state is severed, with people distrusting the state, a crucial response of social groups is to identify behind a national, linguistic, ethnic, or religious label as a way to consolidate and organize against social and political injustices.“ [15]

Such conditions provide for a fertile breeding ground for the reproduction of conflicts, serious breaches of humanitarian norms and the protraction of conflict. [16] The mere existence of every human under these conditions is seriously threatened in a Hobbesian way [17]. Put in simple terms, these conditions account for a massive vulnerability of civilians. It is obvious that more and more civilians are killed in the course of warfare. Whereas in World War I the ratio of soldiers killed and civilians killed was 9 to 1, at the end of the 20th century the relationship was reversed: for every combatant killed nine civilians lost their lives. [18] Within this context, the ICRC even talks about a war against the civilian population [19], urging the rethinking of a means by which to provide at least a basic level of safety according to the Geneva Conventions. Concerning the most vulnerable groups, today’s research results indicate that women and children account for about 80% (sic!) of the victims of war and armed conflict. [20] Finally, these wars are characterized by ubiquity. Today’s wars are taking place virtually everywhere in the country. Safe havens are rare and nobody knows whether combat activities are going to spread to regions that are as yet untouched by war. This statement is supported empirically by findings from the ICRC. In twelve different countries people were asked about their experience of war, with the result that about 50% of the people from the sample had lived in a war zone, 42% had been forced to leave home, 33% had experienced serious damage to their property, 31% had lost a family member and 26% had experienced the looting of their houses. [21]

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2. Aspects of war victimization 2.1 Incidence of war victimization – a basic quantitative framework The severity and urgency of the problem of war victimization is further enhanced by the magnitude of war victimization. While in the above section reference was made only to the incidence of wars, in this part the focus is on the actual available quantitative information on victims of war in a narrow sense. The most evident figures come from the numbers of people killed and displaced in wars. Although many attempts have been made to gather reliable information on the topic of people killed in wars, one of the most accurate was done by Milton Leitenberg. Leitenberg provides a count of approximately 35,681,500 civilians killed in wars between 1945 and 2000. [22] The massive impact of war on civilian populations worldwide is estimated by region in Table 1, based on Leitenberg´s ideas and other sources. Table 1: Estimate of Civilian Deaths due to Wars Worldwide (1945-2001)

Region Latin-America Africa Europe Middle-East Asia Total

Civilian Deaths 471,000 9,514,000 262,500 1,358,000 24,076,000 35,681,500

Sources: Leitenberg; Melcic/ Vetter [23]

As only deaths of civilians are represented, only a fraction of the mass victimization taking place worldwide through warfare is shown. Additionally, one has to be reminded that every war-related death involves suffering by those who have lost their loved ones, which greatly increases the number of victimized persons. Additionally, those who have disappeared or were wounded increase these numbers. The number of combatants also needs to be added to this figure if victimization is to be understood in a broader, more universal way. Another group of people that can be considered victims of war is represented by statistics on refugees and internally displaced persons. The best source for statistics on refugees is the UNHCR. Table 2 shows the magnitude of flight and displacement for a period of six years. Table 2: Number of Refugees (1998-2003)

End of Year 1998 1999 2000 2001 2002 2003

Number of Refugees 11,429,700 11,625,700 12,062,100 12,029,900 10,594,000 9,671,800

Source: UNHCR [24]

While the mandate of this UN organisation covers only refugees in the sense of the Geneva Conventions, large parts of forced migration are not included. Internally displaced


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people (IDP), in particular, pose a problem of great magnitude (Table 3) as migration research indicates that the greater part of forcibly displaced persons remain within the borders of their state. Accordingly they do not fall under international refugee protection and, as such, are even more vulnerable to victimization – especially bearing in mind that this particular group is widely ignored by the public and the international community. In addition to their complete loss of common social structures, these people are directly subjected to the arbitrariness of the local warring parties. Often this results in catastrophic conditions like those the world is facing today, for example in Darfur, Sudan. Bringing together the estimates on refugees and IDPs, approximately 35,000,000 people worldwide were affected by displacement in 2003 and can therefore be considered to have been victimized due to man-made disasters – mostly armed conflicts followed by human rights violations. [26]

Table 3: Number of IDPs (estimates; as of end 2003)

Region Africa Asia-Pacific Americas Europe Middle East Global

IDPs 12,700,000 3,600,000 3,300,000 3,000,000 2,000,000 24,600,000

Source: Global IDP Project [25]

While the figures cited above are only rough estimates of the total magnitude of these two types of mass victimization, in the succeeding paragraphs more sophisticated concepts of victimization and types of victims in the context of war are discussed. The numbers provided here are the smaller part of war victimization that is most obvious to the outside observer. The figures are but a small fragment of the overall victimization of humans during warfare. Only dead and displaced persons are measured quantitatively. In order to actually measure war victimization, all those people being tortured, imprisoned, loosing their relatives, witnessing killings, torture and so forth have to be kept in mind.

3.Victimology and war Although research on issues of victimization is still a young discipline, it has produced quite impressive results. A vast quantity of contributions has emerged, especially in the major field of criminal victimology, following the coining of the term “victimology” by Hans von Hentig in 1948. [27] Approximately 50 years of research on victims of crimes has provided not only knowledge about structure, typology, offender-victim relations, fear of crime, precipitation et cetera in the scientific field, but has also fostered the implementation of basic victims’ rights within the legal framework of national and international law. Victimological research has also paved the way for the acceptance of victims within societies, and has provided a basis for victim assistance programs. [28] One of the major achievements within this context is most certainly the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, adopted by General Assembly resolution 40/34 on 29 November 1985.

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In the field of criminal victimology major advancements have been made, although it is a striking fact that in the field of war victimization or collective victimization this has not been the case. [29] Only a few achievements have been made in the field, even though massive victimization due to armed conflict or warfare has occurred throughout history and is occurring still. 3.1 Premises for understanding and exploring war victimization In order to understand war victimization and to develop an adequate research program, some premises have to be taken into account. As shown above, in a state of war the formal systems of social control do not function any more, nor do the states’ institutions. They are undermined by mechanisms of control of the opposing parties, depending on who is in charge in what place and at what time. The monopoly of state authority, in particular, which in times of relative peace ensures a certain degree of security, is largely destroyed, as is security for the individual and the collective even related to the international system. [30] Structural conditions to stop threats and injuries as well as mechanisms for coping with victimization are giving way to a “sense of insecurity and powerlessness”. [31] In this context the traditional understanding of victimization as “[…] an imbalance of strength and a disequilibrium in the positions of power: the strong, powerful victimizer and the weak, helpless victim” [32] is further enhanced through a structurally induced vulnerability of the whole population. While in times of relative peace victimizations like assault, theft or rape occur, during warfare these are supplemented by more serious victimizations, such as expulsion and loss of property, family members, life or body parts. Combined with a total loss of security and a persistent lack of support from the community, war victimization reaches an incomparably high degree which often has the effect of massive traumatization, fear and concern over an extended period of time. [33] This is because the affects of war often last a long, incalculable time and the connected traumatization even longer. Because of the ubiquitous nature of war victimization, and thus its massive scale, during and after the war the majority of the population is traumatized and victimized in a collective manner. In the wake of this experience, the sense of increased vulnerability, loss of selfesteem, helplessness and the sense of not being able to change one’s situation creates a sphere of permanent insecurity, fear as well as hatred and xeno- and heterophobia. [34] Hence war victimization must be understood in a structural manner: ”Structural victimization is victimization related to the social and power structures in a given society. […] Structural victimization has no boundaries. In one way or another, we are all victims, to some extent, of one form or another of structural victimization. […] Structural Victimization takes many forms, some visible, some hidden, some subtle, and others not so subtle. One of the most common forms of structural victimization is abuse of power, in particular, the violations of human rights. What sets structural victimization apart from other kinds of victimization is its magnitude and the ubiquitous character of many of its forms, such as war, genocide, tyranny, dictatorship, oppression, repression, persecution, torture, censorship, exploitation, discrimination, racism, sexism, ageism, and classism.” [35]

Picking up Johan Galtung’s concept of structural violence [36] and transforming it into an understanding of victimization through structures, as provided above, the whole setting of today’s wars provides for structural victimization. [37] In Figure 2 this understanding is taken as a precondition for understanding the different sources of victimization during wartime. Under conditions of war the represented sources of victimization exist within the sphere of structural victimization. As war sets the special conditions, in this wide understanding any type of victimization source is either magnified or newly created. The distinction be-

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tween indirect and direct is of particular importance and provides for an initial starting point. The category “direct” includes all concrete human action and covers the whole spectrum of victimization sources directly executed by humans against humans during wartime in face-to-face situations. For instance, victimization by infliction of bodily harm may include wounding due to regular combat activity, but also wounding or killing due to intent to commit genocide or simply as a result of robbery. Accordingly even ordinary crime during wartime accounts for a large portion of war victimization, as ordinary crimes are more likely to occur during war than under “civilised” circumstances. The category “indirect” refers to all types of victimizations that do not directly impact on the particular victim but rather cause victimization through the structure. This category is more abstract and complex as it accounts for victimization such as mass flight because of the mere possibility of being shelled, subjected to torture, killed or wounded. But also suicide, drug abuse or even the negative development of the demographic structure due to the structural background of war is included in this category, as well as the exposure of displaced persons to inhumane living conditions, for example in refugee camps. Especially in this situation nature plays an important role as a source of victimization. For instance a strong winter period (like in 1999 in Kosovo) induces a higher level suffering. Figure 2: Sources of War Victimization

Structural Victimization

War victimization

Direct

Indirect

By concrete human actions

By human action

By nature

Direct By others

By ordinary crime/ core crime

By torts and other noncriminal actions

By combat activity

By oneself

By concrete human actions

By ordinary crime/ core crime

By torts and other noncriminal actions

By combat activity

Source: Own illustration; Note: the term “core crime” refers to crimes under international jurisdiction, especially crimes against humanity, genocide and war crimes.

3.2 The problem of identifying war victims While a structural model of war victimization helps in understanding the basic principles of the phenomenon, at the same time it poses a major problem for the operability of the concept of war victimization. This is the very practical question of identifying who is a war victim. Since victimization is a highly complex process it is not sufficient to identify the causes of victimization, although it is a mere pre-condition of further developments. Research as well as direct action by institutions or NGOs is always confronted by the proper selection of victims. Who is eligible for this label?

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Understandably it is a very difficult decision to make, as the self-perception of people who have suffered harm is not necessarily that of being a victim and those who lay claim to victimhood are not necessarily perceived as such. Factors such as personal vulnerability or resilience as well as cultural and political factors impact on this decision. Finally a recognition of victimhood has certain benefits, awarded to the victim through official support policies or court decisions, as well as basic coping mechanisms in the sense of recognition of victim status. The latter is a well-founded conclusion of victimological research. [38] The need arises thus to find a definition that is operable in terms of applied science as well as applied mechanisms of conflict resolution. Some initial distinctions can help to form this understanding, for example the previously mentioned UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, the Statute of the International Criminal Court (ICC) [39] and literature on restorative justice. [40] Basically victims can be classified according to three different distinctions: • • •

direct or indirect victims; individual or collective victims; first-generation or second-generation victims.

Direct or indirect victims can be identified by the above-mentioned description of sources of war victimization. The distinction between individual or collective victims raises particular problems for research and practicability. While the individual victim can be described as a single person who has experienced a victimizing event and suffered all consequences of victimization, collective victims are hard to describe. Basically this term refers to certain groups that can be identified by their group affiliation (religious, ethnic, etc.) and because of this affiliation have become targets of victimization [41] – this is especially true in the case of genocide. But the sum of individual victimization is far from being identical to collective victimization, since certain social aspects play an important role in the perception of collectives. [42] Finally the distinction between first- and second-generation victims is of high importance. Actually, second-generation victims could be described as those who suffer from the victimization of their parents or even grandparents. Identification with victim-hood is deeply rooted, and pain and grief are absorbed and carried into adulthood, resulting in a serious threat to the stability of societies. [43] While the first two distinctions are helpful for identifying different abstractions of victimization, the third introduces the momentum of time. Not only the transfer of victimization experience from generation to generation needs to be considered in this context, but the impact of time on the victimization experience of first-generation victims also needs to be considered. It is to be assumed that at different points in time victims have a different perception of their victimization, including self-identification with the label of victim as well as the extent of perceived suffering. [44] Three different phases have to be distinguished: 1. Pre-war victimization goes hand in hand with the spread of fear and uncertainty, threats, harassment of people in their living and working environment; 2. War victimization: all the factors of pre-war victimization occur under the special structural conditions created by war itself and are supplemented by the open use of armed and organized violence; 3. Post-war victimization: all the aforementioned factors are impacting on the self-esteem of the victimized populations and, in most cases of today’s wars, the losing parties are subjected to threats, harassment or unjust conditions. The threshold between victim and perpetrator is another serious problem in distinguishing those who are victims from those who are not. This is particularly the case with combatants. Are they eligible for victim status if they have committed atrocities but were after-


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wards captured and tortured while in detention? Many of those who committed crimes during war will claim victim status, since they suffered physical or psychological injury. But it is not quite clear – even under the narrow judicial definition of a victim, e.g. that of the ICC – whether these claims can be accepted when it comes to issues of reparation or restitution. It could be argued that combatants are “deserving victims” and should be excluded from any claims. But this will most certainly produce new problems on a large scale, especially keeping in mind the problems these people suffer after the war. To politicise the term victim is also a significant obstacle in determining who is eligible for the label of victim. Often opposing sides claim victimhood for their group, while the other group is identified as “the perpetrators”. [45] This is especially true in the case of long-term large-scale victimization, like in the case of the Israel-Palestine conflict. Therefore the term victim should not be moralized or politicised but rather used as a “terminus technicus” in order to avoid unwanted connotations and to provide a common understanding of what victimization is. Hence it is of highly practical value to develop this common understanding by a strictly logical application of the term. This is especially true and necessary from the perspective of universal jurisdiction governing the most serious crimes known to mankind. Accordingly, the universalization of international norms on criminal acts has to be accompanied by the universalization of the key terms. 4. What research to conduct and to what end? First of all a research agenda has to decide on which level to conduct its investigations. Usually there are at least three different levels: the micro-, meso- and macro- level. Depending on the research question the level of inquiry needs to be set out. Research on the psychological impacts of war victimization needs to be done on the micro-level Questions of traumatization, coping and resilience, in particular, can be addressed by this type of research. On the meso-level the impacts of war victimization can by analyzed through sociological inquiry into collective phenomena. For instance, the analysis of correlation between collective violence, collective victimization and the reproduction of violence are of paramount importance in this field. Finally on the macro-level questions about the impact of war victimization on international structures need to be addressed. A good example is the development of universal jurisdiction on large parts of war victimization. Questions arising from the meso-complex can also be addressed at this level. For instance how the duration of wars affects global security. Issues such as migration, international terrorism or international organized crime are but a few possibilities for fields of inquiry. A second necessary step is to distinguish between the areas of interest. To what end do we want to research war victimization? The basic answer could be the ultimate goal of achieving peace, [46] since peace is deemed to be a guarantee of security, stability and fair co-existence. From this arises the simple need to inquire into the prevention and cessation of war and the stabilization of post-conflict societies on the aforementioned different levels. Up to this point the agenda is pretty clear. From this point onwards the attempts to achieve the above-mentioned goals become blurry. Still there are some important areas where war victim-centred inquiry may contribute significantly. These areas are: conflict prevention, conflict management, conflict resolution, and peace-building. Basically all four fields wield great importance for humanity as such because of the threat that armed conflicts and wars represent. This is especially true in a globalized world, where wars have an effect on the international system. Therefore it is of utmost importance to use theoretical as well as empirical approaches and research techniques to inquire into these fields. Besides the well-established political and sociological approaches, a new per-

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spective of inquiry needs to be set in place. In order to assess critically the theoretical developments – that actually led to action by policy makers – of these disciplines, a bottomup approach is needed to analyze empirically the consequences. From the point of view of a victim-centred approach, the four aspects can be filled with important research questions, providing answers to still unanswered questions by using a bottom-up approach rather than a top-down approach. In the field of conflict prevention, research on victim issues in war-torn countries can certainly provide basic instruments for analyzing evolving sources of victimization that will ultimately lead to war. This can be achieved only through international comparative inquiry into victimization experiences caused by war. In order to research the causes of warfare it seems a logical hypothesis that serious victimization has contributed to the start of war. Thus, early recognition of such victimization may provide a good starting point for the prevention of war. The same is true for the field of conflict management and conflict resolution. Only by finding out more about the causes and effects of victimization can reasonable strategies for managing and resolving conflicts be shaped and finally applied. The fact that today’s strategies – mainly composed of ideas of military threat and intervention – are deficient becomes evident in most of the world’s regions where the international community has reacted and taken hold of conflict management and resolution in war-torn countries. Bosnia and Herzegovina, Kosovo, Serbia, Sierra Leone, Somalia, Rwanda, the Democratic Republic of the Congo or Afghanistan are but a few examples of strategies that obviously failed to utilize concepts adapted to the needs of the affected populations. Finally the field of peace building is ultimately linked to gaining an understanding of what happened during the war and identifying the needs of those affected. In addition to the rebuilding of civil institutions, the reinstallation of a stable political regime and the rebuilding of an economic basis for sustainable development in the aftermath of war, a basis for peace is needed. All four areas can be researched in the wide or narrow perspective of a victim-centred approach. Depending on how victimology is understood, this may mean focussing on those who were victimized by acts falling under the category of “crime” or “international crimes” or on those who became victims through system-induced deprivations – reflecting Galtung’s approach of structural violence and therefore structural victimization. [47] A good starting point is an inquiry into the needs of war victims who have been victimized by acts criminalized by international norms. It is these people whose needs must be addressed in order to provide stable conditions for the rebuilding of a peaceful society. 4.1 Justice and war – a special field of inquiry Two main competing concepts for providing the preconditions for peace through justice can be identified: retributive justice and restorative justice. While both concepts are designed to fulfil tasks that go far beyond the confinements of national peace-building, both took shape as a direct reaction to problems emerging from warfare. The concepts of both retributive and restorative justice are ultimately linked to the concept of providing justice to populations affected by war atrocities. Both are connected to the identification of crimes committed in the course of warfare and are therefore immediately dependent on the willingness of the victims of those crimes to co-operate and provide support. Whereas both recognize a basic need for reparation – for instance in the field of international criminal justice, the ICC puts emphasis on monetary restitution [48] – the approaches towards providing justice are completely different. Basically the retributive approach, represented by the ICC as well as the International Criminal Tribunal for the former Yugoslavia (ICTY) and for Rwanda (ICTR) in the international sector, aims at punishing the of-


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fenders of crimes committed within the jurisdiction of these courts with the intention of bringing justice to those who have suffered and contributing to the prevention of further atrocities through deterrence. [49] Restorative justice aims at a more complex system of mediation and integration of the offender, the victim, and society. Through the involvement of all stakeholders and by identifying and repairing the harm that has been done, justice is reached as a precondition for peaceful co-existence. Although theoretically well-founded, the empirical impact of such an approach in war-torn societies is mostly under-researched. Therefore the discussion seems too theoretical. Nevertheless the international community obviously dismissed the decision to utilize retributive justice when it established a permanent international criminal court with jurisdiction over “crimes against humanity”, “war crimes” and “genocide” in order to take action in the delivery of universal justice. [50] After the installation of two major criminal tribunals for crimes committed during the war in the former Yugoslavia and the genocide in Rwanda, the ICC was set up by international treaty – the Rome Statute. Based on the idea of the UN Charter system for maintaining peace and security in the international system expectations are high. It is the first time in history that such a system has been installed despite the challenges posed by realpolitik. Now, that such a step has been taken, in-depth inquiry into victimological topics is needed. While the ICTY and the ICTR used victims as witnesses only, the ICC has a wider perspective. It includes the right of victims to file evidence in the pretrial process and to receive compensation after the conviction of a perpetrator. [51] Yet questions like who might be eligible for the label of “victim” have not yet been dealt with. Perhaps even more intriguing is the fact that only little is known about the actual effects of international criminal justice. Does it really provide justice to the victims? Does it impact on the willingness for reconciliation after war? Or is it rather fuelling thoughts of retribution by its own retributive and incomplete approach? Only a systematic appraisal of attitudes of victims combined with precise analysis of material produced by tribunals, mixed tribunals or special courts will provide answers that can guide the further development of universal international criminal justice. Accordingly a critical assessment of this idea is desperately needed. Concluding Remarks While the incidence of wars is well documented by different projects in the field of quantitative war analysis, the quality and structure of today’s wars are not. It is evident that today’s wars are of an ubiquitous nature, affecting wide parts of the civilian population and therefore producing a high magnitude of victims who are not supposed to suffer due to war. It is also clear that this quality reflects the prevalent occurrence of intra-state warfare, shackling the hands of the international community through the primate of state sovereignty. Still, answers are needed in order to react adequately to the challenges posed by the impact of these wars on international security. Under the UN Charter system some answers have already been formulated. The shaping of international criminal law, in particular, is a good opportunity to achieve this goal by criminalizing atrocities that run contrary to universal humanitarian ideas. Nevertheless it is deficient. Basic ideas from the restorative justice system seem to hold good answers to the deficiencies concerning the involvement of whole communities but these answers are also under-researched, particularly in the macro-context. Therefore an inquiry into the structures and phenomena of war is needed in order to take adequate action. The most direct way to generate new knowledge in this field is through the application of a victim-centred approach. Taking steps in the direction of the structural analysis of war victimization definitely includes the incorporation of methods that provide for the possibility of embracing wide parts

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of the affected populations. Therefore a quantitative approach is of high value in order to achieve an overview of the occurrence of forms of victimization as a precondition for all further inquiry into the correlation between this type of victimization and all other aspects of interest. This approach should be underpinned by further qualitative research on specific topics that arise from the analysis of core quantitative data. The Max Planck Institute has initiated research in this area. A first approach was designed in order to find out about the structure of victimization from an international comparative perspective. Besides the inquiry into structures, this project also questions what action should be taken as a reaction to war victimization. It is based entirely on the opinion that war victims hold and will reveal first patterns which may form the basis for further in-depth inquiry into the universe of problems that goes hand in hand with the complex notion of war victimology. Initial findings will be available by February 2005.

References [1] Therefore Mary Kaldor is referring to these conflicts as ‘new wars’ providing for a new type of war in the common war typology: M. Kaldor, Neue und alte Kriege. Organisierte Gewalt im Zeitalter der Globalisierung (Frankfurt a.M. 2000). [2] R.W. Ayres, ‘A World Flying Apart? Violent National Conflict and the End of the Cold War’, 37 Journal of Peace Research (2000) pp. 105-117. [3] W.D. Eberwein, ‘The Quantitative Study of International Conflict: Quantity or Quality? An Assessment of Empirical Research’, 1 Journal of Peace Research (1981) p. 19. [4] Although argued by international law scholars that war is about controlled violence because of the restrictions underlying military action, the use of armed force and hence violence is the major component of warfare and exceeds the use of violence under peaceful circumstances. See e.g. D. Chuter, War Crimes. Confronting Atrocity in the Modern World (Boulder 2003). [5] M. Leitenberg, Deaths in Wars and Conflicts Between 1945 and 2000 (New York 2003) p. 8. [6] ICRC, ed., The People on War Report (Geneva 1999) p. 1. [7] D.J. Singer, ‘The "Correlates of War" Project: Interim Report and Rational’, 24 World Politics (1972), pp. 243-270. [8] W. Schreiber, ed., Das Kriegsgeschehen 2003. Daten und Tendenzen der Kriege und bewaffneten Konflikte (Wiesbaden 2004). [9] I. Kende, ‘Twenty-five Years of Local Wars’, 1 Journal of Peace Research (1971) pp.5-22; I. Kende, ‘Wars of Ten Years (1967-1976)’, 3 Journal of Peace Research (1978) p.227-241. [10] In peace- and conflict studies the year 1945 is treated as a focal starting point for the research of modern warfare. [11] African Studies Centre, ed., Failed and Collapsed States in the International System (2003) Internet (visited 20004), URL: http://www.globalpolicy.org/nations/sovereign/ failed/2003/12failedcollapsedstates.pdf [12] The subject of cause and effect relations will not be discussed at this place, but it is obvious that hypothesis about the correlation between wealth and risk of organized violence are arising. [13] For the prevalence of intrastate wars see e.g.: E. Hobsbawm, Eric: The Future of War and Peace (2002) Internet (visited 2004), URL:http://www.counterpunch.org/ hobsbawm1.html; [14] A critical position towards the phenomenon of state failure or collapsed states puts these terms into question in the way that it doubts that the regions identified by these


[15]

[16] [17]

[18] [19] [20] [21] [22]

[23]

[24]

[25] [26] [27] [28]

[29]

[30]

[31]

[32] [33]

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terms ever succeeded in creating something like a modern state. For a critical discussion see: K.J. Gantzel: Neue Kriege? Neue Kämpfer? (Hamburg 2002). African Studies Centre, loc.cit., p.6; for a detailed discussions of these phenomena see e.g.: K.J. Gantzel, loc.cit ; M. Kaldor, loc.cit.; H. Münkler, ‘Die privatisierten Kriege des 21. Jahrhunderts‘, 3 Merkur (2001) p. 222-234; E.g. C.G. Jacobsen: Poverty and War, in 3.2 Online Journal of Peace and Conflict Resolution (2000). According to Hobbes the natural state of human existence is one of unrestrained fighting for the distribution of goods. This is the pre-social state of existence. Only by the societies´ participants consent to submit to the commands of the sovereign a social contract can be achieved reigning in the unrestrained behaviour. T. Hobbes, Leviathan (Ditzingen 1999). R. Gutmann, D. Rieff, Kriegsverbrechen. Was jeder wissen sollte, (Stuttgart 1999). ICRC, loc.cit., p.1. UNICEF, Children in Situations of armed conflict, (New York 1986). ICRC, loc.cit., p.VIII. M. Leitenberg, Deaths in Wars and Conflicts Between 1945 and 2000 (Maryland 2001) Internet (visited 2004), URL: http://www.pcr.uu.se/conferenses/ Euroconference/Leitenberg_paper.pdf; Note that the here applied definition of war takes into account military conflicts with at least 1000 civilian casualties. M. Leitenberg, loc.cit.; M. Vetter, D. Melcic, ‘Synopse zu Opfern, Schäden und Flüchtlingen’ in D. Melcic, Der Jugoslawien-Krieg - Handbuch zu Vorgeschichte, Verlauf und Konsequenzen (Opladen 1999) p. 524-531. UNHCR, Global Refugee Trends 2003 (Geneva 2004) in: Internet (visited 2004), URL: http://www.unhcr.ch/cgi-bin/texis/vtx/home/opendoc.pdf?tbl=STATISTICS& id=40d015fb4. Global IDP Project, Internal Displacement. A Global Overview of Trends and Events 2003 (Geneva 2004) p. 5. Global IDP Project, loc.cit, p. 4. H. v. Hentig, The Criminal and its Victim (1948). For a brief history of the discipline see E.A. Fattah, ‘Victimology: Past, Present and Future’ 33/1 Criminologie 33/1 (2000) p.17-46; J.J.M. Van Dijk, (1999) Introducing Victimology, Internet (visited 2004), URL: http://www.victimology.nl/onlpub/other/ vandijk.pdf. E.A. Fattah 1991, Understanding Criminal Victimization. An Introduction to Theoretical Victimology (Ontario 1991) pp. 14-15; M. C. Bassiouni, ‘The protection of “Collective Victims” in international law, in M.C. Bassiouni, ed., International Protection of Victims (Eres 1988) p. 181-198. P. Imbusch, T. Bonacker, ‘Begriffe der Friedens- und Konfliktforschung: Konflikt, Gewalt, Krieg, Frieden’, in P. Imbusch, R. Zoll, ed., Friedens- und Konfliktforschung (Opladen 1999) p. 101. U. Ewald, ‘Victimization in the Context of War – Some Aspects of a MacroVictimological Research Project’ 2/3 European Journal of Crime, Criminal Law and Criminal Justice (2002) p. 96. E.A. Fattah 1991, op. cit., p. 4. V. Nikolic-Ristanovic,’Zrtve ratova u bivsoj Jugoslaviji: obim, Struktura I obrasci viktimizacije’ 2 Temida (2000a) p. 11-20; V. Nikolic-Ristanovic, Women, Violence and War. Wartime Victimization of Refugees in the Balkans (Budapest 2000); K. Turkovic, ‘Overview of the Victimological Data Related to War in Croatia’ 2/3 European Journal of Crime, Criminal Law and Criminal Justice (2002) pp. 202-215.

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[34] For the Former Yugoslavia see e.g. L. Sekelj, ’Ethnic Distance, Xenophobia and Ethno-Nationalist Manipulation’ (Beograd 2000) in Internet (Visited 2004), URL: http://www.komunikacija.org.yu/komunikacija/casopisi/sociologija/XLII_1/Cl1/docu ment. [35] E.A. Fattah 1991, loc.cit., p. 9. [36] J. Galtung, ‘Cultural Violence’ 3 Journal of Peace Research (1990) pp. 291-305; J. Galtung,: Strukturelle Gewalt. Beiträge zur Friedensforschung, (Reinbeck 1975). [37] See also E.A. Fattah 1991 loc.cit., p. 9. [38] Redress, FIDH, Legal Remedies for Victims of International Crimes. Fostering an EU Approach To Extraterritorial Jurisdiction (London2004) p. 2. [39] Rome Statute of the International Criminal Court (1998) in Internet (visited 2004), URL (2004): http://www.icc-cpi.int/php/show.php?id=basicdocuments. [40] D. Bloomfied, T. Barnes, L. Huyse, Reconciliation after Violent Conflict. A Handbook (Stockholm 2003) pp. 54-65; G. Johnstone, Restorative Justice. Ideas, Values, Debates (Devon 2002); E. Weitekamp, H.J. Hans-Jürgen, Restorative Justice. Theoretical Foundations, (Devon 2002). [41] E.A. Fattah 1991, loc.cit., p. 14; C. Bassiouni, loc.cit., p. 1881 ff.; D. Bloomfied, T. Barnes, L. Huyse, loc.cit., p. 54. [42] For a discussion of collective behaviour see e.g. M. Olsen, The Logic of Collective Action (Cambridge 2000); R. Senechal de la Roche, ‘Why is Collective Violence Collective? ‘, 2 Sociological Theory (2001) pp.126-144. [43] R. Strobl, O. Lobermeier, A. Böttger, ‘Uncertainty and Loss of Trust as a Result of Vicarious or Collective Victimization‘, 1 Journal für Konflikt und Gewaltforschung (2003). [44] J. Jaukovic, ‘The Forms of Victimization in the Territory of the Former Yugoslavia, 2/3 European Journal of Crime, Criminal Law and Criminal Justice (2002) p.114. [45] D. Ignjatovic, ‘Some Problems in Investigation of War Victimisation in the Territory of the Former Socialist Federal Republic of Yugoslavia’, 2/3 European Journal of Crime, Criminal Law and Criminal Justice (2002) p. 99. [46] Note that in the discipline of peace research there is a distinction between internal and external peace, as well as positive and negative peace. The latter is the prevalent state of peace in today’s world. It is the mere absence of armed conflict. [47] In a narrow sense victimology is a sub-discipline of criminology and is therefore bounded to acts that are considered crimes. In a wider sense victimology needs to address all types of victimization that are manmade. This concept reflects a “radical” perspective as it is highly critical in the sense of inclusion of a wide spectrum of victimization sources: e.g. P. Roberts, N. McMillan, For Criminology in International Criminal Justice, 1 Journal of international Criminal Justice (2003) p.318ff. [48] International Criminal Court, ‘Victim Issues’ in Internet (visited 2004), URL: http://www.icc-cpi.int/victims/victimstrustfund.html. [49] For example see P. Akhavan, ‘Beyond Impunity: Can International Justice Prevent Future Atrocities?‘, 1 The American Journal of International Law (2001) p. 7-31. [50] Rome Statute, op. cit. [51] Damocles, Reporters Without Borders, Victims´ Guide to the International Criminal Court (2003), in Internet (visited 2004), URL: http://www.rsf.org/IMG/pdf/guide_ CPI_A4_en.pdf


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Protracted War, Terrorism and Mass Victimization: Exploring Victimological/Criminological Concepts and Theories to Address Victimization in Israel* EDNA EREZ**

Abstract: The events of September 11, 2001 and the onset of the “war on terrorism” have focused scholarly attention on terrorism as a concept [1], a discourse [2], and a form of crime and victimization [3]. In the past, criminological theories have typically addressed terrorism as a form of political crime [4]. Terrorists were defined as “convictional criminals” [5] and terrorism as a type of political violence employed to bring about social change [6]. Recent discussions on terrorism refer to it as an international “hate crime” [7] and distinguish between revolutionary, religious and nationalist types/causes of terrorism. Scholars discuss the origin of terrorism (e.g. state vs. political), the qualities of political terrorism and the degree of application [8]. Victimology, which has primarily focused on harm resulting from law violations within a specific legal system, eschewed the analysis of victimization ensuing from terrorist acts that challenge the legitimacy of a socio-legal system. I Thus, there is little victimological research on victims of terrorism. Using Israel as a case study, this article attempts to fill this gap. It explores the application of victimological/criminological concepts and theories to explain recent trends and patterns of victimization related to terrorism. Since September 29, 2000, which marks the onset of the second intifada (uprising) in Israel, the country has experienced increased levels of mass victimization as a result of intensive terrorist activities. This article will address three aspects of the phenomenon. First, it presents the competition over the status of victim in the framework of the IsraeliPalestinian conflict, which has been impacted by the outbursts of terrorism. Second, it describes the mass victimization or, in the words of Ewald and von Oppeln [9], the “inventory of suffering” in Israel over the past four years. Third, it endeavours to apply a theoretical framework and concepts of Victimology/criminology to explain victimization patterns and fluctuations. The article concludes with suggestions for directions in studying mass victimization due to protracted war.

The competition over victimhood or victimization as propaganda A story is told of a Jewish man who was riding on the subway reading an Arab newspaper. A friend of his, who happened to be riding in the same subway car, noticed this strange phenomenon. Very upset, he approached the newspaper reader: "Moishe, * U.S. State Department, Office of International Information Programs, granted financial support to participate in the workshop. Kent State University allowed time off to conduct the research and provided library services. Mark Colvin, Uri Holzman and Peter Ibarra made helpful comments and suggestions. Points of views are those of the author and do not represent those of the supporting agencies. ** Department of Justice Studies, Kent State University.

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E. Erez / Protracted War, Terrorism and Mass Victimization

have you lost your mind? Why are you reading an Arab newspaper?" Moishe replied: "I used to read the Jewish newspaper, but what did I find? Jews being persecuted, Israel being attacked, Palestinians blowing up buses, Jews disappearing through assimilation, intermarriage and terrorism, Jews living in poverty. So I switched to the Arab newspaper. Now what do I find? Jews own all the banks, Jews control the media, Jews are all rich and powerful, Jews rule greater Israel and the whole world. The news is so much better!” It is commonly agreed that definitions of crime and victimization are the result of political processes reflecting power relations [10]. Both globally and locally, the socio-political construction of victimhood is a given. Victim or criminal statuses are created, negotiated and conferred in the market of public opinion. Nowadays we have become accustomed to media accounts of Israeli oppressive occupation of Palestinian land, heavy-handed treatment of residents in Gaza and the West Bank, indifference to Palestinian suffering and humanity, as well as unwarranted restrictions on their work and daily life. Palestinians are routinely portrayed as victims, whereas Israelis are characterized as the perpetrators of aggression. Currently, it is not “cool” to present Israelis as victims. To use Nils Christie’s [11] terminology, Israelis are not perceived as “ideal” victims; some even insinuate that they are “deserving victims”.II As presumed and consistently depicted “aggressors” they are not considered blameless in their suffering and anguish. From an Israeli perspective, prevailing views of Israel’s self-preservation efforts as aggression, or Israeli claims of self-defence as oppression, are merely a modern version of centuries-old anti-Semitism [12]. In Israeli collective memory, the experience of the months preceding the Six-Day War, when the Arab world united to attempt eradication of the state and Israel was left alone to defend itself, cannot be forgotten. For many Israelis, this period is reminiscent of the Holocaust era, when the world stood by, silent and indifferent to the plight of the Jews. Taking over the territories – the outcome of Israel’s efforts to thwart attempts to annihilate it – was neither voluntary nor intended, but a by-product of Israeli selfdefence efforts. To Israelis, it is a temporary condition or “necessary evil” until a peace agreement is signed and implemented.III Israelis, who were raised on songs such as “The whole world is against us” and “I do not have any other country,” point out that accusations of aggression and alleged heavy-handed occupation made by an unsympathetic, if not hostile, world are not surprising and, in fact, are expected. Decisions made by world bodies such as the UN or the International Criminal Court are therefore easily neutralized, being labelled “UmIV shmum” or “Hague shmag.” In Israeli public opinion the decisions of these world bodies are nothing more than PR (public relations), a victory of the enemy and its supporters in claiming victim status. Israelis condemn their State Department informational office (Hasbara) for its inadequate efforts to articulate their suffering, and for its failure to convey, clearly and unequivocally, the image of Israelis as undeserving victims. The Israeli-Palestinian conflict, like other political conflicts over land, resources, history, religion and culture, is known for the reluctance of each side to acknowledge the victimization of the other, while promoting its own victimization. The competition for victim status takes place in domestic and international arenas, and is manifested in a variety of ways. It is customary for each side to usurp the other’s terminology and imagery of victimhood, which is perceived as exclusively describing its own victimhood. Israeli Jews, for example, attribute the establishment of the state of Israel to the Holocaust experience, and the need to establish a homeland for Jews. Palestinians refer to the creation of the state of Israel as their


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Holocaust, using Jewish collective memory in the service of their own nationalism [13]. While Israeli Jews celebrate on Independence Day the founding of the state, Palestinians refer to this day as their holocaust or “catastrophe” (Al Nakbah), treating it as a day of mourning. Palestinians also equate the state of Israel, and the way it has treated the Palestinians, with the Nazi regime and the crimes it committed against the Jews. Israel is often portrayed as a ‘Nazi-Zionist entity’ and its practices are characterized as ‘Nazi-Zionist crimes’ [14], Some have even gone as far as to refer to Palestinians as “the real Jews” [15], and as the ultimate victims of Western history [16]. This self-proclaimed victimhood, the refusal of the opposing parties to acknowledge the harm inflicted on the other, and their insistence on being seen as the sole victim have been recurrent themes in the conflict. As some researchers have observed, in the context of the Israeli-Palestinian conflict, both sides’ identities are in “negative interdependence” [17] – asserting one group’s identity requires negating the identity of the other. Each side perceives the other as a source of some of its own negative identity elements, especially a view of the self as victim and as victimizer [18]. The political dimensions of crime and victimization are also reflected in the labels applied to perpetrators of acts of hostility and their motives. To Palestinians and their supporters, the so-called suicide bombers are heroes, freedom fighters and martyrs (shahids). Israelis refer to them as homicide or genocide bombers; they are terrorists, cold-blooded murderers whose aim is to annihilate the Jews. Palestinians argue that their violence is justified as resistance, that references to their actions as irrational or barbaric behaviour are untenable, taken out of context, and reflect hegemonic colonial relations which amount to a new version of Orientalism [19]. Overall, Israel provides a clear example of a place where victimization is highly politicised, and one in which, in Ewald’s introductory remarks at the Workshop on NATO Science Program [20], “the threshold between peace and war dissolves, no clear line between the ‘good victim’ and the ‘bad perpetrator’ can be drawn, and the positions of victim and victimizer seem to become interchangeable”. Yet, despite disagreement about who is the victim and who is the victimizer, there is agreement that the protracted war associated with the second intifada has produced mass victimization. The second intifada and mass victimization in Israel Since the onset of the second intifada in September 2000, Israel has experienced unprecedented terrorismV in terms of both intensity and frequency. In military terms, the current situation has been defined as “low intensity combat” (“LIC”). Although the two sides disagree about the reasons for its eruption,VI there is no disagreement that the second intifada marks a new era in mass victimization, involving personal, socialVII and economic aspects. During the last four years Israelis have been subjected to over 24,400 attempted or completed terrorist incidents,VIII including suicide bombings, knife attacks, shootings, bombings, being run over with cars, lynchings, car bombs, mortar bombs, rocket attacks and home intrusions. Civilians of all ages, of every ethnic group and religious affiliation, have been killed or injured. As of September 5, 2004, 989 people (694 civilians and 295 security personnel) have been killed, and 6704 Israelis (4704 civilians and 1990 security personnel) have been injured, with many disabled for life.IX Most attacks have been perpetrated against Jewish targets, although mixed Arab-Jewish enterprises and areas have not been spared.X Incidents have occurred primarily in the large cities, although attacks have also occurred in smaller communities, villages, towns, and on the roads. Attacks have taken place on buses and at bus stops and train stations, in shops and markets, in places of entertainment and celebration, in private homes or hotels, and at any other place where people congregate. The attacks have occurred during morning and

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evening rush hours, when people are going to work or school, and throughout the day into the late hours of the night. There has been a general sense among Israelis that there is no pattern to the attacks, and neither time nor place can be predicted [21]. Daily life has often been disrupted, as people avoid places perceived as possible targets. Extra security measures have been taken to thwart terrorism, including security guards at entrances to public buildings, entertainment establishments, eating places, shopping malls and schools. It has become difficult to adhere to a time schedule, whether for work, school or leisure activities – lengthy traffic jams resulting from road checks or the closing of areas are common experiences. Recent newspaper articles describe cases in which, due to delays at a checkpoint, security checks or a roadblock, a couple was two hours late to their own wedding, a surgery could not be performed as scheduled, and a woman gave birth in a car on her way to the hospital. The result of the protracted war has been a pervasive sense of anxiety and uncertainty; no one has felt safe or secure [22]. There has also been widespread mistrust and suspicion of anyone who seemed “out of place” or might be a potential terrorist, who would previously have seemed benign. Perpetrators of terrorism have appeared in soldiers’ uniforms, impersonated orthodox rabbinical (Yeshiva) students, or dressed as a young punk when mingling in crowds to perform their killing mission. The physical and psychic signs of the protracted war are visible as well as invisible. The visible ones range from security pits to dispose of or hold suspicious items at every street corner, signs calling for awareness of unusual, out of the ordinary objects or people, to barricades erected in front of public buildings and security checkpoints at every gathering place. There are also specialized rituals, language, laws and social institutions to address the victimization resulting from the protracted war. Routines and practices regarding every aspect of daily life in Israel have been re-evaluated due to the constant security threats. Discourse has developed recently that centres on stress and post-traumatic stress disorder, referred to by Israelis as hamatzav, in Hebrew “the situation” [23]. In comparison to victims of crime or other ill fortune, victims of the political conflict in Israel are placed higher on the moral hierarchy of victimhood, often triggering thorough police investigations to ascertain whether victimization resulted from criminal or “nationalistic” motives. Whereas Israel does not have reparation laws or compensation programs for crime victims, it has a special law and elaborate rules providing reparations to victims of acts of war or hostile actions, including terrorism (The Law for the Rehabilitation of Victims of Hostility Acts, 1974). The “emergency routine” [24], which Israelis have long been accustomed to, has recently taken over all areas of Israeli social life. “The situation” has been used as a reason for postponement of serious discussion of critical social problems,XI for delays in needed communal, economic or legal reformsXII and for interventions in citizens’ lives which, in some cases, amount to civil right violations [25]. The financial burden of the increase in security expenses has resulted in substantial cuts in social security and welfare services and delays in paying local government wages; and has adversely affected the financial status of most sectors of Israeli society. Changes in investments and capital flight have been associated with the conflict [26]. Although there is some state assistance to businesses that have suffered economic harm as a result of the protracted war (e.g. reduced taxes or incentives to continue business as usual), there has been a general decline in economic growth. Personal victimization resulting from protracted war includes three circles, denoted by their proximity to the direct victim: primary or first order victimization, experienced by those who suffer harm directly, whether it is injury, loss or death; secondary or second order victimization, experienced by family members, relatives or friends of primary victims;


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and tertiary or third order victimization, experienced by those who observe the victimization, are exposed to it through TV or radio coverage of the victimization, or help and attend to victims [27-28].XIII Research has documented the powerful anxiety-inducing effect of the media when showing terror [29]. With remindersXIV of the war and its victims abounding, the impact of the terror is amplified. For many people, some or all of the three dimensions overlap. The omnipresent fear of victimization associated with terrorism has led to Israelis’ preoccupation with concerns for physical protection, emotional protection of significant others, and the creation of normality and routine [30-31]. Mothers, in particular, have been seriously concerned with what will happen to their children if they are killed in a terrorist attack [32]. These concerns about safety have had a substantial impact on Israelis’ willingness to go out. The frequency of the terrorist attacks, more than their severity, has resulted in a substantial decrease in tourism [33], which is a major part of the nation’s economy. Reduction in both domestic and overseas tourism has, in turn, led to businesses closing and, therefore, an increase in poverty and unemployment. There is also evidence that the current atmosphere of political violence has led to an increase in violence by Israelis against each other, particularly in violence against women [34]. Property crime has also risen due to the higher level of poverty and unemployment (Israeli Police Crime Statistics). There is no one in Israel who has not been touched by the terror, directly or indirectly. Recent studies in Israel [35-36] found that almost one-fifth (16%) of a national sample had been directly exposed to a terrorist attack and over one-third (37%) had a family member or friend who had been exposed. The Bleich et al. [37] study also reported that of those who responded to questions about emotional harm, over three quarters (77%) had at least some traumatic stress symptoms and almost one-tenth (9.4%) had acute stress, with over half (59%) reporting feelings of depression. Although the majority of respondents (82%) expressed optimism about their personal future and the future of Israel (67%), and confidence in their ability to function in a terrorist attack (75%), over half (60%) expressed a feeling of reduced safety with respect to themselves and their relatives (68%). Stress was more prevalent among women, and was related to their sense of safety. Level of exposure and objective risk were not related to stress. The most prevalent mechanisms for coping with stress and post-traumatic stress were active information searches about loved ones and social support. The reduced sense of safety was related to the perceived unpredictability of the terrorism [38]. Although feelings of randomness are typically experienced on the individual level, theoretical approaches to personal victimization may offer a framework that accounts for patterns and fluctuations in mass victimization, the topic of the next section. Applying theoretical approaches to mass victimization related to the second intifada Attempts to study mass victimization related to the protracted war in Israel have focused mostly on the psychological impact of terrorism on Israelis in general [39-40], and the impact of the protracted war on special groups, such as mothers [41] or social workers who attend to victims’ needs after their victimization [42]. There has been little research addressing patterns, fluctuations or risk factors of victimization due to the protracted war and terrorism. In exploring theoretical approaches to the study of mass victimization, theories addressing victim’s exposure to risk may offer a fruitful analytic framework. Important formulations of the conditions that produce victim risk include the routine activities [43] and lifestyle [44] theories, or their integration [45-46]. Although the theories were created to address predatory or property crime, with both including an underlying assumption that opportunity is a major factor in victimization, their application to ideologically motivated crime or terrorism has the potential for explaining victimization patterns, trends and fluc-

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tuations. It may also account for social characteristics that render individuals vulnerable to terrorism-related victimization. The routine activities theory [47] states that the volume and distribution of crime is a result of the interaction of three major variables inherent in societal structure: suitable targets, capable guardians and motivated offenders. The presence or absence of these three components affects the likelihood of victimization; manipulation of one or more of these three components will show variations in the volume and distribution of terrorism-related victimization. Lifestyle theories [48-49] complement the routine activities theory, elaborating on exposure risk inherent in people’s routines and daily life activities that render them vulnerable to victimization (e.g. time spent in public areas, going to bars etc.). As detailed below, each of the elements specified by the theories is complex, yet together they create an integrated framework that explains mass victimization resulting from terrorism. I will begin by addressing the suitability of the three major elements of the routine activities theory for explaining terrorism. Motivated offenders: The routine activities theory assumes the presence of “motivated offenders”. It takes for granted the presence and availability of these “motivated offenders” at all times, and it presumes that crimes are mostly a product of opportunity, endorsing a “rational choice” perspective [50] of understanding motivation. It does not tackle the source of motivation such as, in our case, the origin of the desire to commit terrorist acts. The level of “motivated offenders”, however, cannot be taken for granted, especially in the Israeli-Palestinian conflict. Over the past fifty years, there have been periods of relative calm followed by periods of acute terrorist violence, as the last four years of the second intifada have demonstrated. Explanations for the origin of a terrorist’s motivation, and changes in the supply of motivated perpetrators, can be found in theories of crime. Criminological theories have offered insights into the source of motivation for criminal acts. For instance, strain theory, especially the one proposed by Robert Agnew [51], suggests that strain emerges from three sources: perceived failure to achieve goals, the blockage or loss of positive stimuli (such as the loss of a desirable job or loss of a family member), and the presentation of negative stimuli (such as coercive treatment from others). These perceived “victimizations” tend to produce a strong feeling of anger which becomes even more pronounced if the situation that produces the strain is perceived by the person to be unjust. In such circumstances, anger may rise to a level of almost irrational rage. The question that remains, however, is how this anger and rage get translated into actions as drastic as terrorist attacks, rather than being channelled toward other, less lethal, activities, such as mass political protest, or non-violent approaches that produce a peaceful and just outcome. Theories such as Sutherland’s differential association theory [52] and Wolfgang and Ferracuti’s [53] subculture of violence theory may prove useful in this regard. The motivation that arises from strain and anger may be channelled toward terrorist behaviour through association with groups that promote and direct the strain and anger towards suicide bombings or other acts of terrorism. These groups produce a “solution” to the strain and anger through a rebellion adaptation [54] that offers a religious, spiritual goal (e.g. entering paradise), which, in turn, replaces a goal of worldly success. This process occurs through association with groups that endorse “definitions” and promote a particular type of criminal law violations. These groups provide direction to the underlying motives, and support rationalizations and justifications for the behaviour, which become compelling to a person engaged and socialized by the group. These groups are not open to everyone, and only some individuals will be attracted to the groups (or drift toward them) – usually someone with a background of strain who is looking for a channel to express his or her anger. Such groups begin to thrive in areas that have experienced violence for a long time. As children become accustomed to bloodshed and aggression as an everyday event, and as violence becomes part of their “cognitive landscape” [55], they begin to believe that violence


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is an appropriate response. Terrorist activities are therefore employed to defend honour, gain respect, or protect apparent violations of entitlements or rights, and emerge as a subculture of violence [56].XV This subculture of violence supports the growth and continuation of groups that promote and train young people in the conduct of violence (and terrorism), and gives a message of a “righteous cause” to turn nascent anger into a “righteous rage” that readily promotes terrorism. In sum, the routine activities and lifestyle theories focus on the opportunity to commit crime, but are silent on the sources of motivation for committing violent acts. Reduction of opportunities to commit terrorism is an important step in preventing terrorism, making target hardening and defensible space strategies helpful in reducing victimization. In addressing the missing link in the equation – the sources of motivation for the attacks – criminological theories such as strain, differential association, and subcultural violence, have the potential to increase our understanding of the issue of motivation, which the routine activities theory assumes, but does not address. In the Israeli-Palestinian context, the number of motivated perpetrators and the timing of their operations can be influenced by several factors. The supply of motivated perpetrators of terror in the region has been high, as evidenced by interviews with Palestinians residing in Gaza and the West Bank, as well as among Palestinians and their supporters in the Arab world and elsewhere. Motivation is instilled from an early age [57]; preparation of potential perpetrators begins in kindergarten and continues throughout the educational system. Religious, cultural, formal and informal social control agencies instil the belief that martyrdom is ultimate happiness, that Jews are the enemy and that the Zionist state occupies stolen Palestinian land. Textbooks, school materials and maps portray Israel as non-existent, and Palestine as a country instead of Israel, not beside it. Sermons in mosques, classes in schools and universities, public display of martyrs’ (shahids) pictures and exaltation stories about fallen brethren heroes all send the uniform message that terrorism is cherished and Palestinian statehood can only be achieved through war and violence. Images of youngsters throwing stones, fighting back and resisting the occupation are promoted and treasured. Perpetrators of violence are promised paradise and an afterlife with 72 virgins for their pleasure.XVI Families of shahids receive substantial monetary sums following the death of their beloved, thereby increasing the motivation to engage in terrorism. The supply of motivated perpetrators is increasing with every preventive, defensive or retaliatory action by Israel, providing renewed grounds to commit violence, and producing new recruits to avenge the loss of family members or relatives.XVII Palestinian men and women who were involved in several recent acts of terrorism acknowledged the loss of a relative as one reason for their suicide mission (e.g. the female who perpetrated the suicide bombing at the Maxim restaurant in Haifa, a mixed Arab-Jewish enterprise, or the male Palestinian who blew up himself at the checkpoint near Rammalla) [58]. Likewise, planned assassinations of leaders and activists of terrorist organizations generate motivated perpetrators. The September 2004 terrorist acts in Beer Sheva have been listed by Hammas as revenge for the assassination of Rantisi and Sheich Yassin. To frame the aim of a planned terrorist act as revenge for leaders who were killed by the Israeli military helps to motivate potential perpetrators to carry out terrorist acts, regardless of the time frame or location of the act [59]. Terrorism as an active vehicle for producing political change has been used to create pressure to negotiate, make concessions or otherwise influence political outcomes, often dictating the timing of attacks. For instance, during different rounds of peace talks, representatives or allies of Palestinian Authority related organizations issued orders to stop terrorist activities, while a “green light” was given to commit terrorism when difficulties surfaced in reaching an agreement or talks had failed. On the other hand, opponents of peace

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negotiations (e.g. Hammas or Hizballah) have made efforts to frustrate negotiations or prevent the talks by timing their operations to take place just before a meeting or talks. The closure of Israel for the majority of Palestinian workers, particularly following information about imminent terrorist attacks or in reaction to terrorism supported by Palestinian organizations or the Palestinian Authority itself, has led to an increase in the number of Palestinians who are motivated to commit property offences. As Israel is the main source of employment and work for many Palestinians, property crimes, particularly car theft, but also theft of agricultural machinery and other items of value, have increased. It has been observed that fluctuations in the number of these crimes can be traced to whether the borders were open or closed. Capable guardians: Guardianship is measured by the way in which individuals protect themselves or their property from victimization. The Israeli situation includes several layers of guardianship, combining state institutional infrastructure to prevent victimization with mobilization of the general citizenry. Many Israeli citizens, for instance, are permitted to carry weapons for security purposes and there are numerous civilians who carry weapons at all times. There have been many incidents in which private citizens were commended for using their weapons to thwart an attack or for injuring or killing a terrorist. The importance of guardianship is inculcated in Israelis, in all places and at all times. Israeli citizens are continuously implored through written signs and other forms of communication to be aware of any suspicious person, package, bag, suitcase, or seasonally inappropriate clothing. Any suspicious item is immediately reported to the police. There have been numerous occasions where streets were closed for hours and traffic diverted to alternative roads because a suspicious item had been spotted. The Israeli National Police (hereafter police) has a routine procedure which consists of sending a special expert team and marked vehicles for disposing of and, if necessary, detonating suspicious items. Guardians include primarily state agencies charged with providing security and law enforcement, which include the police, Border Guards (Mishmar Hagvul-- a special section of the police designated for securing border areas), the military and the General Security Services (Shabak). The police in Israel are charged with maintaining internal security, in addition to their law enforcement mandate; attempts to enforce the law in criminal matters often assume secondary importance compared to pressing security concerns. Police officers have openly discussed the overriding priority of attending to “ticking bombs” or “security threats” over “normal” personal, violent or property crimes [60]. In the Israeli situation, state agencies acting as guardians (e.g. police) often react to information about impending terrorist attacks. Information gathering (conducted by the Shabak, the General Security Services agency) is another critical aspect of guardianship and terrorism prevention. The military is similarly engaged in averting attacks and protecting targets, often acting in response to prior information about impending attacks. In some instances, however, placing guardians around attractive or anticipated targets have caused acts of violence to be moved to less guarded locations. There are also ample examples of perpetrators who, when realizing that they cannot reach the target due to guardianship, or after noticing that they have been detected, rushed to perpetrate the act elsewhere, causing less harm than would have resulted had they reached their desired target. Suitable targets: Suitability of targets (property or persons) refers to the form or value of targets, and characteristics related to visibility, accessibility and vulnerability to victimization. Examination of forms, types, or characteristics of terrorist targets demonstrates that they were judged attractive due to the potentially high number of victims (or specific types of victims, such as youngsters or soldiers), or because of their accessibility, vulnerability or feasibility in terms of execution. When analysing terrorism, attractiveness of targets is measured not only by the number of potential victims or the economic loss (for victims) or gain (to perpetrators) involved, but also by the symbolic value of the target. For instance,


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the Azrieli Towers in Tel Aviv have been the focus of several terrorism plans as they symbolize Israeli economic success and western values, similar to the Twin Towers in the U.S. Efforts to reduce the vulnerability of potential targets have included primarily target hardening, e.g. closure of back or side entrances and leaving only a front entrance that is manned by a security guard, setting up barriers around the building, constructing fences around remote or isolated towns and villages, and placing gates at the entrances which close at a certain hour in the evening. A major attempt at target hardening was the Israeli government’s decision to build a security fenceXVIII that separates Palestinian areas from Israeli ones, making it difficult for terrorists to cross over into Israel to perpetrate attacks. Since the fence has been built (and although it has not yet been completed) a significant (90%) drop in the number of attacks has been noted. There has been a decrease of more than 70% in the number of Israelis killed, and there has been a drop of more than 85% in the number of wounded.XIX Critics of the routine activities theory have argued that the theory does not address significant communal, social/demographic and economic variables, which constitute lifestyles that expose people to a higher risk of victimization. The lifestyle theory has supplemented the routine activities theory in identifying risk factors in exposure to victimization [61]. Israeli lifestyle features, such as riding buses, living in remote or isolated communities, driving to such communities, particularly those located outside the Green Line (the pre-1967 border line), have been associated with a higher risk of victimization, as were other Israeli lifestyle characteristics such as eating in restaurants or sitting in cafes. Of those killed or injured in bus suicide bombings there was a disproportionate number of members of the lower socio-economic echelon of Israeli society – those who do not own private cars and rely on public transportation for travel. They included the elderly, recent immigrants, and unskilled or foreign workers. In the early morning hours, school and university students, as well as soldiers, have been disproportionately victimized. One of the most noticeable changes in the behaviour of Israelis who own cars is that they have begun to drive their children to school so that they do not have to ride on buses. Victims in restaurants, cafes and entertainment places were more likely to be younger and in the upper socio-economic echelon. Conclusion This article attempted to explore theoretical approaches that can be applied to explain terrorism and its resultant mass victimization related to the protracted war in Israel. Since the onset of the second intifada in September 2000, terrorism in Israel has taken a different course compared to previous years, increasing in both severity and frequency. Granted that victimhood is politically defined and, in the current Israeli-Palestinian conflict, the distinction between victim and victimizer is contested, victimology can nonetheless provide a framework for explaining patterns, fluctuations and trends in personal victimization, or the social characteristics of victims affected by terrorism. Criminological theories can offer a rationale for the motivation for the commission of acts of terrorism, as well as for the transmission of relevant value systems and modes of thinking. Despite the perceived randomness of the terror on an individual level, theoretical frameworks derived from these fields, often created to explain conventional crime, can generate testable hypotheses, which account for observed patterns based on routine activities or lifestyle. As terrorism is increasingly employed as a tool to bring about political or social change in many countries, examining the recruitment of terrorists, and identifying victim exposure variables unique to specific locales or contexts, can enhance our understanding of mass victimization. This article has been a small step in this direction.

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Notes I In perusing the content of victimology conferences in the past two decades one may find occasional papers addressing the impact of terrorism on the economic situation, on the psychological welfare of victims, or the treatment victims of terrorism. There has been little attention to theories addressing exposure to terrorism. II For the concept of deserving and undeserving victims in the context of political violence in Northern Ireland see Knox, 2001. III The conquest of Arab (Egyptian, Jordanian and Syrian) land in 1967 provided access to documented plans to eradicate Israel, thereby justifying the strict control of the Palestinians until an agreement is reached. According to Israel, more recent invasions into Palestinian-controlled areas led to discovery of documented Palestinian Authority financial support for terrorism, increasing Israelis’ distrust of the Palestinians and intensifying their reluctance to make concessions. IV The Hebrew translation of the United Nations (UN) acronym is UM (Umot Me’uchadot). V The word terror (or terrorism) itself is contested by many Palestinians, who refer to terrorist activities perpetrated by fellow Palestinians as violence, and label what Israelis perceive as defensive acts of the Israeli government and its military as terror. For discussion of the rhetoric of terrorism, see Kapitan and Schulte, 2002. For discussion of self serving perceptions of terrorism among both Israelis and Palestinians see Shamir and Shikaki (2002). VI The Palestinians attribute the onset of the intifada to Ariel Sharon’s “provocative” visit to Mount Temple (in Arabic Haram-a-Sharif, meaning the site of the respected holiness). Israelis have argued that the Sharon visit was merely an excuse and the intifada was in the making for a while, with the background of the reluctance of Yasar Arafat to accept the offer of peace for land presented by Barak under the auspices of President Clinton in August 2000. This was confirmed by the former Palestinian Authority Minister of Communications, Immad Al-Faluji in a speech he made in Lebanon in March 2001: "Whoever thinks that the Intifada broke out because of the despised Sharon’s visit to the Al-Aqsa Mosque, is wrong, even if this visit was the straw that broke the back of the Palestinian people. This Intifada was planned in advance, ever since President Arafat’s return from the Camp David negotiations, where he turned the table upside down on President Clinton. [Arafat] remained steadfast and challenged [Clinton]. He rejected the American terms and he did it in the heart of the US." (Al Safir, Lebanon, March 3, 2001) VII One important social cost in the context of the intifada, which for space reasons will not be addressed in this article, is the impact of the protracted war and terrorism on the relations between the Israeli Arab and Jewish communities. Arab Israelis have been conflicted in the current political situation, feeling loyalty to both the state of Israel and to their brethren fellow Palestinians in the West Bank and Gaza. The few cases in which Arab Israelis have been found to collaborate with or aid terrorists led to increased suspicion and distrust between the two communities in Israel, with some Israeli Jews questioning of the loyalty of Arab Israeli citizens to the state of Israel. On the other hand, there have been numerous instances in which Arab Israelis have helped in a variety of ways in combating terrorism, in addition to being victims of terrorism themselves. Israeli Arabs are 20% of the population, and are totally enmeshed in Israel's society, culture, economy and security. While almost all of them empathize with the Palestinian cause, they are in no way monolithically "pro-Palestinian" or "anti-Israeli". Like in any society, there are extremists on both sides, and a broad majority of those in the middle. On the one hand, there is a minority of Israeli Arabs involved in active terror and terror support, and on the other there are Arabs (not just the Bedouins and Druze) who serve in the Israel Defense Forces (the IDF, the Israeli military), police, Shabak and Mossad. There are Arab members of Knesset (Israeli parliament), and government department and agency heads, numerous Arabs in the Israeli diplomatic corp (including ambassadors), Arab newscasters, editors and producers in the mainstream media, department heads in the top hospitals, wealthy businessmen, actors, etc. Many of the Magen David Adom (the Israeli counterpart of the Red Cross) first responders to terrorist acts around the country are Israeli Arab medics and doctors. VIII These numbers do not include numerous plans to perpetrate attacks that were thwarted by preemptive strikes of the military. IX At the time of revising this article, October 1, 2004, the number of people who got killed exceeded 1000. Considering that the population of Israel is about 6 million, the number of victims injured and killed as a result of terrorist attacks amount to mass victimization. In terms of the psychological impact, the rate of victimization is far greater, as discussed later in the article. X The terrorist attack on the Maxim restaurant in Haifa in the summer of 2003 XI Yael Dayan, an Israeli Parliament (Knessett) member, when addressing in the Knessett the recent increases in woman killing (femicide) in Israel pleaded that the war with the Palestinians should not take precedence over the war in the home, meaning domestic violence. XII The needed change in the Israeli legal situation, which since the establishment of the state in 1948 has been officially defined as “emergency condition,” has recently been noted by the Israeli High Court of Justice. The relevant 1948 definition includes regulations that provide for administrative detentions, and other prob-


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lematic legal scenarios. The High Court has given the Israeli legislature a six month period to complete the task of changing the legal situation (see Haaretz, September 10, 2004) XIII In the Oklahoma bombing trial, fire fighters who rescued victims were allowed to provide victim impact statements at the trial of Timothy McVey, thereby officially being recognized as victims. XIV Reminders in the form of memorials to casualties of war and terror can be found in every public or private and semi-private places in Israel. Pictures and names of victims can be found in the schools they attended, the universities they enrolled or graduated from, in their workplace or in public buildings of cities, towns and villages they lived in and on the roads where they were killed. XV Similar processes occurred in Northern Ireland and in England among the Scotch-Irish, which were reproduced in the American South in the 1800s, resulting in terrorist vigilante groups and later the Klu Klux Klan. XVI A young somewhat retarded Palestinian male, 16 year old Hussam Abdu, was detected in March 2004 as carrying a heavy school bag wearing a suicide explosive belt at in a checkpoint in the West Bank. After being stopped, it was discovered that Abdu admitted that he was convinced by an Al-Aksa Brigades recruiter to kill himself at the checkpoint so that his mother would get 100 Shekels (about $22). His main motivation, though, for carrying a bomb was that he had been promised fame and hero status in his school, where he was constantly taunted and mocked by his peers. He was also promised the services of 72 virgins in Paradise. Another would-be suicide bomber who was arrested in Haifa in 2002 had tissue papers wrapped around his genitals. He explained that he wanted to protect his genitals during the explosion so that he can function once he meets the promised virgins. XVII Recent research on Palestinian suicide bombers by Berko [62] and Berko & Erez [63] sheds light on the inner world of suicide bombers and their dispatchers, their motives to perpetrate suicide terrorism, including the way beliefs in the “Garden of Eden” drive them to commit acts of martyrdom. See also Hafex, 2004 [64] XVIII Palestinians and their supporters have termed the fence a wall, making analogies to the Berlin Wall and references to ghettos resulting from this action, which Israelis see as another attempt to manipulate Jewish victim terminology. In reality, the security fence is 97% fence and only 3% wall, mostly in areas where Israeli residential areas touch Palestinian ones. The wall is installed in lieu of a fence only where Israeli homes or roads are within effective handgun range of Palestinian houses or buildings, or where the fence system, with a total width of 75-100 meters, is impractical (the wall takes up less than 8 meters in total width). XIX The September 2004 dual bus bombing in Beer Sheva, on the other hand, suggests that areas not protected by the fence are vulnerable.

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[28] Somer, E., E. Buchbinder, M. Peled-Avram, and Y.Ben-Yizhack (2004) The stress and coping of Israeli emergency room social workers following terrorist attacks. Qualitative Health Research, 14: 1077 - 1093. [29] Slone, M (2000) Responses to media coverage of terrorism. Journal of Conflict Resolution. 44(4): 508-522. [30] Strous R. D, Kotler M. (2004) The ripple effect of the toll of terror. Israel Medical Association Journal ,6 (7): 425-426. [31] Dekel, R. (2004) loc. cit. [32] Dekel, R. (2004) loc. cit. [33] Pizam, A.and A.Fleischer (2002) Severity versus frequency of acts of terrorism: Which has a larger impact on tourism demand? Journal of Travel Research 40(3): 337-339. [34] Adelman, M.(2003) loc. cit. [35] Bleich A, Gelkopf M, Solomon Z (2003) Exposure to terrorism, stress-related mental health symptoms, and coping behaviors among a nationally representative sample in Israel. JAMA (Journal of the American Medical Association): 290 (5): 612-620. [36] Gidron Y, Kaplan Y, Velt A, Shalem R (2004) loc. cit. [37] Bleich A, Gelkopf M, Solomon Z (2003) loc. cit. [38] Gidron Y, Kaplan Y, Velt A, Shalem R (2004) loc. cit. [39] Bleich A, Gelkopf M, Solomon Z (2003) loc. cit. [40] Gidron Y, Kaplan Y, Velt A, Shalem R (2004) loc. cit. [41] Dekel, R. (2004) loc. cit. [42] Somer, E., E. Buchbinder, M. Peled-Avram, and Y.Ben-Yizhack (2004) loc. cit. [43] Cohen L. and M. Felson (1979) Social change and crime rate trends: A Routine activity approach. American Sociological Review 44: 588-607. [44] Jensen and Brownfield (1986) Gender, lifestyles and victimization: Beyond routine activities. Violence and Victims 1, 85-89. [45] E. Ehrhardt Mustaine and R. Tewksbury (1998) Predicting risks of larceny theft victimization: A routine activity analysis using refined lifestyle measures. Criminology 36: 829-857. [46] Miethe, T.D. and R.F. Meiers (1994) Crime and Its Social Context: Toward an Integrated Theory of Offenders, Victims, and Situations. Albany: State University Press. [47] Cohen L. and M. Felson (1979) loc. cit. [48] Jensen and Brownfield (1986) loc. cit. [49] Sampson R. J. and J. L. Lauritsen (1990). Deviant lifestyles, proximity to crime and the offender-victim link in personal violence. Journal of Research in Crime and Delinquency 27(2): 110-139. [50] Becker, G. (1968) Crime and punishment: An economic approach. Journal of Political Economy 76: 169-217.

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[51] Agnew, R. (1992). “Foundation for a general strain theory of crime and delinquency,” Criminology 30: 47-87. [52] Sutherland, E. H. and D.R. Cressy (1960). Principles of Criminology. (6th Edition.) Philadelphia: Lipincott. [53] Wolfgang, M. E. and F. Ferracuti (1982) The Subculture of Violence: Towards an Integrated Theory in Criminology. Beverly Hills: Sage. [54] Merton, R. (1938) Social structure and anomie. American Sociological Review 3: 672-682. [55] Sampson R. J. and W. J. Wilson (1990). Toward a theory of race, crime and urban inequality. in John Hagan and Ruth Peterson (Eds.) Crime and Inequality, Palo Alto, CA: Stanford University Press. [56] Wolfgang, M. E. and F. Ferracuti (1982) The Subculture of Violence: Towards an Integrated Theory in Criminology. Beverly Hills: Sage. [57] Robson, M. (2004) The Baby Bomber. Journal of Visual Culture. 3: 63 - 67 [58] Berko, A. (2004) The Path to the Garden of Eden: The inner world of male and female suicide bomber and their dispatchers. Tel Aviv: Yedioth Ahronot Press (in Hebrew). [59] Rosenberger J. (2003) Discerning the behaviour of the suicide bomber: The role of vengeance. Journal of Religion and Health 42 (1): 13-20. [60] Erez, E. and N. Shalhoub-Kevorkian (2004) Benign respect or malign neglect: Policing violence against women in the Arab/Palestinian community in Israel. Israel Studies in Criminology 8: 135-150. [61] Messner S. and K. Tardiff (1985) The social ecology of urban homicide: An application of the routine activities approach. Criminology 23: 241-267. [62] Berko, A. (2004) The Path to the Garden of Eden: The inner world of male and female suicide bomber and their dispatchers. Tel Aviv: Yedioth Ahronot Press (in Hebrew). [63] Berko, A. and E. Erez (2005) “Ordinary people” and “Death work:” Palestinian suicide bombers as victimizers and victims. Violence and Victims 20(6), December, 2005, forthcoming. [64] Hafez, M. M. (2004) Manufacturing human bombs: Strategy, culture, and conflict in the making of Palestinian suicide terrorism. A paper presented at the National Institute of Justice conference, Washington, DC: October 25-26, 2004.


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The Self-Traumatized Perpetrator: from Vietnam to Abu Ghraib Allan YOUNG * Abstract. The concept of the self-traumatized perpetrator emerged in the United States in the 1970s, in response to moral confusion associated with the Vietnam War. By the 1980s, self-traumatized perpetrators composed a clinical sub-population of American veterans diagnosed with posttraumatic stress disorder (PTSD), and were the subject of psychological, psychophysiological, and epidemiological research. The self-traumatized perpetrator is distinguished from other cases of PTSD in that he is said to be the psychological victim of his own violence and unlawful behaviour. The selftraumatized perpetrator is an example of a psychiatric disorder that emerges within an ‘ecological niche’ formed by discrete historical conditions, political interests, and widespread concern regarding national social identity. When this ecological niche disappears, so does the diagnostic entity – in this case, the self-traumatized perpetrator – as a recognized medical, forensic, and cultural phenomenon. This chapter outlines the history of the selftraumatized perpetrator from its beginning in post-Vietnam America to its puzzling after-life in present-day Iraq.

Introduction Medical science can be said to have two goals: to predict, prevent, cure, and manage sickness and disease and to effectively diagnose sickness and disease with the help of classifications. Achievement of the first goal is enhanced by success in the second, but is not necessarily dependent upon it. It is possible to proceed in a purely ‘empirical’ way: that is by attempting to treat a patient’s condition ‘blindly’, through a succession of interventions that appear to have helped in previous cases resembling the present one. Throughout much of medical history, treatment has been strongly empirical in this sense. The nineteenth century was a turning point in this respect, although the progress of the various medical specialities has not been even in this respect. Psychiatry has notably lagged behind. Likewise the system of psychiatric classification has been more fluid and contested than in other branches of medicine. The publication in 1980 of the third edition of The Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association (DSM-III) was a first step in creating a universal and uniform diagnostic system [1], but the process remains incomplete. Jurisprudence has analogous goals, except that it aims to classify and control unwanted behaviour rather than disease. In law as in medicine, classifications are objects of interpretation and are continually revised. Of course there is also a significant difference. In the case of law, the connection between these two goals is necessary rather than contingent: classification is a precondition for practice, and not sometimes a means of enhancing it. The job of psychiatric classification is to transform ambiguous behaviour into symptoms, to transform symptoms into syndromes, and otherwise idiopathic individuals into clinical cases. In this sense, the classifications are ways of making up people. Without the appropriate classification, certain human kinds do not yet exist, at least not within the awareness of *

Social Studies of Medicine, McGill University,3647 Peel, Montreal, Qc. H3A 1X1, Canada.

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A. Young / The Self-Traumatized Perpetrator: From Vietnam to Abu Ghraib

the group or community, its specialists, or even the individuals to whom the classification might reasonably apply [2]. In this chapter, I focus on psychiatric classifications relating to traumatic violence. I want to make two points: One, these classifications are historical products. They have been shaped by clinical experience, but also by factors unrelated to psychiatric medicine. Two, the classifications were designed to help with two problems: psychological pain and moral confusion. To make these points, I will have to follow a complicated path, leaping backward and forward in time more than once.

1. The Self-Traumatized Perpetrator 1.1 Transient Mental Illness A decade ago, Ian Hacking, a philosopher of science, coined the term ‘transient mental illness’ to describe a disorder documented in his book, Mad Travelers [3]. The term referred to a class of psychiatric conditions and matching classifications that emerged at particular periods and in particular places. According to Hacking, every transient mental illness occupies an ‘ecological niche’. Every niche emerges at the intersection of multiple historical developments: political, economic, forensic, technological, and clinical. When these particular conditions change, the ecological niche dries up, and the transient mental illness disappears. The social and epistemological space that made the disorder possible in the first place are gone: if the disorder is remembered at all, it is only as a thing of the past. The emergence of a transient mental illness and its associated ecological niche has three pre-conditions: 1. A contemporary diagnostic framework within which experts can position the new illness. 2. A supply of human raw material, consisting of distressed and dysfunctional individuals for whom the new illness provides certain advantages: psychological, social, and perhaps economic. Hacking writes that the relationship between patients, classifications and clinicians is interactive, organized around a process he calls ‘looping’, in which patients shape their behaviour to conform to the expectations of their doctors and other authorities [4]. The doctors, in turn, modify their expectations and behaviour as a consequence of the interaction. And so on. A loop is established – sometimes multiple loops involving additional categories of experts and institutions, notably forensic experts and authorities. While the looping process is self-confirming (providing evidence of the validity of a given diagnostic classification), it is likewise dynamic (a source of change). In other words, the transient mental illness is not merely an end product of history: it also has its own history and transformation over time. (Looping is not particular to transient mental illnesses.) 3. The final pre-condition is more difficult to describe. Hacking describes it as a moral space that emerges between behaviour that is regarded as being virtuous


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(e.g. behaviour aimed at self-improvement) and vicious kinds of behaviour that mock and pervert the virtuous ones (e.g. duplicity). It is within this space – a zone of moral contradictions as we shall see in a moment – that the emergent classification and its human raw material (the carriers of the transient mental illness) take shape. In other words, transient mental illnesses are defined in terms of contexts rather than essences. This characteristic explains why transient mental illnesses rarely migrate from one society or historical period to another, in contrast to other kinds of psychiatric disorders such as schizophrenia or major depressive disorder. In Mad Travelers, Hacking focused on a disorder of the later nineteenth century, called hysterical fugue. But he believes that certain contemporary diagnoses also qualify as transient mental illnesses. Among them, he would include PTSD. Initially, it seemed that PTSD fit the bill, since its historical and political origins are both unusual and well-known. Today, a quarter of a century after the initial appearance of PTSD in the official psychiatric nosology, it seems clear that it is no transient phenomenon. Unlike hysterical fugue, PTSD has successfully migrated from its country of origin, the United States, to the rest of the world. In addition, PTSD was initially associated with a very small patient population (mainly Vietnam War veterans). Today it is one of the most commonly diagnosed psychiatric disorders in the United States. While Hacking may have been mistaken about PTSD qualifying as a transient mental illness, his concept is invaluable for understanding certain sub-types of PTSD and, most especially, the self-traumatized perpetrator. 1.2 What is a ‘perpetrator’? The self-traumatized perpetrator emerged at the close of the Vietnam War, as a clinical concept and a diagnosable condition. Throughout the 1980s, self-traumatized perpetrators were the object of psychological, psychophysiological, and epidemiological research in the United States, and they composed a distinctive clinical population in psychiatric hospitals maintained by the US Veterans Administration Medical System. Like other veterans diagnosed with PTSD, their condition made them eligible for disability pensions. The self-traumatized perpetrator is defined by his distinctive etiological event: he is the victim of an act of physical or psychological violence that he inflicted on someone else. Thus he is both perpetrator and victim. It seems simple, but only if one ignores these three questions: what is a perpetrator? what is a victim? what is a trauma? 1. What is a perpetrator? The head of the Office of Legal Counsel of the White House, Jay S. Bybee, was recently asked to respond to this question, apropos of accusations of torture and abuse by American personnel at Abu Ghraib prison [57]. Bybee’s job was to clarify the meaning of culpability in the context of international law and national policy. His starting point was the perpetrator’s intent: • Did the perpetrator actually intend to inflict suffering; i.e. did he have specific intent? • Or was the suffering that the perpetrator inflicted a result of recklessness (involving actual awareness of a risk and culpable of taking that risk) or negligence (involving blameworthy inadvertence)? In either event, one speaks of the perpetrator’s general intent. • If the perpetrator intended to inflict suffering or death, one must next ask a further question. Is the consequence of his act permitted by legal convention? If the human consequences are permissible – for example, the aerial

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bombardment of areas occupied by civilian populations – then such acts are neither crimes nor atrocities. 2. What is a victim? According to Bybee’s memo, there are two kinds of victims. • •

There are people in the perpetrator’s custody or under his control – most commonly, enemy combatants who become prisoners. There are people who are recognized by law or custom or diktat as hors de combat: for instance, non-combatant civilians living in Baghdad in 2004, but not civilians living in Dresden in 1945.

3. What is a trauma … the psychological dimension of inflicting suffering? Today, the term ‘trauma’ is linked to PTSD (and Post Traumatic Syndrome). The diagnostic criteria for PTSD include certain sub-types, starting with the fact that the lapse between the traumatic event and the onset of symptoms is highly variable [8]. • •

The lapse can be brief, a matter of minutes or hours, or prolonged, taking months, years, even decades. The perpetrator’s emotional experience at the time of the traumatic event can be different from the way he re-experiences the event as part of his disorder. Rape, torture, or murder may have been positively experienced at the time of the perpetrator’s traumatic event, but re-experienced symptomatically in a state of distress and intense anxiety. Or so it is said.

1.3. The Political Meaning of the Self-Traumatized Perpetrator The self-traumatized perpetrator that we know via PTSD was unprecedented in five respects: • • • • •

The concept included the entire gamut of perpetrators – not only reckless and negligent perpetrators, but also perpetrators who intended to inflict pain and suffering. It included the entire gamut of possible victims: front-line soldiers, prisoners of war, innocent civilians. The diagnosis was accepted, either overtly or tacitly, by contemporary psychiatric institutions and authorities. The diagnosis was limited to men who served in US ground forces during the Vietnam War. The diagnosis effectively precluded criminal culpability for acts that were punishable under international conventions.

This transient mental illness, the self-traumatized perpetrator, was a product of good intentions. Unlike most other psychiatric diagnoses, PTSD is defined by its etiology: a traumatic event creates a memory and this traumatic memory drives the syndrome. Etiology (traumatic experience) and pathogenic mechanism (traumatic memory) provide PTSD with its distinctive inner-logic [9]. This feature is the only thing that differentiates PTSD from similar syndromes, notably comorbid depression and generalized anxiety (a very common combination). Thus PTSD’s symptomatic “re-experiences” (diagnostic criterion B) are differen-


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tiated from superficially similar “ruminations” associated with depression, and PTSD’s “avoidance behaviour” (diagnostic criterion C, behaviour aimed at the stimuli that trigger traumatic memory) is differentiated from similar symptoms associated with phobic anxiety disorders, and so on. The concept of the self-traumatized perpetrator was promoted in the 1970s by influential psychiatrists, notably Robert Lifton [10-13]. The concept was based on the idea that extreme circumstances can induce ordinary men to commit atrocities. Lifton called this condition the atrocity producing situation. In this situation, according to Lifton, atrocities are a defence or adaptation against imminent psychological decomposition. In this connection, he cited Elias Canetti’s analysis of the German jurist, Paul Daniel Schreber. Schreber was the author of Memoirs of My Nervous Disease (1903). Schreber’s disease was diagnosed as paranoia, and his delusion was that a plague had destroyed all life on earth. Only Schreber remained alive. According to Canetti, Schreber’s delusion mirrored the urge and unconscious logic experienced by every despot, including Hitler and Stalin: the urge to divert death onto others in order to be spared himself [14]. Lifton argues that the atrocity producing situation explains atrocities of the sort committed in 1968, in the hamlet of My Lai, where American soldiers murdered five hundred Vietnamese women, children, and old people. These murderers were ordinary men. To understand the atrocities, one must understand that the soldiers’ behaviour was purposeful – it had an adaptive function – but it was not intentional, at least not in the everyday sense. This distinction had, at the time, a political and moral purpose. It allowed the proponents of the proposed sub-diagnosis (the self-traumatized perpetrator) to extend the traumatic chain of causes and effects. It allowed them to ask about circumstances that had occurred prior to the traumatic event. More specifically, it allowed critics, clinicians, patients, and the public to ask who was responsible for the creation of the atrocity-producing situation. It would be at this prior point, before the My Lai soldiers had ever arrived in Vietnam, that the diagnosis would locate intentionality and therefore culpability. The proponents of the sub-diagnosis had two goals in mind [15-17]: • •

Obtain psychiatric care and disability pensions for all Vietnam War veterans, including men who might have committed war crimes. Undermine the legitimacy of the political regime responsible for the American intervention in Vietnam.

By 1975 the American intervention in Vietnam was over and the concept of the selftraumatized perpetrator had outlived its political utility. The sub-diagnosis survives today in relative obscurity, as a psychiatric phenomenon and clinical population in the US Veterans Administration Medical System [18, 19]. 1.4 A non-exportable diagnosis The historical origins of the self-traumatized perpetrator help to explain its limited mobility between psychiatric cultures – despite efforts to extend it to Apartheid era policemen in South Africa and child soldiers in Africa [20-23]. The South African case is illuminating. In the 1990s, the post-Apartheid government created a Truth and Reconciliation Commission [24]. Its job was to consider applications for amnesty by people convicted of human rights violations committed during the previous regime. The process was juridical and the granting of amnesty was conditional on “full disclosure [by the defendant] of all relevant facts”. The case of Eugene de Kock attracted widespread interest [25, 26]. He had been a member of the special state security unit, convicted on multiple counts of torture and murder, and sentenced to 212 years in prison. Ap-

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pearing before the Commission, de Kock confessed his activities frankly and fully, except in one respect: he did not identify his accomplices, although directed to do so by the Commission. His attorney argued that de Kock had, nevertheless, met the ‘full disclosure’ condition. The attorney’s argument was based on two claims: •

•

de Kock had chronic PTSD. He had been traumatized by seeing the effects of his violence and by a psychological conflict stemming from an inescapable moral contradiction: a contradiction between his deep-seated religious values (that said torture and murder are sinful) and his love for his family and community (whose safety required him to torture and murder people). de Kock’s expert witness, a clinical psychologist, reported that his PTSD symptoms included selective post-traumatic amnesia. As a result, de Kock was unable to bring the names and faces of his accomplices into consciousness.

The judge deciding de Kock’s appeal rejected this claim. He ruled that de Kock had not made a full disclosure, and it was reasonable to suppose that de Kock was simply lying. Like many other South African policemen, de Kock was familiar with PTSD and its forensic possibilities. Case closed. 2. From Vietnam to Abu Ghraib Let us return to the United States, where the self-traumatized perpetrator remains a possibility, and let us ask the following question: When the Vietnam War veterans are gone, can we expect the self-traumatized perpetrator to disappear? In a recent editorial in the New England Journal of Medicine, Robert Lifton proposes to extend the life of the diagnosis, to include events at Abu Ghraib prison in Baghdad [27-29]. He writes that US Army doctors have contributed to fostering “an “atrocity-producing situation” – one so structured, psychologically and militarily, that ordinary people can readily engage in atrocities”. The complicity of medical personnel in the torture of prisoners is likewise the subject of recent commentaries in the Lancet. Lifton’s proposal has fallen on deaf ears. The American public, the government, and the medical profession are prepared to see the events at Abu Ghraib as morally unambiguous: matters for the law rather than psychiatry. 2.1 The DDD syndrome There is a psychiatric story at Abu Ghraib, and it concerns a transient mental illness, although not the self-traumatized perpetrator. It is an older story that begins in the 1950s when the US Department of Defense and the CIA commissioned a group of psychiatrists and behavioural scientists to investigate a phenomenon then known as ‘communist mind control’. Evidence of this phenomenon was traced to the Moscow show trials in the 1930s, where the accused confessed their guilt fully and sincerely despite their innocence and in the apparent absence of gross physical coercion. Interest in mind control intensified during the Cold War [30-35]. The experts analyzed reports of interrogations conducted by Eastern bloc intelligence services; information obtained from American prisoners of war repatriated from Korea, concerning germ warfare confessions; and the proceedings of the Cardinal Mindzenty trial and confession in Budapest. During the same period, the Department of Defense and the CIA sponsored experiments, conducted in the United States and Canada, into the psychophysiology and psychopharmacology of mind control.


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The most influential explanation described mind control as a kind of artificial neurosis that they named the ‘DDD syndrome’ [36]: • • •

Debility, induced by sleep deprivation, inadequate food, physical discomfort, disorienting conditions Dread, synonymous with intense fear and chronic anxiety Dependency on one’s interrogators for physical and psychological relief

These conditions were said to disorganize “perception of those experiential continuities constituting the self concept…”. The effect leads to psychic regression, “in language, thought, and those integrative and mediating symbolic processes essential to reasoning and foresight”. And the individual becomes susceptible to “arbitrary and unsubtle training procedures … leading [in turn] to relatively automatic and uncritical imitative responses”. Once born, the DDD neurosis took on a life of its own. It became not merely a way to explain puzzling behaviour, but a template for interrogating high-value prisoners – that is to say, a condition that one might foster as well as resist. The DDD neurosis persists over the following decades in the interrogation manuals – and perhaps the practices – of the CIA and US Military Intelligence [39-42]. 2.2 Resilience By the 1990s, references to the DDD neurosis had disappeared – reflecting the declining popularity of psychoanalytic models and language as much as anything. The neurosis is now forgotten. However, the technology originally associated with the neurosis persists, reincarnated in the US and UK as R2I, ‘resistance to interrogation’, a training procedure used for elite troops [44, 45]. In R2I, soldiers learn about these techniques by being briefly subjected to them. This is the setting for the most recent chapter in the history of this family of war-related transient mental illnesses. But a history with a twist: the current product is less a historically transient mental illness than a transient variety of mental health called ‘resilience’. This novel condition, said to insulate people from forms of violence that now define the political culture of post 9/11 America, is a product of this same culture and ecological niche. Its proponents include Dennis Charney, head of the Anxiety and Mood Disorders Program of the US National Institute of Mental Health. This is a superior kind of resilience, and it occurs naturally in only a minority of people. The hope is to discover its biological source, and then to use this knowledge to fortify resilience in ordinary people, perhaps as prophylaxis or therapy, for the next 9/11 event. The biological basis of resilience is now being explored. The laboratory – the place where the critical chemical agents are being isolated – is the R2I program. And now one may speak, half seriously, of a further evolution, progressing from the DDD neurosis to the R2I program, and (now) from R2I to ‘R2T’, collective resistance to terrorism. 3. Conclusion Diagnostic classifications in psychiatry are historical products. They are shaped by clinical experience and empirical research, but also by factors unrelated to psychiatric medicine. Likewise, classifications are ways of organizing and ameliorating psychological suffering, but they are, in some instances, equally socially sanctioned ways of managing moral confusion and contradictions. The historical record indicates that the various disorders associated

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with psychological trauma – notably posttraumatic stress disorder – are especially well suited for this purpose, especially with respect to war-related conditions. References [1] [2] [3] [4] [5]

[6] [7] [8] [9]

[10] [11] [12] [13]

[14] [15] [16] [17] [18] [19] [20] [21] [22] [23]

American Psychiatric Association, ed. Diagnostic and Statistical Manual of the American Psychiatric Association, Third Edition (Washington, D.C. 1994). I. Hacking, The Social Construction of What? (Cambridge, Mass.1999). I. Hacking, Mad Travelers: Reflections on the Reality of Transient Mental Illnesses. (Charlottesville, Virginia 1998) pp.51-102. Hacking1999 loc. cit. J.S. Bybee, ‘Memorandum for Alberto R. Gonzales, Counsel to the President: Re: Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340-2340A’ Office of the Legal Counsel, U.S. Department of Justice (Washington, D.C. 1 August 2002). [www.washingtonpost.com/wpsrv/nation/documents/dojinterrogationmemo20020801.pdf] S. M. Hersh, ‘Chain of command: how the Department of Defense mishandled the disaster at Abu Ghraib’, New Yorker (17 May 2004). M. Danner, ‘Abu Ghraib: the hidden story’, New York Review of Books (7 October 2004). American Psychiatric Association, loc. cit., pp.427-429. A. Young, ‘When traumatic memory was a problem: On the historical antecedents of PTSD, in J. Rosen, ed., Posttraumatic Stress Disorder: Issues and Controversies (London 2004), pp.127-146. R.J. Lifton, Life in Death, Survivors of Hiroshima (New York 1967). R.J. Lifton, L. Farber, W. Phillips, R. Sennet, I. Kovel, A. Egendorf , ‘Questions of guilt’, 34 Partisan Review (1972), pp.514-530. R.J. Lifton, Home from the War: Vietnam Veterans, Neither Victims nor Executioners (New York 1973). R.J. Lifton, ‘Looking into the abyss: bearing witness to My Lai and Vietnam’, in D.L. Anderson, ed., Facing My Lai: Moving beyond the Massacre. (Lawrence, Kansas 1998) pp.19-25. E. Canetti, Crowds and Power (New York: 1973). W.J. Scott, The Politics of Readjustment: Vietnam Veterans Since the War (New York 1993). D. Jackson, ‘Confessions of “The Winter Soldiers”’, Life (9 July 1971) pp.23-27. American Veterans Against the War, ed. The Winter Soldier Investigation: An Inquiry into American War Crimes (Boston, 1972). S. Haley, ‘When the patient reports atrocities: specific treatment considerations of the Vietnam veteran’, 30 American Journal of Psychiatry (1974) pp.191-196. R.S. Laufer, M.S. Gallops, E. Frey-Wouters, ‘Stress and trauma: the Vietnam veteran experience, 25 Journal of Health and Social Behavior (1985) pp.65-85. I. Derluyn, E. Brockaert, G. Schuyten, F. Temmerman, ‘Post-traumatic stress in former Ugandan child soldiers, 363 Lancet (2004), p.1646. I. Derluyn, E. Brockaert, G. Schuyten, F. Temmerman, ‘Authors’ reply’, 363 Lancet (2004), pp.1646-1647. S. McKay, ‘Post-traumatic stress in former Ugandan child soldiers’, 363 Lancet (2004), pp.1646-1648. I. Cohn and G.S. Goodwin-Gill, Child Soldiers: The Role of Children in Armed Conflict (Oxford 1994).


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[24] D. Foster, ‘The Truth and Reconciliation Commission and understanding perpetrators’, 30 South African Journal of Psychology (2000), pp.2-9. [25] L.J. Nicholas and L. Coleridge, ‘Expert witness testimony and the criminal trial of Eugene de Kock: a critique of the Posttraumatic Stress Disorder Defence’, 30 South African Journal of Psychology (2000), pp.33-36. [26] L. Nicholas, ‘Psychological testimony during the amnesty application of Jeffrey Theodore Benzien’, 30 South African Journal of Psychology (2000), pp.53-55. [27] R.J. Lifton, ‘Doctors and torture’, 351 New England Journal of Medicine (2004), pp.415-416. [28] R.J. Lifton, ‘Conditions of atrocity’, Nation (31 May 2004). [29] S.H. Miles, ‘Abu Ghraib: its legacy for military medicine, 364 Lancet (2004), pp.725729. [30] R.A. Bauer, ‘Brainwashing: psychology or demonology?’, 13 Journal of Social Issues (1957), pp.41-47. [31] J.G. Miller, ‘Brainwashing: present and future’, 13 Journal of Social Issues (1957), pp.48-55. [32] E.H. Schein, ‘Epilogue: Something new in history?’, 13 Journal of Social Issues (1957), pp.56-61. [33] L.E. Hinkle and H.C. Wolff, ‘Communist interrogation and indoctrination of “Enemies of the State”’, 76 Archives of Neurology and Psychiatry (1956), pp.115-174. [34] A. Biderman, ‘Social-psychological needs and “involuntary” behaviour as illustrated by compliance in interrogation’, 23 Sociometry (1960), pp.120-147. [35] Group for the Advancement of Psychiatry, ed., Methods of Forceful Indoctrination: Observations and Interviews, Symposium Number 4 (New York 1957), pp.233-298. [36] I.E. Farber, H. Harlow, L.J. West, ‘Brainwashing, conditioning, and DDD (Debility, Dependency, and Dread)’, 20 Sociometry (1957), pp.271-285. [37] Central Intelligence Agency, ed., KUBARK Counterintelligence Interrogation (Langley, Virginia 1963), pp.61-119. [www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB122] [38] Central Intelligence Agency, ed., Human Resources Exploitation Manual (Langley, Virginia 1983), pp.K-1 to K-15. [39] Department of the Army, ed., U.S. Army Field Manual 34-52 (Washington, D.C. 1987), appendix H. [www.globalsecurity.org/intell/library/policy/army/fm/fm3452/app-h.htm] [40] V. Dodd, ‘Torture by the book: the pattern of abuse of Iraqi prisoners follows established CIA interrogation techniques’, Guardian (London 6 May 2004). 6. [41] Hersh, loc. cit. [42] M. Danner, loc. cit. [43] D. Leigh, ‘UK forces taught torture methods’, Guardian (8 May 2004). [44] D. Charney, ‘The neurobiology of traumatic stress and resilience’, Keynote address to participants at the Conference on Posttraumatic Stress Disorder: Biological, Clinical, and Cultural Approaches to Trauma’s Effects (University of California at Los Angeles 3 December 2002). [45] D. Charney, ‘Psychobiological mechanisms of resilience and vulnerability: implications for successful adaptation to extreme stress, 161 American Journal of Psychiatry (2004), pp.195-216.

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Researching War Victimization through the Deconstruction of Organized Crime Biljana SIMEUNOVIĆ-PATIĆ* Vesna NIKOLIĆ-RISTANOVIĆ** Abstract. There are many indications that various aspects and factors of large-scale war victimization could be made visible through the collection and analysis of data on organized crime in post-conflict societies. War victimization could be understood as an outcome of opportunistic criminal activity: war conditions offer a unique opportunity to criminals and criminal groups (especially those involved in military or paramilitary formations) not only to restrain their destructive personal potential, but also to attain a new identity as ‘national heroes’ and to gain a significantly better economic position through advantageous ‘investments’ in post-war criminal business. Crimes in war as well as war crimes, often perceived as basically launched by nationalistic (‘blood and belonging’) ideology, could be examined in a broader hypothetical framework: nationalist ideologies should be considered not only as the motivation but also as the means. By identifying themselves primarily as members of a specific nation who ‘defend’ (or victimize) a specific ethnic group, criminals of war provide not only the legitimization of crimes against other nations/ethnic groups, but also of crimes against (primarily political) opponents within their own ethnic group. The main aim of this paper is to argue for the research of the continuity of organized criminal activity before, during and after ethnic conflicts in the former Yugoslavia. This kind of research is argued to be a promising tool for the assessment of links between war and organized crime victimization as a way of gaining a more comprehensive picture of the recent past. Research findings may further be used as the basis for the creation of comprehensive regional security strategies.

Introduction A recently developed ‘three-level framework for understanding the origins of internal wars’ [1], suggests that an examination of three broad areas is necessary in order to provide a more complete understanding of extreme inter-ethnic violence. According to Jackson, these three areas include the structural determinants of conflict, the processes of elite decisionmaking in times of conflict, and the conflict discourses deliberately constructed by ‘conflict entrepreneurs’1 [2] [3]. Recognizing the weak states, weak state elite strategies, and conflict discourses and the construction of internal war as the three levels/basic domains of conflict generation, Jackson offered the promising model of a comprehensive approach toward a specific constellation of factors that determine the conflict occurrence and its subsequent forms. In this paper, it is assumed that the conflict which occurred in the territory of the former Yugoslavia in the 1990s should be observed closely in the light of Jackson’s explanatory model. However, here the model is not used from the point of view of the causal elabora*

Researcher, Institute for Criminological and Sociological Research, Belgrade. Professor, Faculty of Defectology, University of Belgrade.

**

B. Simeunović-Patić and V. Nikolić-Ristanović / Researching War Victimization

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tion of this conflict. Instead, it is used as a plain sketch of possible key conflict agents, structural pressures and adaptive strategies in terms of ‘push’ and ‘pull’ factors toward large-scale victimization. By using the ‘three-level framework for understanding internal wars’ as our starting point, we will analyze the connection between war and post-war crime/victimization in the former Yugoslavia in general, and in Serbia in particular, and argue in favour of research into the continuity of war and post-war crime. In other words, we assume that a connection between the strategies of the weak state elites before and during the war, war victimization and post-war organized crime, may be established. Finally, we assume that nationalistic narratives were used not only for the purpose of reviving ‘old ethnic fears’ or ‘old national dreams’ before and during the wars, but also as a manipulative device for masking the war and post-war economic and political agendas of ‘conflict entrepreneurs’ and war profiteers. Thus, the main aim of this paper is to argue in favour of research into the continuity of organized criminal activity before, during and after the ethnic conflict in the former Yugoslavia. This kind of research is argued to be a promising tool for the assessment of links between war and organized crime victimization as a way of gaining a more comprehensive picture of the recent past. Research findings may further be used as the basis for the creation of comprehensive regional security strategies. 1. Dismantling of former Yugoslavia, weak states and political elites’ strategies The ethnicities that composed the former Yugoslav community had different backgrounds historically and culturally, with substantive experience of inter-ethnic tensions and past conflicts. The first Yugoslavia (the ‘Kingdom of Serbs, Croats and Slovenes’) appeared as a multi-ethnic community in 1918, and comprised the nations that had fought on different sides in the First World War. The clash between the inclusive tendencies of the Serbian Crown and the exclusive tendencies of the non-Serbian ethnic groups characterized the first Yugoslavia in a striking manner from the very beginning, reaching a climax with the assassination of King Alexander in Marseilles in 1934 [4]. World War II brought another sweep of inter-ethnic conflict in the territory of the former Yugoslavia. Nevertheless, following the Second World War, the second Yugoslavia (the ‘Socialistic Federal Republic of Yugoslavia’) came into being. For several further decades the country was ruled by the Communist Party, which imposed the single-party stateorganizational model and the national program, proclaimed through the slogan ’fraternity and unity’. Until the middle of the 1970s, the ethnicities that composed the Yugoslav community had formally enjoyed political and cultural equality as constituent nations, but without the republics having strictly defined autonomy. Although aspirations towards separation existed on the side of non-Serbian ethnicities for many years before the final dismantling of the SFR Yugoslavia, the Yugoslav Communist Party had been managing to maintain control over them for a long time. However, during the last years of Josip Broz Tito’s rule, pressures for political changes increased significantly: as an outcome, the new Constitution adopted in 1974 defined the six constituent republics as autonomous entities, introducing a new rise in the concept of nation states. At the same time, the strategy of ‘real socialism’ faced a crisis, while there was no political force willing to undertake the process of democratic transformation, or capable of doing so [5]. As Golubović pointed out, under the pressure of growing economic and political strain during the 1980s, the former Yugoslavia was turned into a ‘fragile co-federation incapable of controlling and directing the growing aspirations toward national liberation, stimulating separation and causing dissolution of the Yugoslav state’ [6]. Bearing in mind that during the existence of the former Yugoslavia, large numbers of people from different ethnic groups lived within others’ ‘national’ territory; calls for separation was often interpreted as a threat so the dissolution of the former Yugoslavia opened

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the terrain for the revival of fears as well as ‘ancient national dreams’ [7]. The national parties became the ruling ones in all former Yugoslav republics, introducing themselves as a ‘democratic alternative’ to the former authoritarian state. Under the conditions of economic crisis all the republics had a feeling of being threatened by the others, which was interpreted primarily in terms of ‘economic injustice’ [8]. Messages about the ‘necessity’ of dismantling the former Yugoslavia were circulated constantly throughout the 1980s by almost all national political elites. Similar to the former Yugoslavia at the end of the 1980s, the majority of the newly established national states at the beginning of the 1990s suffered from many weak state symptoms: unconsolidated democracy, unstable politics, social tensions, a high centralization of power in ruling elites, heavy debts, low growth rates, high inflation and unemployment, low levels of investment and vulnerability to international actors and forces. Underdeveloped or affected institutional capacity resulted in chronic social under-regulation, which was at the same time the cause and consequence of economic crisis. Normally, the structural characteristics of weak states place constant and huge pressure on ruling elites, increasingly restricting their choices in decision-making processes [9]. As an outcome, weak state politics are turned into a continual, day-to-day process of crisis management and the search for accessible survival options [10]. From Jackson’s point of view, some of these survival options can lead toward conflict more or less directly: ‘In the first and most extreme case, weak state rulers (and their rivals) see great benefits in the creation and maintenance of ‘war economies’… At the less extreme end of the scale, internal conflict may be the inadvertent result of nonetheless risky strategies by elites to hold onto power, or establish hegemony, and manage political demands. Pursuing exclusionary politics, the indiscriminate use of state coercion on civilian populations, unleashing ethnic chauvinism, or manipulating multiparty elections are all high-risk strategies that can create the conditions where war is likely’ [11]. In the case of the former Yugoslavia, the nationalistic discourses themselves might be seen not only as a device purposely used to gain wide mobilization for the realization of ‘national projects’, but also as one of the most promising survival strategies of new political regimes at the end of the 1980s and beginning of the 1990s. 2. Conflict discourses: nationalistic themes and identification of the ‘evil other’ As Jackson has pointed out, there are too many states which possess both weak state structures and forms of weak state politics and have not yet experienced internal war or any large-scale political violence: the key factor in the occurrence of war is the construction of a war discourse which makes existing anti-war discourses invisible and ‘destroys sites of opposition, and then replaces them with a new rhetoric of hatred, fear, and the justified use of extreme violence’ [12]. The nationalistic discourse that reorganizes collective norms, revives collective memories and a sense of ‘being a victim’ and grievances, designating at the same time the evil ‘other’ as the enemy, tends to be a complete formula for social reorganisation: ‘Churches and other religious actors may be used to give religious elaboration of message and values, schools will teach a particular version of history, historical myths will be appropriated into popular television programs, musicians will write and perform patriotic songs, academic studies will ‘prove’ the authenticity of political statements or programs, and the media will sanitize or slant its reporting’ [13]. Along with the collective identity formation/reconstruction, a very general consensus on ‘national issues’ must be enforced while ‘unaware’, ‘unpatriotic’ (‘immoral’) social agents have to be replaced with ‘nationally aware’ and ‘patriotic’ (‘socially adequate’) ones. The construction of partial reality is an inevitable part of the discourse of war since it serves to justify the war, i.e. it is intended to convince people of the ‘just’ cause of the war they are being called upon to fight [14]. The agents of war construction are ‘conflict entre-


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preneurs’ – those actors who deliberately manipulate the thoughts and feelings of people in order to motivate the escalation of violence [15]. The emotion that most efficiently destroys ethnic relations is fear – fear of (re-)victimization, assimilation or domination – and is largely based on memories of past atrocities. Just one step from fear is aggression, hate and the legitimization of the violence of self-defence. At both a socio-cultural and individual level, ethical norms regarding the killing are at first reshaped and relaxed, and subsequently increasingly replaced by a belief in just, legitimate violence. The relativization of norms regarding violence is a rather easy project: the strong foundation for the legitimization of violence already exists in almost all societies, through doctrines of a ‘just war’[16]2 and the justified use of revolutionary and defensive violence: if needed to ‘correct an historical injustice’, to ‘prevent past atrocities happening again’, or to punish an ‘evil’ ethnic group which remained ‘unpunished’ in previous conflicts, violence increasingly appears as acceptable and inevitable [17]. The former Yugoslavia has a history of wars of national liberation, with people from different ethnic groups waging wars against each other. The region also has a history of denials and multiple truths (each ethnic group passing its own truth from generation to generation) as well as a history of exploitation of (their own people's) victimization. The implications of the lack of any attempt to arrive at a single (common) truth and reconciliation have been so obvious in recent wars where past and present ‘truths’ were so interlaced that, as Ignatieff put it, ‘reporters in the Balkan wars often observed that when told atrocity stories they were occasionally uncertain whether these stories had occurred yesterday or in 1941, or 1841, or 1441’ [18]. The main danger, however, lies in the fact that these multiple (one sided, partial, which see only their own victims) truths may be best described as ‘ghosts in the bottle’, who can always be taken out and used for the manipulation of national sentiments and the provocation of wars. The ‘sense of victim’ revival within the ethnic groups who lived together in the former Yugoslavia was not an elemental process, but rather purposely inducted and manipulated by the key political actors. The history of multiple (mutual) denials of crimes and sufferings is obviously a necessary precondition for the exploitation of victimization, i.e. for periodical reviving and manipulation of national sentiments. Thus, it is not unusual that it was used as such again in the 1990s when, as Blagojević [19] put it, most of the people were not ready to deliberately cause suffering to others, so it was necessary to prepare the war by justifying the victimization of others as ‘defence’, as a ‘just cause’ and as ‘inevitable’. This was only possible by identifying the other as different, as dangerously different, so that his/her suffering became acceptable since this other became a source of fear for one's own security. By identifying the other as ‘dangerous’, the authorities managed to convince the majority of people that the war was as inevitable as defence. This was achieved in all parts of the former Yugoslavia in an almost identical way - through public discourse, used by media, including what Blagojević [20] calls ‘latent narratives about the victimization of people of one's own ethnic group’ or ‘an ideology of victimization’ [21]. In Serbia, for instance, the official press started to run stories about the devastation of orthodox monasteries and the expulsion of Serbian families from Kosovo, as well as to revive memories of the ‘Ustasha’ regime from World War II which appeared to be reincarnated in the declarations and symbols of the new Croatian government. At the same time in Croatia and Slovenia, the press published pictures of thousands of Slovene and Croatian victims of partisan reprisals from the Second World War.3 Nataša Kandić, a sociologist who analyzed the writings of the Serbian dailies Borba and Politika as well as the Croatian daily Vjesnik from 1 July 1991 to 15 January 1992, concluded that, ‘most newspapers wrote only about the crimes committed over one nation’, and that many journalists on both sides could be placed in the category of ‘media criminals’ [22].

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An understanding of the ideology of victimization as a powerful means of distorting the truth and making further use of this ‘rump truth’ for producing fear and real victimization, i.e. the promotion of hatred and war, is extremely important for understanding the postconflict situation and the importance of restorative justice in all parts of the former Yugoslavia [23]. 3. Early wartime strategies The early wartime strategies in the states, which appeared at the time of the breakdown of the former Yugoslavia, were focused mainly on gaining operational efficiency in the battlefield, supplying a war economy and sustaining internal hegemony and the ‘national course’. Many sources have indicated that the realization of these demanding tasks sometimes lead to tough co-operation with the ‘nationally aware’ and the well-experienced criminal underworld. It is widely believed that, during the Tito era, an alliance was forged between the former Yugoslav intelligence agencies and the criminal underworld [24]. Namely, the criminals used to serve as an instrument of political control under contract to assassinate political dissidents abroad, receiving in return impunity for their crimes. There are also many indicators that these old connections with the underworld were well exploited by the political elites after the wars had started. Many of those in the underworld and many well-trained agents contributed to early wartime efforts by forming paramilitary groups that were supposed to be closely connected with government agencies in Belgrade, Zagreb and Sarajevo [25]. The political economy during the war became increasingly criminalized. In the first place, organized crime appeared in the areas directly or indirectly affected by war because the war created various needs which could be satisfied by organized crime rather than by legal means [26]. However, illegal financial transactions and the smuggling of arms, fuel, tobacco, alcohol, and scarce goods became integral to the war effort [27]. The ruling elite financed their political and military activities in this way and secured economic survival during the war and/or international economic sanctions. Many military and civilian officials on all sides became war profiteers, often co-operating across ethnic lines, widely exploiting the conflict and displacing legitimate economic activity: the result was a widespread shadow economy (smuggling of consumer goods, corruption) and black market activity (organized trafficking of drugs, arms, people, etc.) [28]. The international embargoes that had been imposed in order to stop ethnic wars were unsuccessful or even counter-productive. First, they could not stop the arms shipments to any of the sides involved in the conflict: the arms were supplied relatively easily through the regional smuggling routes, with the assistance of the large ethnic diasporas and other international sources [29]. Secondly, the embargoes ‘created a dependency on criminal operations within each ethnic community because of the need to arrange cross-border transactions to obtain weapons, fuel and other commodities; the result was to cement the bond between each state security apparatus and the criminal underworld’ [30]. The possible final result might have been economic and military power in the hands of organized crime, sometimes even stronger than state power, as well as a symbiotic relationship between the state security apparatus and the criminal underworld. As a consequence, this ‘monster creation’ produces political instability, insecurity and further victimization, and prevents reforms and the prospect of democracy in the post-war period. 4. Further conflict developments: opportunities, adaptation and large-scale victimization Typically, an ethnic conflict, once it has started and escalated into violence and revenge, is difficult to stop. Uncontrolled psychopaths, opportunistic criminals and desensitized ‘ordi-


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nary men’ in military or paramilitary uniforms, strongly affected (or impressed) by wartime experience, are all direct causes of large-scale victimization in war-affected areas. Civilians were targets of military action as well as deliberate and arbitrary murders, assaults, sexual violence and pillage [31]. The odious paramilitary forces from all ethnicities involved in the conflict were recruited from street gangs, obsessed soccer fans, criminals and alcoholics: some of them came to battle directly after serving time [32]. Members of such paramilitary forces are often considered to be responsible for committing many of the worst atrocities during the war waged in the territory of the former Yugoslavia in the 1990s [33]. For many of the warriors, uniforms and weapons meant both power and a license for committing crimes: everything was allowed in the name of ‘national liberation’ [34]. However, besides the motivation of the ‘national heroes’ and opportunistic criminals how to ‘express’ their attitudes, there might also be some additional factors which contributed to the more or less controlled development of the conflict. War profiteering of any kind is apparently one of them. While the economic role at the beginning of a conflict is typically hidden and indirect, the economic factors and the key actors’ motivations can certainly influence the nature, duration and development of war in many different ways [35]. Normally, the economy plays a key role in sustaining the capacity to wage war and therefore also in decision-making on the sides involved [36]. In the case of weak states involved in war, sustaining the capacity to wage war may depend to a large extent on the war economy. A war economy could be seen as ‘an alternative economic system in which production and distribution depend on violence’ [37], influenced primarily by the illegal economic activities of those in a position to exploit the weakness of the state at war, but also by the activities of warlords and combatants in the war-affected areas. It should be considered that there were many members of the political and economic elite who derived huge benefits from illegal economic activities exploiting the weakness of the states waging wars in the territory of the former Yugoslavia in the 1990s, as well as those who derived significant economic benefits from direct control over the territories they occupied/defended. Besides many ‘weekend warriors’ who occasionally joined the war, mainly in order to rob and pillage, and volunteers who enjoyed ‘priority in looting’ [38], there were numerous local warlords on each ethnic side controlling the smuggling of goods and the most profitable jobs within their territory. It is well known that some local gangs prospered by manipulating the humanitarian aid, while at the same time using the refugees as human shields for protecting acquired property [39]. It has also been documented that, in some areas, people who wanted to leave towns under siege had to pay enormous amounts of foreign currency which used to be shared among soldiers of all ethnic groups involved in the conflict [40]. Sometimes, gangsters organized ethnic cleansing instrumentally, ‘in order to accumulate vast fortunes from looting and from taking over industries that were part of the war economy. They prolonged the war in order to maximize their profits’ [41]. War profiteering drives affecting the war actor hierarchy from the top to the bottom should be identified as one of the generators of war which sustained and prolonged the victimization of many kinds of civilians. Violence might be used as a means to an economic end, becoming ‘the continuation of economics with other means’ [42]. As noted by Hubert, ‘the motivation for fighting can easily change over the course of the conflict. While the origins or root causes of war may in fact lie in some genuine sense of grievance, over the course of the conflict greed can become a more prominent motivating factor. It is not difficult to envisage the process through which a transition from collective political objectives to elite private objectives occurs’ [43].

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5. Example of Serbia: agents, strategies and bystanders The ruling elite of Milošević’s regime opted for the ‘politics of survival’ from the very beginning: the regime experienced a series of strong political and economic crises within the first three years of the 1990s. Serbian voters were strongly polarized. For instance, in the parliamentary elections in 1990, 1992 and 1993, Milošević’s Socialist Party of Serbia gained 46.1, 28.8 and 36.7 per cent of votes respectively [44]. The nationalistic discourse was chosen as a promising strategy by which to discredit the voices of Serbian opposition and the intellectual elite who demanded political changes ‘in the state of external security threats’. The ‘theory of international conspiracy against the Serbs’ was a device used: according to the results of one empirical study carried out in 1993, about 80 per cent of Serbian citizens were completely or partially convinced that ‘there is wide, well-organized conspiracy of many countries against the Serbs’ [45]. However, as Antonić justly pointed out: ‘the main ideological patterns of the Serbian state elite were nationalism and socialistic populism. However, it should be stated that these two were not the basis of the value structure of Milošević’s elite. Nationalism and social populism were just, in that very time, opted as useful in widening and securing the power. That is why they were used’ [46]. One empirical research carried out in Serbia in 1993 showed the rapid growth of nationalism and animosity towards the other Yugoslav nations [47]. Nationalism as an exclusive, aggressive and militant attitude was imposed from above, first by the political elites, and subsequently also by some representatives from the cultural/intellectual elite. As Golubović pointed out, ‘lust for power stayed behind the intentions of the former, while the latter was led by an imagined national missionary role, which national intelligentsia had always pretended to play among Slavs’ [48]. Despite complete control over the media and brutal nationalistic propaganda, only half of the reservists in Serbia,4 and only about 10 per cent in Belgrade, obeyed orders to report for military duty [49] [50]. Thus, the approach to the war had to be reshaped. There are many indications that part of the solution was found in tolerance or even recruitment of units of underworld, opportunistic criminals [51].5 In exchange, they got impunity for crimes and opportunities for lucrative petrol, cigarettes and other commodity concessions within the war-affected areas they controlled, as well as in Serbia itself. Many of them were promoted as ‘national heroes’ and ‘successful businessmen’ at the same time. One example of these was Željko Ražnatović (‘Arkan’), a man with a substantial criminal background and leader of the notorious paramilitary unit called the ‘Tigers’: a few years ago, his wealth was estimated at three hundred million US Dollars.6 At the same time, Serbia was experiencing an increasing economic crisis which took the form of hyper-inflation, a sharp decrease in production and rising unemployment rates. Support for the war and internal control had cost too much and called for new adaptive strategies. This included manipulation of the monetary system [52] and the stripping of assets from state-owned property [53]. Political supporters of the ruling elite were given official positions and government concessions that made it possible to avoid customs duties. While the regime’s supporters grew richer, the mutual impact of the economic collapse, hyper-inflation and international sanctions greatly impoverished the vast majority of the Serbian population. For the political and new economic elite, the discourse of nationalism and conflict was a highly profitable investment. On the other side, the discourse imposed control over the moral judgment and ‘patriotic feelings’ (social adequacy) of the vast majority of citizens. Even those who had never endorsed conflict in order to bring about the dissolution of the former Yugoslavia were confused and demoralized. Those Serbian citizens who were not directly involved in the wars either as perpetrators or victims, and who came under Staub’s


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notion of ‘bystanders’ [54]7, faced the chronic failure of Milošević’s overthrow, deep economic and social deprivation and fear of internal and external security threats. Furthermore, they experienced indistinctive blaming massages from the international community and an international economic embargo that affected only them, and not the political elite. Finally, bystanders were faced with the arrival of hundreds of thousands of Serbian refugees from the other former Yugoslav republics, indicating that ‘ethnic cleansing’ might be punished selectively by the international community (as the political elite had already ‘warned’). As an outcome of the interlaced feelings and messages, day-to-day struggle for minimal existence and chronic insecurity, some kind of ‘learned helplessness’ became the prevailing pattern of social attitude in Serbia during the 1990s [55], with conformity and denial (dissociation) as the widespread mechanism for coping with the situation [56].

6. Post-conflict period: ‘conflict entrepreneurs’ and organized crime The war economy, war profiteering and the exploitation of weaker states gave an outstanding rise in financial power to political elites, their supporters and high-ranking members of (para-)military forces. At the same time, informal resistance networks that extended to intelligence agencies, military establishments, and police services resulted in a high degree of impunity for those who committed crimes during the wars. In Serbia today, these largely informal power structures retain both the motivation and means by which to obstruct the process of democratic consolidation. Political crimes, including politically motivated murders and terrorism, introduced an era of high political instability and internal security treats. Among those accused of inciting the cruellest political murders are high-ranking intelligence officers who were on duty during Milošević’s regime.8 According to the results of recent research on the media’s construction of organized crime, the mass media in Serbia today reflect a real conflict of interests which exists on different levels. According to this research, the media’s image of organized crime in Serbia after the assassination of the Prime Minister clearly suggests a continuity between war crimes committed during Milošević’s regime and present-day organized crime. Moreover, it also suggests close links between organized crime and the political opponents of the new regime and, as a consequence, its increasing activities to destabilise the country and bring back the old political elite [57]. The assassination of the Serbian Prime Minister has revealed that, even after October 2000, the Serbian State Security Service had employees who were suspected of war crimes and had connections with organized crime.9 Both these old structures and former remnants of the political elite (‘conflict entrepreneurs’) are actively obstructing institutional reform, democratization, the fight against corruption, organized crime and co-operation with the Tribunal for war crimes committed in the former Yugoslavia. Dealing with the war crimes committed in their name is still a risky option for both the Serbian Government and ordinary citizens. Just a month before the assassination of Serbian Prime Minister Zoran Djindjić, Milorad Luković ‘Legija’ - a man later accused as being the leader of a conspiracy of which that terrorist act was part - wrote an open letter in which he represented himself as a devoted patriot who ‘demonstrated and proved his patriotism countless times’, accused the political leadership of ‘humiliating the state’ by co-operating with the Tribunal for war crimes committed in the former Yugoslavia and warned the political leaders that ‘history shall never forget them’.10 However, bitterness and fear of organized crime and terrorism practiced by ‘patriotic forces’ have facilitated the process of resolving inner cognitive and emotional conflicts for those Serbs who had for a long time been exposed to manipulation by ‘conflict entrepreneurs’ justifying themselves on the basis of patriotism and the defence of a people whose

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survival is threatened. The assassination of the Serbian Prime Minister clearly demonstrated the extent of the unlimited process of designating the ‘other’. In terms of emotions, and fear in particular, it has been demonstrated that those people who have the power to hurt others are also likely to hurt you, sooner or later. This should be one of the possible paths toward activating those sections of the population that come under Staub’s notion of ‘bystanders’.11 In terms of moral insight and reasoning, politically motivated violence may contribute to the unmasking of manipulative strategies for legitimizing crimes committed during the wars,12 since the victims of domestic organized or political crime, as Gordy has noted recently, ‘are not considered to be outside of the moral universe… to the degree that war criminals are recognized as those falling in the same category as other criminals, support for their prosecution and punishment is likely to be stronger’ [58]. 7. Conclusion: towards research on the continuity of war and post-war crime/victimization As shown in this paper, research on the continuity of war and post-war crime may be useful for understanding large-scale victimization in the former Yugoslavia as well as for the creation of effective strategies for the prevention of the future security risks in the region. Revealing the connections between structural pressures within weak states, dictatorships’ strategies, the discourse of nationalism and war, war crimes and post-war organized crime and new state structures, should also be the first step towards re-building a common ‘moral universe’ throughout the region. Unmasking war criminals and war profiteers involved in ‘patriotic projects’, as well as those who tolerated or (mis-)used them, might finally resolve the long-standing internal emotional conflict of millions of bystanders. It is important to recognize the role that these same criminal groups had, both in ethnic conflicts in the territory of the former Yugoslavia and in political murders in Serbia, but also in the survival of the Serbian population during the economic sanctions and isolation of the country. It is also important to bear in mind that economic sanctions led to the over-criminalization of the Serbian population in the 1990s, when the majority of people were forced to turn to illegal ways of earning a living in order to survive [59]. A significant part of this meant that they had some, at least peripheral, connections with (organized) criminal businesses. The boundaries between legal and illegal are still vague for many people in Serbia. This, of course, needs to be taken into account in possible future research. Recent crimes, such as the assassination of the Serbian Prime Minister and murders of prosecution witnesses for related trials, may be understood as organized crime’s reaction or resistance to social change. The symbiotic relationship between the state and organized crime would be the major challenge for any government, since the real struggle against organized crime would be that which would risk ‘unmasking and debunking’ [60] this symbiosis as well as the political conflict behind it [61]. However, this is exactly where the research we are proposing in this paper could contribute most. Apart from providing the Government with arguments for taking a decisive position on war and organized crime by making the connection between war and post-war victimization more visible, it could also help people to overcome denial and acknowledge the suffering of all involved. Accordingly, after coming to terms with the process behind the war and postwar victimization, they might be sufficiently empowered to participate more in the building of their own future and democracy. Together with prosecuting and punishing those responsible for war crimes, such a process might finally put an end to the cycle of impunity in this part of Europe, thus tracing a new era of positive reciprocity.


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Notes 1

The ’conflict entrepreneurs’ concept has been launched by Espen Barth Eide (1997, 1998). According to Eide, a conflict entrepreneur as ‘... an individual who takes the necessary and deliberate steps to ignite a violent conflict by utilizing a specific situation or in order to gain something through the exploitation of new power relationships’ [E.B. Eide, 1998, quoted by K. Friis, ‘From Liminars to Others: Securitization Though Myths’, 7(2) Peace and Conflict Studies (2000) p.12]. In this paper, the notion of ‘conflict entrepreneurs’ is used to designate those agents who ‘purposefully attempt to manipulate the thoughts and feelings of people to create conflict and motivate violence’ [R. Jackson, p.13]. 2 As observed by Walzer (1992, XI), just-war theory (used and misused) has always played a part in official argument about war, since ‘no political leader can send soldiers into battle, asking them to risk their lives and to kill other people, without assuring them that their cause is just – and that of their enemies unjust’. 3 ‘Photographs of caves full of stacked bones flooded the newspapers of both republics giving rise to campaign rhetoric in which these persons, previously referred to in nonnational terms as ‘Nazis’ or ‘quislings’, became ‘Croatian victims’ or ‘Slovene victims’ of communist brutality’ [G. Bowman quoted by R. Jackson, p.18]. 4 Media reported that, ‘during the closed session on September 26, the Serbian Parliament was told that the response to the partial mobilization was very poor: only 50 percent in the whole of Serbia turned up and only 15 percent in Belgrade’ [1-2 Vreme News Digest Agency (September 30, 1991), available at: www.scc.rutgers.edu/serbian_digest/1&2/t11.htm]. 5 The State Security Service was widely considered responsible for existence and strengthening of organized crime in Serbia at the beginning of 1990s. It has been suspected many times in public discourse for inviting prominent underworld bosses to be their associates in the battle for the national interests, involving itself through them in the plundering, war crimes, and war profiteering. As Radovanović has pointed out, ’they enabled every prominent criminal to have a Security Service identity card. A consequence of that was the overlapping of the secret police, the underworld, and the police’ [B. Ristić, ‘Čija ruka upravlja Srbijom?’ (Whose Arms Runs Serbia?), Glas javnosti (November 3, 2002), available at: www_glas-javnosti_co_yu-arhiva.htm]. 6 Glas javnosti (June 18, 2000). 7 The ‘bystanders’ are those people not involved directly in conflict, either as perpetrators or victims. The bystander is ’the individual or collection of individuals, including nations, who witness what is happening’ (E. Staub, 2003, p.4). 8 See: ‘Legija, Čume, kriminal, politika, policija i mediji’ (Legija, Čume, crime, police and media), Vreme (January 7, 2003); ‘Ko su glavni akteri u optužbama oko otmica i ubistava koja su se u Srbiji dogodila u poslednjih desetak godina’ (Who are the main actors in indictments for kidnappings and murders committed in Serbia during last ten years), Blic (February 1, 2003); ‘Rat sa ratnim zločincima’ (War against war criminals), Politika (March 25, 2003). 9 Some members of the police and intelligence service during Milošević’s rule have a long criminal history being also suspected for participating in the wars in the former Yugoslavia. Many of them are notorious for war crimes against civilian population. However, apart from the police and intelligence service members from that time, many of those accused for organized crime in general, and for political murders in particular, were active, sometimes high-ranking members of the police and intelligence service in Djindjić’s Government as well [V. Nikolić-Ristanović, 2004, p.2].

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10

The open letter of Milorad Luković ’Legija’ was published in Belgrade daily Blic (January 28, 2003). [www.blic.co.yu/arhiva/2003-01-28/strane/hronika.htm]. 11 While analyzing the causes of prevailing passiveness of ’bystanders’ - those members of the population who are not directly involved as either perpetrators or victims - Ervin Staub concludes that the reasons should be found in ‘blind patriotism’ which lead to loyalty to the group regardless of the nature of its conduct, or in embeddedness in the group that makes it difficult to oppose its direction [E. Staub, p.497]. Seeking security within the group tends to happen when people face difficult conditions of life in their society with which, as individuals, they cannot cope effectively. These difficult conditions include economic problems, political conflict and disorganization and great and rapid social change [E. Staub, 2003]. 12 As Eric Gordy pointed out, ’one of the dispensations is related to the pretexts which are offered for fighting a war in the first place: a perception that there existed an enemy which, given the opportunity, would have committed the same offenses with which the perpetrators are charged. This rhetorical strategy symbolically places the enemy outside of the moral universe which is affirmed by law, postulating a parallel universe in which moral obligations do not apply’ [E. Gordy, p.4].

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R. Jackson, ’The Social Construction of Internal War: Towards a Framework of Understanding’, Paper presented at ‘Cultures of Violence’, 3rd Global Conference: Diversity within Unity (Prague 2002). [www.inter-disciplinary.net/jackson%20paper.pdf]. R. Jackson, loc. cit., p. 3. K. Friis, ‘From Liminars to Others: Securitization Though Myths’, 7(2) Peace and Conflict Studies (2000) pp.1-16. D. Davidović, ’Reconstruction of Ethnicity in Contemporary Serbia’, 29(2) Sociološki pregled 1995) pp. 225-236. Z. Golubović, ’Implikacije konflikta u bivšoj Jugoslaviji za evropsku sigurnost’ (The Implications of Conflicts in Ex-Yugoslavia for the European Sucurity), 9-10 Filozofija i društvo (1996) pp.319-26. [http://www.instifdt.bg.ac.yu/ifdt/izdanja/casopisi/ ifdt/IX-X/D32/document]. Z. Golubović, loc. cit. Z. Golubović, loc. cit. Z. Golubović, loc. cit., R. Jackson, loc. cit., p.10. R. Jackson, loc. cit., p.10. R. Jackson, loc. cit., p.12. R. Jackson loc. cit., p.12-13. R. Jackson, loc. cit., p.16. S. Brownmiller, Against Our Will (New York 1975). R. Jackson, loc. cit, p.13. M. Walzer, M. Just and Unjust Wars (US: Basic books 1992). R. Jackson, loc. cit, p.19. M. Ignatieff, quoted by M. Minow, Between Vengeance and Forgiveness (Boston 1998) p.14. M. Blagojević, ‘Prebrojavanje mrtvih tela: viktimizacija kao samoostvarujuće proročanstvo’ (Counting dead bodies: victimisation as a self-fulfilling prophecy), 2 Temida (2000) pp.5-11.


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[20] M. Blagojević, loc. cit., p.5-11. [21] V. Nikolić-Ristanović, ‘Possibilities for Restorative Justice in Serbia’ in L. Woldgrave, ed., Positioning Restorative Justice, (Villain Publishers 2003) pp.235-250. [22] N. Stefanović and T. Topić, ’The Catalog of Shame’, 42 Vreme News Digest Agency (July 13 1992) [www.scc.rutgers.edu/serbian_digest/43/t43-10.htm]. [23] V. Nikolić-Ristanović, ‘Possibilities for Restorative Justice in Serbia’, loc. cit. p.241. [24] US Institute of Peace, Lawless Rule versus Rule of Law in the Balkans, 97 Special Report (Washington 2002) p.3. [www.usip.org/pubs/specialreports/sr97.html]. [25] R. Lewis, ‘Drugs, war and crime in the Post-Soviet Balkans’, in: V. Ruggiero, N. South and I. Taylor, eds., The New European Criminology: Crime and Social Order in Europe (London 1998) pp.462-479. [26] V. Nikolić-Ristanović, ’War and Crime in the Former Yugoslavia’, in V. Ruggiero, N. South and I. Taylor, eds., The New European Criminology: Crime and Social Order in Europe (London 1998) pp.462-479. [27] US Institute of Peace, loc. cit., p.6. [28] US Institute of Peace, loc. cit., p.4-6. [29] R. Lewis, loc. cit, p.219. [30] US Institute of Peace, loc. cit., p. 3. [31] V. Nikolić-Ristanović, ’War and Crime in the Former Yugoslavia’, loc. cit., p.464465. [32] V. Nikolić-Ristanović, ’War and Crime in the Former Yugoslavia’, loc. cit, 465. [33] B. Radović, ’Jugoslovenski ratovi 1991-1999 i neke od njihovih društvenih posledica’ (Yugoslav Wars 1991-1999 and Some of their Social Consenquences) in Ž. Špirić, G. Knežević, V. Jović and G. Opačić, eds., Tortura u ratu, posledice i rehabilitacija: Jugoslovensko iskustvo (Beograd 2003) pp.25-68. [www.ian.org.yu/tortura/ srp/pdf/01.pdf]. [34] V. Nikolić-Ristanović, ’War and Crime in the Former Yugoslavia’, loc. cit., p.466. [35] K. Studdard, War Economies in a Regional Context: Overcoming the Challenges of Transformation, IPA Policy Report (New York 2004) p.4. [www.ipacademy.org/ PDF_Reports/WARECONOMIES.pdf]. [36] M. Taylor, quoted by L. Lunde, M. Taylor and A. Huser, Commerce or Crime? Regulating Economies of Conflict, 434 Fafo-report (Oslo 2003) p.11. [37] M. Taylor, ed., Economies of Conflict: The Next Generation of Policy Responses, Fafo-report 436 (Oslo 2004) p.10. [38] R. Ninčić, 11 Vreme News Digest Agency (December 9, 1991) p. 3. [39] J. Mueller, ’The Banality of ’Ethnic War’’, 25(1) International Security (2000) pp.4270. [http://psweb.sbs.ohio-state.edu/faculty/jmueller/is2000.pdf]. [40] V. Nikolić-Ristanović, ’War and Crime in the Former Yugoslavia’, loc. cit., p.466. [41] R. Lewis, loc. cit., p.220. [42] D. Keen, ‘The Economic Functions of Violence in Civil Wars’, 320 Adelphi Paper (1998), quoted by D. Hubert, ‘Resources, greed, and the persistence of violent conflict’ Ploughshares Monitor (June 2000) [www.ploughshares.ca/content/MONITOR/ monj00c.html]. [43] D. Hubert, loc. cit. [44] S. Antonić, Zarobljena zemlja: Srbija za vlade Slobodana Miloševića (A Closed Nation: Serbia under Slobodan Milošević), (Beograd 2002) p.74. [45] S. Antonić, op. cit., p.383. [46] S. Antonić, op. cit, p.364. [47] Z. Golubović, loc. cit.

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[48] Z. Golubović, loc. cit. [49] M. Gleni, Pad Jugoslavije: treći balkanski rat (The Fall of Yugoslavia: the Third Balkan War), (Beograd 1992) p.141. [50] B. Radović, loc. cit., p.42. [51] B. Ristić, ‘Čija ruka upravlja Srbijom?’ (Whose Arms Runs Serbia?), Glas javnosti (November 3, 2002) [www_glas-javnosti_co_yu-arhiva.htm]. [52] US Institute of Peace, loc. cit. p.4. [53] S. Vuković, ’Some Aspects of the Privatization in Serbia’, 29(2) Sociološki pregled (1995) pp.189-204. [54] E. Staub, The Psychology of Good and Evil – Why Children, Adults, and Groups Help and Harm Others (Cambridge 2003). [55] V. Nikolić-Ristanović, Social Change, Gender and Violence: Post-Communist and War-Affected Societies, (Dordrecht 2002) p.11. [56] V. Nikolić-Ristanović and N. Hanak, Od secanja na proslost ka pozitivnoj buducnosti-ideje i misljenja gradjana Srbije (From remembering the past toward positive future – ideas and opinions of citizens of Serbia), (Beograd 2004). [57] V. Nikolić-Ristanović, ‘Organized crime in Serbia – media construction and social reaction’, in G. Meško, M. Pagon and B. Dobovšek, eds., Dilemmas of Contemporary Criminal Justice (Ljubljana 2004) pp.685-695. [58] E. Gordy, ’War crimes, Organized Crime, and Trust in Public Institutions’, Paper presented at the conference ’The Clandestine Political Economy of War and Peace: Insight from the Balkans’ (Providence 2003) p.4. [www.watsoninstitute.org/cland/ Gordy.pdf]. [59] V. Nikolić-Ristanović, ’War and Crime in the Former Yugoslavia’, loc. cit. [60] S. Cohen, Folk Devils and Moral Panics: the Creation of the Mods and Rockers (Oxford 1994) p.204. [61] V. Nikolić-Ristanović, ‘Organized crime in Serbia – media construction and social reaction’, loc. cit., p.694.


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Hate Crimes and their Practical Use in Risk Assessment and Terrorism Prevention Anna-Maria GETOŠ* Abstract. Some of the theories most frequently used to try and explain the appearance and development of political and terrorist violence argue that social deprivation, ethnic discrimination or religious intolerance and suppression, trigger oppressed groups into using political violence, believing that it is the only way to be heard on a political level and to gain more decisionmaking influence. Following this theoretical concept, it seems justified to argue that large-scale victimization, combined with perceived injustice in past conflicts, could potentially be a source of political violence and terrorism in the future. Furthermore, victimization and victim narratives passed on from one generation to the other obviously play a major role, both in interpreting history and in justifying terrorist violence. Yet, is victimization actually one of the root causes of terrorism, or is it just another convenient excuse for practicing violence? Research aimed at answering this question by looking closely at the relevant criminological characteristics of two very similar phenomena, hate crimes and terrorism, could provide highly useful information which would increase our understanding of how ethnic hatred develops and fosters the dilemma of ethnic security, while remaining a constant threat for security, especially in post-conflict societies.

Introduction and research goals A lack of democracy and rule of law, large-scale victimization, unsolved problems of refugees and IDPs (internally displaced persons), social polarization and discrimination based on ethnicity or religion, low self-esteem, feelings of insecurity and mistrust and especially the ethnic security dilemma are some of the typical problems facing post-conflict societies. Post-conflict governments need to implement undoubtedly correct but still unpopular measures (e.g. amnesty laws, return of refugee property, extradition and prosecution of alleged war criminals etc) [1]. By taking such measures, or by not doing so, they often unintentionally offend precisely those groups which could be considered “at risk”, given their built-in potential for radicalization (e.g. war veterans, refugees and IDPs, war victims and their families, radical political parties and their members etc). Post-conflict governments also have ground to make up in economic terms and are undergoing rapid changes, which usually give rise to high levels of uncertainty. In view of all the above, and given the climate of fear, hatred and grievance, it seems obvious that, if left unsolved, these problems will generate new cycles of revenge and violence. In such an environment, ethnic and religious hate crimes could clearly be one of the main risk indicators for polarization, radicalization and the potential threat from terrorism and further large-scale confrontations. Past conflicts have shown that hate crimes based on ethnicity and religion are one of the first and most evident manifestations of ethnic tensions [2]. At the same time hate crimes foster the zero sum game and continuously obstruct the reconciliation process that post-conflict societies so desperately require [3, 4]. The immediate situation in South Eastern Europe, especially in the former Yugoslavia, and other parts *

LL.M., Albert Ludwigs University Freiburg, Germany and Guest Researcher at the Max Planck Institute for Foreign and International Criminal Law, Freiburg i.Br., Germany.

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A.-M. Getoš / Hate Crimes and Their Practical Use in Risk Assessment and Terrorism Prevention

of the world, like Afghanistan, the Caucasus, Iraq or the Middle East, reflects deep-seated hostilities within communities and provides a fertile ground for nationalistic radicalism and religious fanaticism, indicating a real threat to global security and stability [5-7]. Coming from a post-conflict society, and having witnessed the above-mentioned difficulties which together constituted considerable security issues, I wondered how scientific research can assist in finding practical measures for long-term strategies of coping with the consequences of conflict in order to prevent future violence and terrorism in post-conflict societies. The research concept which stemmed from this question contains six major goals: The classification and understanding of hate crimes and terrorism; The design and implementation of a model for the collection of data relating to hate crimes in post-conflict societies; The use of hate crime-related data for risk assessment and a security prognosis; The understanding of the victimological aspect of hate crimes and terrorism and its potential role in causing new cycles of violence; The development of an overall strategic framework for terrorism prevention in postconflict societies; The justification of the proposed preventive strategies by developing and ensuring a continuing evaluation process of preventive measures which have been implemented. The first part of this paper considers the similarities and the differences between the two phenomena of hate crimes and terrorism. This should help to demonstrate the close connection between these two problems and illustrate the approach to terrorism using hate crimerelated research in post-conflict societies. The second part will outline a possible model for hate crime-related data collection using the existing infrastructure in post-conflict societies. This topic is closely connected to the following one, which will focus on the practical application of the collected data and its value in assessing risk and preventing terrorism. 1. Hate Crimes and Terrorism When discussing “war”, “conflict”, “violence”, “hate crimes” or even “terrorism”, all of which are the subject of extensive and highly controversial debate [8], one must be very precise in order to avoid confusion and misleading interpretations. Hate crimes will be defined, therefore, as any act of violence (in a wider meaning, including physical attacks, verbal assault, destruction of property and vandalism) committed on the basis of any physical or cultural characteristic which, in the mind of the offender, separates the victim from themselves [9]. Race, religion, ethnicity and gender or sexual orientation are all potential characteristics which a hate offender could use to generate an “us” versus “them” conflict. Terrorism should be understood as a complex combat tactic (similar to subversion), which combines special psychological warfare, and uses violence aimed at symbolic tactical targets to produce fear in order to achieve a strategic goal. Organizations or states which commit and sponsor terrorist acts do not usually have the means by which to wage a conventional armed attack to achieve their goals, or simply find it more convenient to engage in terrorist activities than risk an open confrontation. Rather than raise further definition issues (interesting views on how to define terrorism and the related typologies can be found in [10-16]), both phenomena, hate crimes as well as terrorism, will be described using their typical characteristics, that at the same time differentiate them from other criminological phenomena. This approach should define the points


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at issue more precisely by stressing the characteristics they have in common, and by illustrating the characteristics which distinguish them. At the same time it will demonstrate the close connection between the two, providing a solid ground for the argument set out below that hate crime related research might greatly impact on our understanding of terrorism. 1.1 Characteristics common to hate crimes and terrorism The following table illustrates the main areas where, and more specifically how, hate crimes and terrorism, as criminological phenomena, overlap in their main characteristics, such as their modus operandi, perpetrator-related issues and the effects they both produce (Table 1). Table 1: Characteristics common to hate crimes and terrorism ▪ calculated use of violence ▪ symbolic meaning of tactical goals Modus Operandi

▪ political agenda as the strategic goal ▪ communication strategy and propaganda ▪ provocation strategy ▪ rational perpetrators ▪ ideology and indoctrination on individual level

Perpetrators

▪ group dynamics and loss of personal responsibility ▪ “us” versus “them” rhetoric and polarized views ▪ self-perception as victims ▪ backed-up or tolerated by own affiliation group ▪ produce feelings of fear and insecurity

Effects

▪ repression often backfires and unifies the group ▪ feelings of mistrust and revenge within victim group

Perpetrators of hate crimes , as well as terrorists, choose their victims/targets in accordance with what they or their characteristics represent. The victim’s individual characteristics are simply irrelevant [17]. The only issue of interest to the perpetrator is the obvious symbolic meaning of the chosen target and its effectiveness in delivering the message to the enemy and to the group to which the perpetrator is affiliated (e.g. black colour of skin, representing the Afro-American community; a mosque or Koran school in the Netherlands, representing the Muslim community; or the WTC and the Pentagon, symbolizing the financial and military power of the USA). For the perpetrators the attack itself is less important than the symbolic message it communicates and the planned impact it achieves – provoking the enemy and intimidating the members of the attacked group, while at the same time triggering sympathy and solidarity among their own group. The perpetrators tend to perceive themselves as victims of some kind of intolerable injustice, whether discrimination on the basis of religion and ethnicity, or a global conspiracy against all mankind, whether it has any basis in reality or is simply the product of victim “myths” and ancient narratives. When it comes to justifying violence they all serve their cause [18]. An exclusive “us” versus “them” attitude, supported by a group of like-minded individuals, and fostered/encouraged with a suitable/fitting ideology, eliminates any feelings of personal responsibility. Once engaged in violent attacks or terrorist activities and integrated into these groups, which usually have harsh internal rules of conduct and brutal sanctions for violations, perpetrators will find it difficult to reintegrate into those civil societies from which they dissociated themselves [19].

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If radical groups also enjoy the sympathy and support of the local population or an even broader audience, not to mention sponsors and interested third parties, security forces find it quite difficult to come up with effective repressive measures to minimize the risk of escalation without limiting essential civil liberties – a frequently used approach that, in the long–term, tends to be counter-productive [20-22]. The effects of hate crimes and terrorist attacks are both calculated and certain, leaving no doubt as to how the victim and the attacked group will feel: helpless, full of fear and anger, yearning for revenge and probably never completely getting over it and never trusting the “enemy group” again. Even if radical groups do not achieve their strategic goals, they manage to present their political agendas and assure that their battle is kept alive by clearing the path for new cycles of violence [23].

1.2 Distinguishing characteristics Despite the fact that the main characteristics of hate crimes and terrorism show remarkable similarities, there still exist evident differences. Nevertheless, this should not be seen as a handicap for in research terms, but rather as a challenge for developing new methods, which could take advantage of such differences by filling the gaps accordingly. For example, the differences in the frequency and intensity of violence provide the possibility of conducting quantitative research into hate crimes. In a way, although the same approach could not be used for terrorism, the knowledge gathered could be applied successfully in the field of terrorism studies. The possibilities for combining the two approaches are at least as numerous as the differences listed below, which all provide interesting research fields (table 2). Table 2: Hate Crimes and terrorism – their distinguishing characteristics Hate Crimes violence more frequent, but less intense

Differing Characteristics frequency and intensity of violence

Terrorism less frequent extremely intense

ad hoc planning often combined with alcohol consumption, vandalism, verbal/physical assault, murder

modus operandi

Well-planed and sophisticated operations with the ability to cause mass casualties

usually small groups with loose connections, seldom (but possible) higher organizational structures

organization

highly organized, logistical and financial support, secrecy, recruits, close internal connections with overall organizational structure

ranging from significantly low to medium, except for unstable societies, where they can trigger reactions

security threat level

very high threat to security on national as well as international level with global implications

minor national or regional police problem

perception by security forces

serious problem for global security affecting police and military forces

low, very sporadic and focused on more violent or shocking events

media attention

extremely high, reaching a broader audience on an international level

The table clearly shows how the distinguishing characteristics tend to increase or decrease proportionally, depending on the harm which hate crimes or terrorist acts are able to inflict on their targets. Simplifying the whole issue, one could argue that the differences between


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hate crimes and terrorism have only a quantitative dimension and that qualitatively speaking, they are a perfect match. Of course such an argument does not take into account the complexity of terrorism and hate crimes or the variety of life. In any case, the similarities have been outlined and the differences shown. The next section contains some useful conclusions, which should justify and further elaborate on the research concept. We will then proceed to the next part, where practical proposals for data collection will be explored.

1.3 Drawing the connection The relevant criminological characteristics of hate crimes and terrorism, important for understanding the development of each of them, are extremely similar, which leads to the conclusion that, by looking closely at the circumstances and mechanisms that make hate crime perpetrators “tick”, it should be possible to gather useful insights into terrorism. In order to do so, however, it is of crucial importance to establish a link between the two, which can be further explored. This can be done by focusing on more specific research questions and concrete geographical regions, which would provide the same preconditions and circumstances for the development of hate crimes, possibly even terrorism. In post-conflict societies the resurgence of hostilities and violence is much more likely than in stable societies with a peaceful and democratic recent history [24]. Furthermore, the “us” versus “them” rhetoric and the polarization within communities in post-conflict societies indicate that the hate crimes committed are directly related to the aftermath of the conflict. This makes it possible to examine the role of large-scale victimization in the process of creating new cycles of violence, whether it serves as a justification mechanism or even as a root cause of hate crimes and terrorism. As the research concept aims at developing preventive policies which should address perceived grievances among the hostile groups in post-conflict societies in order to reduce the potential for the development of terrorism [25], it is necessary to pick a region where there is no terrorist activity as of yet. According to the issues which have just been set out, two conclusions may be drawn: Post-conflict societies offer a unique set of preconditions for the development of new cycles of violence by connecting hate crimes with potential terrorist threats through existing large-scale victimization; Since these are high risk areas for renewed insurgency and possible terrorist developments, the urgency of creating efficient preventive measures designed for the specific needs of post-conflict societies, seems necessary. 2. Model for hate crime-related data collection The model for data collection developed out of a highly practically orientated approach. Therefore it was necessary to take into consideration the actual possibilities and concrete circumstances, as well as the capacity of the existing infrastructure in a specific postconflict region. In this case the post-conflict societies of South Eastern Europe were considered in order to give the whole model a precise shape. They meet the requirements mentioned earlier, concerning existing large-scale victimization, polarization, hostilities within a community and a high potential for the development of terrorist activity. Nevertheless, the model could be adjusted to fit the specific needs of other post-conflict regions as well.

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In addition, it needs to be mentioned that ethnicity and religion are the main criteria for the “us” versus “them” grouping in South Eastern Europe. This fact strongly influenced the choice of relevant criminological data to be collected when using this model. 2.1 What data should be collected? Data collection should focus on the following main points in order be able to produce useful insights into (1) the role of hate crimes as a security threat in general, (2) conflict related hate crimes based on ethnicity, religion or victimization, (3) different types of hate crimes and their characteristics, (4) the characteristics of victims and perpetrators. In particular this means collecting data that shows: The relationship between hate crimes and overall criminality; The number of hate crimes based on ethnicity and religion; Different types of hate crimes and their breakdown, the categories being: - physical assault and murder, - verbal assault, - destruction of property, - vandalism; Modus operandi, locus delicti and tempore delicti; Victim and perpetrator characteristics, especially: - the usual information (known or unknown, age, sex, ethnicity and religion, previous police records, level of education, employment status, town of residence, alcohol or drug abuse at the time of the crime, etc), - information specific to post-conflict societies (victim’s experience in past conflict, military affiliation, PTSD, refugee status, IDP, returned refugee etc); The purpose of damaging the property or the object of vandalism and, in the case of graffiti, the message. 2.2 Who Should Collect the data and how? After considering different possibilities for reliable data collection in the case of South Eastern Europe (for example NGOs, independent research facilities or media analysis, both quantitative and qualitative, etc.) it seems that the optimal solution would be close cooperation between state police forces. Some of the main advantages of such an approach are the following: Police forces are one of the primary sources of data and are operate on a nationwide basis; They are usually the first to arrive at the crime scene and therefore establish the first contact with the victim, providing them with access to information which can be difficult for others to collect at a later stage; They already have experience of violence and hate crimes and, moreover, possess inside knowledge about the community, thereby increasing the chances or probability of correctly classifying an incident as a hate crime; Police forces are clearly structured, centralized and nationwide, which are major issues for the organizational and operational aspect of data collection; Were data being collected in different countries or whole regions, consistency in the approach could be more effectively ensured;


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The process of data collection itself could at the same time have two important preventative consequences: - police forces would become more aware of the significance of hate crimes and their negative long-term effects on feelings of security, inter-ethnic trust and peaceful co-existence, - victims of hate crimes would be taken more seriously, while feelings of trust and security could be restored with a high likelihood of minimizing the ethnic security dilemma, typical of post-conflict societies. The only potential disadvantage of this approach might be the unwillingness of governments to co-operate with external research institutions. However, recent inquiries to the ministries of internal affairs in Croatia and Bosnia-Herzegovina have shown quite the opposite, so this would appear to be a minor concern. The data should be collected using the existing police force infrastructure and available databases. Statistical software or questionnaires should be adjusted to fit the specific circumstances of the country, after it has been approved by the relevant authority, and should be distributed to the lowest organizational units (which would probably be the police stations), where the data would be collected. Additionally, police officers should be asked to answer a short questionnaire, where they could provide their own professional opinion about the estimated number of hate crimes in the past period, and whether it has increased or decreased with time, with special reference to the post-conflict period. 3. Risk assessment and terrorism prevention The practical application of the collected data covers 3 major fields, (1) risk assessment and security prognosis that will in turn provide a solid basis for (2) the development of an overall strategic framework for the prevention of hate crimes and terrorism, and (3) evaluation. 3.1 Risk assessment and security prognosis The biggest obstacle to risk assessment in post-conflict societies still seems to be the severe lack of solid data. Therefore the security prognosis ends up being far too unspecific to be of any use to security forces in trying to come up with preventive strategies or even practicable tactics. In order to foresee and prevent serious security threats like terrorism and hate crimes in post-conflict societies, it is necessary to work out reliable risk indicators [26-28]. Such risk indicators would help to set in place an early warning system and would at the same time show the direction which preventive measures should take [29]. Knowledge of the different types of hate crimes and their geographical distribution, combined with the profiles of perpetrators and specific characteristics of victims, gathered by analyzing the hate crime-related data, could serve as risk indicators. By analyzing hate crime-related data, it would be possible to: Measure trends in social polarization based on ethnicity and religion; Evaluate the reconciliation process and identify the circumstances which obstruct it; Localize high risk areas with increased rates of hate crime and a more violent modus operandi in order to find out whether these areas were affected by past conflicts and victimization, and in this way establish a possible connection between large-scale victimization and new cycles of violence; Analyze profiles of perpetrators in order to identify potential radical groups at an early stage;

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Make use of identified characteristics of victims, by protecting possibly endangered “victim groups” more effectively, thereby minimizing the ethnic security dilemma; Offer a deeper insight into the victimological aspect crimes based on ethnicity and religion (a major issue in the study of hate crimes and terrorism). 3.2 Terrorism prevention and its justification through evaluation research So far repressive counter-terrorism approaches have been unable to prevent terrorist activity effectively or on any kind of long-term basis, especially with regard to ethno-nationalistic terrorism [30]. Once a radical group is actively engaged in terrorism, they are extremely resistant and difficult to eliminate. Terrorism prevention seems to be a good alternative for regions which have not yet been affected by terrorism. Instead of waiting for a quiet foreseeable threat to turn into real insurgency, post-conflict societies should minimize circumstances that produce radical and fanatical terrorist groups by taking active steps towards prevention. Conflict often destroys the ability of states to cope with internal problems in an independent and effective way. Local officials should therefore be given the chance to contribute more actively to recommendations and measures “ordered” by international and external parties. The financial resources pumped into post-conflict societies must become more transparent in order to evaluate whether their allocation is justified. It seems as if some of the approaches used to cope with the consequences of conflict and reconciliation cannot achieve their objectives. The research approach outlined and the data collected could be used for evaluation purposes because the lack of conclusive research in this area seems to be one of the major problems when proposing and justifying preventive strategies and measures. 4. Final Remarks The knowledge gathered in the course of this research could help to answer fundamental questions about victimization as a root cause of terrorism and its role in justifying violence in post-conflict societies. Furthermore, detailed analysis could become a solid basis for the development of an overall strategic framework, which would unite a multitude of preventive measures to counteract terrorism and hate crimes. Preventive policies, if applied correctly and accompanied by a process of continued evaluation research, could prove a useful tool in preventing terrorism and a real alternative to more questionable approaches which aim at reconciliation in post-conflict societies.

References [1]

[2]

[3] [4] [5]

F.d. Varennes, ‘Recurrent Challenges to the Implementation of Intrastate Peace Agreements: The Resistance of State Authorities’, 7/8 New Balkan Politics (2003) pp. 7-9. [www.newbalkanpolitics.org.mk/napis.asp?id=21&lang=English] P. Waldmann, Ethnischer Radikalismus: Ursachen und Folgen gewaltsamer Minderheitenkonflikte am Beispiel des Baskenlandes, Nordirlands und Quebecs (Opladen 1989). D.L. Byman, M.C. Waxman, ‘The Logic of Ethnic Terrorism’, 21 Studies in Conflict & Terrorism (2000) pp.5-38. D.L. Byman, M.C. Waxman, loc.cit., p.153. I.O. Lesser, B. Hoffman, J. Arquilla, D. Ronfeld, M. Zanini, B.M. Jenkins, Countering the New Terrorism (Santa Monica 1999) pp.99-110,


[6] [7] [8] [9] [10]

[11] [12] [13] [14] [15] [16] [17] [18] [19] [20] [21] [22] [23] [24] [25] [26]

[27]

[28] [29] [30]

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Z. Brzezinski, The Choice: Global Domination or Global Leadership (New York 2004) pp.30-33. K. Cragin, P. Chalk, Terrorism and Development: Using social and Economic Development to Inhibit a Resurgence of Terrorism (Santa Monica 2003) p.11. H.-J. Albrecht, Racial Violence in Europe. A Comparative Study (Freiburg 2003) p.9. J. Levin, J. McDevitt, Hate Crimes: The Rising Tide of Bigotry and Bloodshed (New York 1993) pp.4-6. J.M. Post, ‘“When Hatred is Bred in the Bone” The Socio-Cultural Underpinnings of Terrorist Psychology’, in T. Bjørgo, ed., Root Causes of Terrorism. Proceedings from an International Expert Meeting in Oslo, 9-11 June 2003 (New York 2003) pp.81-97. H. Münkler, Die neuen Kriege (Reinbeck bei Hamburg 2002) pp.175-205. R. Monaghan, ‘Single-Issue Terrorism: A Neglected Phenomenon?’, 23 Studies in Conflict & Terrorism (2000) pp.255-265. W. Laqueur, Die globale Bedrohung. Neue Gefahren des Terrorismus (München 2001) pp.44-56. W. Reich, ed., Origins of Terrorism: Psychologies, Ideologies, Theologies, States of Mind (Washington DC 1998). J.R. White, Terrorism: An Introduction (Belmont 2002) pp.7-18. B. Hoffman, Terrorismus – der unerklärte Krieg (Bonn 2002) pp.13-56. J. Levin, J. McDevitt, op.cit., p.5. T.v. Trotha, ‘Über die Zukunft der Gewalt’, 85 MschrKrim (2002) pp.349-368. H. Jäger, ‘Entwicklungen zu abweichender Konformität und kriegsähnlichem Handeln’, 15 Kriminologisches Journal (1983) pp.131-141. Z. Brzezinski, op.cit., p.29. D.L. Byman, M.C. Waxman, loc.cit., p.155. D.L. Byman, M.C. Waxman, loc.cit., p.162. D.L. Byman, M.C. Waxman, loc.cit., p.153. H. Frank, K. Hirschmann, ed., Die weltweite Gefahr. Terrorismus als internationale Herausforderung (Berlin 2002) p. 32. K. Cragin, P. Chalk, op.cit., p.18, 19. J.M. Post, K.G. Ruby, E.D. Shaw, ‘The Radical Group in Context: 1. An Integrated Framework for the Analysis of Group Risk for Terrorism’, 25 Studies in Conflict & Terrorism (2002) pp. 73-100. J.M. Post, K.G. Ruby, E.D. Shaw, ‘The Radical Group in Context: 2. Identification of Critical Elements in the Analysis of Risk for Terrorism by Radical Group Type’, 25 Studies in Conflict & Terrorism (2002) pp. 101-126. T.S. Szayna, Identifying Potential Ethnic Conflict: Application of a Process Model (Santa Monica 2000). [www.rand.org/publications/MR/MR1188/index.html] T.S. Szayna, op.cit., pp. 23-67. Z. Brzezinski, op.cit., p.29.


III. Role of the International Criminal Justice from the Perspective of Victims



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The Fight against Impunity and the Establishment of the International Criminal Court Irune AGUIRREZABAL QUIJERA* I

Abstract. In the XXI century, issues such as peace and war, conflict and co-operation, sovereignty and intervention or the responsibility to protect, remain as significant as ever. From Thucydides to Hobbes or Rousseau philosophers have analysed these critical issues and had similar dilemmas to nowadays. Over thirty-five different conflicts are going on at present. Armies or rebel groups attack civilians and commit heinous crimes. All too often, the alleged perpetrators of those crimes are not punished by national courts. The international perception is that such crimes constitute a threat to international peace and security. “Determined to put an end to impunity for the perpetrators of those crimes and thus to contribute to the prevention of such crimes”,II the international community established the International Criminal Court (hereinafter “ICC”) with jurisdiction to investigate and prosecute genocide, war crimes and crimes against humanity committed since 1 July 2002. The International Criminal Court is a reality today thanks to the impressive synergy that was created before, during and after the Rome Conference by different actors: the states, the United Nations Secretariat, regional organisations, the International Committee of the Red Cross and international civil society. Through our joint efforts the rule of law prevailed over force. Yet, it is important to understand that the ICC is only one, albeit important, cog in the wheel of international justice and that every state still has the duty to investigate and try those crimes. It is critically important to understand that the ICC is only a last resort so that expectations remain realistic and responsibilities are shared. Very significantly, the rights of the victims before an international tribunal were recognised for the first time in the Rome Statute.

Preface “Unless we place the victims of these terrible atrocities somewhere in our minds in whatever we do that has a bearing on the International Criminal Court, unless we do that, I do not believe we can eventually succeed”. Those words were introduced by Prince Zeid Ambassador of Jordan, the current President of the Assembly of States Parties during the final plenary of the Third Assembly of States Parties session, held in The Hague on 10 September 2004. In a similar moving speech, Desmond Tutu, member of the Board of Directors of the ICC Trust Fund for Victims, speaking during the inauguration of that body in April of

*

Europe Coordinator of the NGO Coalition for the International Criminal Court.

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I. Aguirrezabal Quijera / The Fight Against Impunity

this year, also in The Hague, highlighted what he thought was a “historical moment of making real the reparative function of the Court, perhaps the most innovative function of the International Criminal Court“. Indeed, the Rome Statute establishing the International Criminal Court marked a clear change in the development of enforceable legal standards on victims’ rights [1]. This is the first time that international jurisdictions recognize the status of victims as such with concrete and meaningful rights before an international tribunal: the right to protection [2], the right to participate in the proceedings [3], and the right to integral reparations [4]. As time goes by, and the Court initiates its judicial functions, Ambassador Prince Zeid’s words remain with us, reminding us that victims must be at the heart of the proceedings of the Court and in the minds of those working for sustainable development, peace, justice and democracy if we want to succeed in closing the cycle of violence in post-conflict situations. We suggest therefore that the ICC places victims at the heart of its proceedings and, when making decisions, discusses the number of victims, who should be granted protective measures and at what stage, and the best communication and outreach practices in the country concerned; when making decisions on the prosecutorial policies and strategies. Of course, such attention to victims shall also be expected from the States Parties, particularly when making decisions on the regular budget of the ICC and when implementing the Rome Statute. Introduction In June and July 1998, the international community met at the Rome Diplomatic Conference of Plenipotentiaries in order to negotiate and agree upon the final text of the treaty establishing the world’s first International Criminal Court. On 17 July 1998, the Rome Statute of the ICC was adopted by a vote of 120 to 7, with 21 abstentions. Following the adoption of the Rome Statute, very few would have dared to imagine that in a mere four years the Treaty would be in force. The extraordinary co-operation between Governments, international and regional organisations (in particular the European Commission and US based foundations through their support to civil society) and non-governmental organisations, working together to establish the ICC, was at the heart of the extraordinary and unique developments. Since the adoption of the Rome Statute, one hundred and thirty-nine countries signed the Treaty by the established deadline of 31 December 2000. Today, 97 countries are States Parties. Significantly, powerful states have not yet joined the Court (e.g. the United States, China, India, Japan and Russia). Given the ICC’s jurisdictional regime and its limitations, it has a vocation to be universal and it is of utmost importance that states from all regions join the Court. The ICC has established its headquarters in The Hague, the Netherlands, and the main officials have been elected by the Assembly of States Parties: eighteen Judges, the Prosecutor, two Deputy Prosecutors, and the Registrar. The ICC is ready to assume its judicial functions. In fact, two situations have already been referred to the Prosecutor, Uganda and the Democratic Republic of Congo, and the Office of the Prosecutor is said to be making preliminary investigations into six other situations.III The first cases will be crucial in establishing the credibility and legitimacy of the Court. Meanwhile, there are high expectations of the Court’s revolutionary impact in the fight against impunity for the most heinous crimes. In this chapter, I will focus on three main aspects of the International Criminal Court: First, the International Criminal Court and what it represents in the international fight against impunity with respect to genocide, war crimes and crimes against humanity. Second, the main features of the ICC, and some of its main limitations. Third, the challenges ahead for the International Criminal Court.


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1. The International Criminal Court and its significance in the international fight against impunity The Rome Statute has been described as a revolutionary development in international law, since the ICC constitutes an extraordinary new international organization in the paradigm of international relations in the XXI century. The Treaty establishing the ICC aims at assisting the international community in its fight to put an end to the impunity of perpetrators of the most heinous international crimes: genocide, war crimes and crimes against humanity. Its raison d’être is to deter genocide, war crimes and crimes against humanity. Expectations of this Court are very high, probably unrealistically high, but the ICC cannot be expected to put an end completely to these crimes. It is our hope that its existence will prevent wouldbe violators from committing atrocities that would otherwise have been committed. In this regard, the ICC’s deterrent effect will depend on its ability to project a credible threat that would-be violators will be brought before justice. Obviously, to this end, the Court will need to work together with other actors, mostly states, who will retain the primary responsibility over investigating and trying those crimes, but also with international organisations, non-governmental organisations and the media, whose support the Court will always need, particularly in raising awareness and providing information about its purpose and functioning. What seems clear to all, and United Nations Secretary-General Kofi Annan’s recent report on The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies [5] is very straightforward about this, is that the ICC offers new hope for a permanent reduction in the phenomenon of impunity and that it is already having an important impact by serving as a catalyst for the enactment of national laws against the most serious international crimes. Indeed, the most revolutionary effect of the ICC and the best way to measure the ICC’s success will come from its translation into national legislation, the adoption of criminal codes or special acts on international crimes which incorporate these crimes as well as the general principles of international criminal law recognized under the treaty, but also from national cases, as states assume their duty of instigating judicial proceedings. Such a development would indeed be its greatest contribution to international justice and the promotion of democracy. Indeed, the ICC can be described as a means of upholding democratic changes. A recent article [6] raises a valid point when it states that the ICC will achieve its objective of ending impunity by consolidating and improving democratic institutions. And that is so because the ICC offers states a means by which to improve the administration of national justice, re-orienting those institutions in a democratic direction and, thus, contributing to the development of democratic institutions. We can say that the Court is helping democracy and, thus, helping itself. Thus, turning back to our previous statement, the ICC’s most revolutionary impact on the fight against impunity will come from its own existence and deterrent effect and also by serving as a catalyst in the development of national criminal law and effectively creating long-lasting national judicial mechanisms. Of course, the ICC is not alone in its fight against impunity. Since the early 1990’s the international community has taken unprecedented steps to limit the impunity of the perpetrators of the worst crimes against humankind [8]. Two ad hoc tribunals, for the former Yugoslavia and Rwanda respectively, were created by the Security Council. The principle of universal jurisdiction was incorporated into some codes (Belgium being the state whose legislation appeared to be most advanced) and, more importantly, it was being exercised with critically important consequences such as the Pinochet case, which led to judicial proceedings in Chile, or the Yerodia case – Belgium v. Congo – which led to a ruling by the International Court of Justice declaring that a sitting state foreign minister was immune to

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prosecution in another country’s court system regardless of the seriousness of the crimes with which he/she was charged. The Rome Statute was adopted in 1998 but, as we know, other tribunals have also been established: the Special Court of Sierra Leone, a mixed tribunal for Cambodia, a Special Chamber in the State Court of Bosnia and Herzegovina and the Panels for East Timor or the Kosovo Panels which are hybrid mechanisms. They are all part of a system of international justice meant to combat impunity. These tribunals have been very expensive, raising many concerns as to their sustainability as well as to the potential development of similar mechanisms in the future. In this regard, while it is of course important to bear in mind that the costs must be measured in terms of cost-efficiency and, certainly, some adjustments and lessons learnt from those tribunals must be seriously taken into account, one must also consider the preventive and deterrent effect that international justice has in assisting a society to close the cycle of conflict and in contributing to peace. Equally, it has often proved very useful to use facts and figures in order to measure the cost of a new war, which assists us in explaining that international justice is indeed a cheap solution. The question today is whether we are moving forward or, on the contrary, whether this decade of developments in the system of international justice was an exception and we are already witnessing the beginning of a profound regression, a theory upheld by those who criticize the imperfections of the remedies of international justice. We believe that it is too early to know, but that it is imperative to take a careful look at what the ICC should and should not be, as well as at the challenges involved for the international community in fighting impunity effectively. This will allow us to regulate the high expectations of the ICC while attributing responsibility to other actors in such an endeavour. In the first place, the primary responsibility lies with states and with the international community, which should put the necessary resources into the process. This is exactly what United Nations Secretary-General Kofi Annan refers to in the report above–mentioned: “we will only succeed if together with a common basis on international standards, we mobilise the necessary resources for a sustainable justice”. 2. Main features of the International Criminal CourtIV 2.1. The Rome Statute The Rome Statute establishes an international criminal court with an international legal personality, of a permanent nature (provided with its own institutions) and independent. Although it has a close relationship with the United Nations, the Relationship Agreement was adopted by the Assembly of States Parties in September 2004, ratified by the 58th General Assembly and signed by President Kirsch and Secretary-General Annan. The International Criminal Court is an independent and permanent treaty-based organisation adopted by the Rome Diplomatic Conference of Plenipotentiary States. Unlike the international criminal tribunals for Rwanda and for the former Yugoslavia, created by a United Nations Security Council resolution, the jurisdiction of the ICC is not chronologically or geographically limited. The ICC has jurisdiction over crimes committed after 1 July 2002, when the Rome Statute entered into force. The ICC has jurisdiction over crimes of genocide, war crimes and crimes against humanity. The crime of aggression is also covered by the jurisdiction of the ICC (Article 5(d)), yet its definition and the conditions under which the Court shall exercise its jurisdiction over this crime have still to be agreed upon. Having its legal foundations in a treaty provides security to the definition and acceptance of the obligations of the Parties and increases its social and democratic legitimacy. This is why some criticism of the ICC as undemocratic because it can impose its jurisdiction on states which are not States Parties is not acceptable. On the contrary, the ICC is founded on democratic negotiation among sovereign states (including the USA, whose many proposals


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have been reflected in the Statute), negotiated by 160 states, signed by 139 and joined by 97. Moreover, it represents the different legal systems as well as universal democratic values. The ICC has a universal vocation and therefore is open to participation by all states. 2.2. Crimes under the Rome Statute The ICC is designed to sanction individuals who commit: • Genocide (definition based on the 1948 UN Convention on Prevention and Punishment of the Crime of Genocide): acts committed with intent to destroy in whole or in part a national, ethnic, racial or religious group. • Crimes against humanity: crimes committed as part of a widespread or systematic attack directed against any civilian population. • War crimes: grave breaches of the Geneva conventions of 1949 and other serious violations of the laws and customs applicable in armed conflict, both committed in international or internal intra-war conflicts. (in DRC, the conflict has both aspects, while the Uganda conflict is only internal). Once there is an agreement on the definition and conditions upon which the Court may exercise its jurisdiction, these will include the crime of aggression. The Statute implies an unprecedented advance in the codification of international criminal law. It is crucial to recall that the ICC has three different functions: prevention, sanction (but no death penalty) and integral reparation. The Treaty also echoes the need to take into account the perspective of gender, which has been incorporated into the definitions of crimes (of a sexual or gender-related nature), including crimes against humanity, but also into the more administrative yet crucial aspect of the composition of the Court, such as gender balance in the election of the judges. 2.3. Triggering mechanisms, complementarity and co-operation The ICC is a court of last resort. The Rome Statute emphasizes that the ICC shall complement national criminal jurisdictions. Only when the state concerned is genuinely unwilling or unable to proceed with an investigation or prosecution would the ICC be able to rule a case admissible. In this way, the ICC complements national jurisdictions but also other international or mixed tribunals which might be established in the future. Prosecution may be initiated by: The Security Council (e.g. voices are being raised in support of the request that the Security Council refer the situation of Darfur in Sudan or Burundi to the ICC); At the request of any State Party. Interestingly, negotiators of the Statute were not thinking of the states concerned with the crimes to refer their own situations to the ICC (e.g. the two situations currently under investigation by the Office of the Prosecutor - Uganda and D.R.C.) At the Prosecutor’s own initiative with the approval of the pre-trial chamber. NGOs are concerned that the Prosecutor has not yet used his prosecutorial powers, given to him after lengthy negotiations and which must be seen as part of the balanced package in accordance with the Rome Statute. Only when the Security Council refers a situation is there no prerequisite to comply with and the ICC acts as a universal court. Otherwise, one of the following pre-conditions shall apply: Criteria of territoriality: the ICC has jurisdiction over crimes committed in the territory of the States Parties or in the territory of a non-State Party which accepted on an ad hoc basis the jurisdiction of the court, regardless of the nationality of the perpetrator.

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Criteria of the nationality of the accused: The ICC has jurisdiction over crimes committed by individuals who are nationals of States Parties, or of non-States Parties which have accepted the jurisdiction of the Court, regardless of where the crime is committed. As stated before, the revolutionary effects of the ICC will be assessed based on its success in fostering effective prosecution at national level rather than merely on its own existence. Indeed, it is important to manage expectations of what the ICC itself will be able to achieve, since the ICC will only be able to deal with the most serious crimes. The ICC will be limited both by its own jurisdictional regime as well as by its budget. The ICC therefore is only one, albeit important, means by which the international justice system will fight impunity for the most egregious crimes. The foundations for the implementation of the Rome Statute at a national level are the principles of co-operation and complementarity. Principle of Complementarity According to the Rome Statute, national jurisdictions have primacy over the jurisdiction of the ICC. The ICC does not replace national legal systems or the duty of each state to investigate and prosecute individuals for such gross crimes. It complements national jurisdictions. Thus, the ICC will only intervene if the state is unwilling or unable to investigate, prosecute and try an individual who has allegedly committed crimes set out in the Rome Statute. The state is unwilling if, for example, a national decision has been made to shield the person concerned from criminal responsibility for the crimes proscribed in Article 17(2)(a) of the Rome Statute. The state would be deemed unable if, for example, the state is incapable of carrying out proceedings. A simple example is that if the national criminal legislation does not allow for the prosecution of the crimes set out in the Rome Statute or if a national judicial system is so devastated following a period of conflict that it is incapable of mounting effective investigations or prosecutions. This is why it is so important for states to adopt the necessary procedural and substantive laws to enable them to carry out effective investigations and prosecutions and to allow them to co-operate fully with the Court. The most significant achievement of the ICC, in the long term, will result from its being used as a force to strengthen national law and practice, e.g. by incorporating into national penal codes definitions of crimes set out in the Rome Statute and by adopting the necessary procedural laws to implement in full the Statute’s obligations. In practical terms, this will usually require States Parties to amend penal codes, criminal procedural codes and, in some cases, national constitutions. General obligation of States Parties to Cooperate fully with the Court in its investigations and prosecutions States Parties have a general obligation to co-operate with the Court, meet its requests for assistance and implement its orders. The full co-operation of States Parties with the ICC is necessary for the Court to function effectively.V The ICC will rely on States Parties for assistance at every single stage of the process, including investigations and prosecutions. The ICC will not have its own police force or prison facilities. As set out in Part IX (Articles 86102) of the Statute, States Parties must take the necessary steps to ensure that they can detain and arrest suspects, interview witnesses, protect witnesses and victims, secure and deliver evidence, and provide any other assistance sought by the Court. It is essential that national legislation ensure that States Parties can fully and expeditiously meet the requests emanating from the ICC. Delays might impede the administration of justice, especially in penal trials where evidence, testimony and other elements can be destroyed, lost or their value reduced as time goes by. Most importantly, national legislation should allow arrest


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and surrender to the Court of those individuals requested by the ICC, suspected of committing crimes under Article 5. When a state is confronted by competing requests of surrender or extradition by a state and the ICC, when the other state is a State Party, the principle of the primacy of the ICC’s jurisdiction should be applied provided that the conditions under Article 90 have been satisfied. The crimes under Article 5 are covered by the principle of speciality in relation to crimes committed previously by the same individual. The arrest procedural guarantees (Article 59) must be assured by the states which receive a request for arrest or surrender. National law should recognise the obligation of states to notify the pretrial chamber of any application of a decision that implies conditional parole and take into account any recommendations of that Chamber, in view of the fact that these are the most serious crimes against humanity. If a state decides not to comply with its obligation to cooperate with the ICC, many believe that the Assembly of States Parties or even the Security Council could adopt sanctions. Maybe the only solution is denunciation or stigmatisation. As for non-States Parties, in principle there is no obligation of co-operation except in the case of a Security Council resolution and referral. Agreement on Privileges and Immunities (APIC) The Agreement on Privileges and Immunities will allow the Court to protect officials, staff, victims, witnesses, and other persons, as well as buildings and resources. Documents and evidence also need to be protected, and material kept and transferred to the ICC. As the ICC is an independent institution, it cannot rely on the privileges and immunities provided for in the 1946 Convention on Privileges and Immunities of the United Nations, nor those provided for by the Vienna Convention on Diplomatic Relations. It is very worrisome that, while 97 states have joined the Court, not even a quarter have fully implemented the Statute. Many laws are actually delegating the first analysis of a situation or case concerning ICC crimes to the ICC. Only if the ICC decides not to consider it will such a case be tried by the national jurisdiction. This is not what complementarity was meant to be, and it would block the capacity of the ICC to take care of the cases of those who bear the greatest responsibility. There are different approaches for implementing effective national legislation depending on the legal system, constitutional requirements and traditions of each state. Technical assistance provided by states that have already ratified and are in the process of enacting national legislation would facilitate and speed up the process among other states. 2.4. Framework of victims rightsVI A comprehensive framework of victims’ rights was finally agreed under Articles 68 and 75 of the RS as well as under the Rules of Procedure and Evidence. Rights to Protection: The Registry will house a Victims and Witnesses Unit (hereinafter “VWU”), to help victims and witnesses to face the judicial process without further trauma. The VWU should provide protective measures and security arrangements, counselling, etc. to victims and witnesses appearing before the Court and others at risk on account of testimony. Special attention is given to victims of sexual or gender violence. Many NGOs see that when the Rome Statute refers to victims appearing before the Court it is actually referring to all stages of the proceedings, not only the trial but also during investigations.

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Right to Participate: Victims have the right to apply to the Registrar in order to be admitted as participants in a trial. The relevant chamber dealing with the case will allow victims to participate when the following criteria are met: There is a personal interest of the victim to intervene in the proceedings, There is no threat to the rights of the accused or to a fair and impartial trial, and appropriate stages in the proceedings for the views and concerns of the victim to be presented and considered are available. Victims shall be assisted by legal representatives (in the case of a large number of victims it could be one common to all, ensuring distinct interests of victims) who can pursue the best interests of the victims and interact with the judges and parties. Victims have the right to be notified of the most important procedural developments in their case. Victims can also contribute to fact-finding by sending communications to the Prosecutor so that he may initiate an investigation on his own initiative [9]. This can also contribute to the healing process. They can also seek to preserve the assets of the accused which could be used for reparations if the accused is found guilty. Right to Reparations: Article 75 of the Rome Statute states that, in each case, the Court shall establish principles for reparations to victims, including restitution, compensation and rehabilitation. A Trust Fund for Victims was established for the benefit of the victims and their families, and its sources will include money and property collected through voluntary contributions, fines and forfeitures imposed by the Court. A Board of Directors was elected by the Assembly of States Parties in the second session of 2003. Former Minister Ms. Simone Veil currently holds the presidency of the Trust Fund. At the plenary of the third session of the Assembly of States Parties, she made a plea calling on states to make voluntary contributions. Interestingly, the USA NGO coalition has made a huge campaign to collect funds. 2.5. What are the limitations on the ICC’s capacity to end impunity? 1. Non-retroactivity: The ICC does not have jurisdiction over crimes committed before 1 July 2002. What happens to crimes committed before that date? Nonretroactivity affects only ICC jurisdiction. National jurisdictions are not limited since some of the crimes under the Rome Statute are part of customary or treaty law. Many NGOs are pursuing extraterritorial and even universal jurisdiction. In the view of many organisations, the concept of universal jurisdiction is coming under attack. The most explicit example was developments surrounding the amendment of the Belgian law, amended several times until the United States was finally convinced that cases like the one against General Franks would not be accepted before Belgian courts. As mentioned infra, the most regressive development took place in the case of the ruling on the Yerodia case. 2. Jurisdiction of the ICC, Article 12: in cases not referred to the ICC by the Security Council, the “State of which the person accused of the crime is a national” or “the State on the territory of which the conduct in question occurred” must be a party to the Statute or have accepted the jurisdiction of the ICC. The universality of the ICC is thus limited to the ratification or acceptance by states in most internal conflicts. 3. Although independent, the ICC has a strong relationship with the United Nations, sharing objectives such as maintaining peace and international security. The Stat-


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ute recognises the possibility of the Security Council’s referring a situation in a resolution adopted under Chapter VII of the United Nations Charter. Also, Article 16 acknowledges the possibility of deferral by the Security Council of an investigation or prosecution. The same resolution might include cautionary measures to avoid evidence disappearing. However, could a national jurisdiction proceed with a case under such circumstances? 4. The ICC lacks judicial and police means. Its efficiency relies on states’ cooperation. If a state fails to cooperate, what can the ICC, or the Assembly for that matter, do? 5. Cost effectiveness. Given the financial limitations of the ICC (which will fundamentally depend on quotas and voluntary contributions from States Parties), the Court will be able to deal only with a restricted number of cases. The next budget of the ICC will consist of €67 million, with €10 million in contingency funds. The Assembly will soon be confronted with the unpaid dues from 2003, and will need to decide on sanctions. It would be paradoxical to veto voting rights to those poor states unable to contribute financially to the ICC. 6. Finally, the absence of partie civile - private plaintiffs - in the procedure is seen by many as a limitation on ICC proceedings. In sum, the limitations mentioned above reflect the ICC’s need to be understood as a court of last resort. In order to be operational and to contribute to the fight against impunity, the system established by the Statute requires states to share the responsibility of investigating and prosecuting, to assist the ICC and to provide financial, political and technical support to the national and international courts. 3. Challenges ahead for the International Criminal Court 1. The universal acceptance (ratification or accession) of the Rome Statute by all states. As of December 2004, 97 States Parties have joined the Court. Countries in areas of conflict such as the Middle East and North Africa, most of Asia, the Caribbean, Central Asian Republics, some African states, and of course three Security Council members, China, Russia and the United States, are among those that have not joined the Court. It will be crucial to continue providing information about what the Court is and what it is not in order to generate political support and understanding in those countries. As for Europe, 38 European countries are States Parties to the Statute but only a few have enacted implementing legislation. Among the European Union, the Czech Republic has unfortunately not yet joined the Court and, among the associated countries, all except for Turkey are States Parties. 2. States must implement the Rome Statute fully and effectively. states must incorporate the crimes, the general principles, and the necessary legislation to be able to assist the Court in all proceedings. It is interesting that the European Union will soon be adopting a co-operation agreement with the International Criminal Court (currently under negotiation), which will allow the Union to provide information on the findings of, for example, the EU-ARTEMIS operation. On the other hand, the international community has a responsibility with regard to the states concerned with the crimes, as it will encourage their development and reinforce national control over legal responses to conflict and large-scale violations in those countries. 3. Another challenge will continue to be the preservation of the integrity of the Rome Statute [10]. The final text of the Rome Statute was a package or compromise between, a) the most progressive positions defending a Court with universal jurisdiction, an independent prosecutor and independence from the Security Council and b) the conservative positions which

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seek a court with no automatic jurisdiction, accumulative consent requirements, and under the strict control of the Security Council. The final treaty is a compromise, certainly a treaty that had already accommodated many of the most restrictive demands of delegations, including those of the USA. The Clinton administration was, although still an opponent to the treaty, constructively involved in the negotiations. Since the United States declared its intention to dissociate itself from the Court by withdrawing the signature of the treaty signed by President Clinton, the Bush administration launched an aggressive campaign against the ICC. Anti-ICC legislation has been enacted by the Congress of this country by putting enormous pressure on states around the world not to join the Court or, if already States Parties, to violate their obligations under that treaty by concluding bilateral agreements purportedly based on Article 98 of the Statute.VII The US State Department is said to have signed around ninety agreements so far. Governments which signed them did so under extreme pressure. The first piece of legislation was the so-called American Service Members Protection Act and was intended to cut US military aid unless states concluded such an agreement. The second and more recent legislation, introduced by the so-called Nethercutt amendment, goes even further, proposing to sanction States Parties that have not signed a bilateral agreement by prohibiting the US to provide them with funds under the Economic Support Fund, which is a broad State Department based program that includes funding for everything from peace promotion to anti-terror co-ordination, disaster assistance, or the strengthening of human rights and democracy. Although some could argue that a few years ago the antagonistic position of the US towards the ICC might have played in favour of the universal ratification (first, because of the cheap publicity through the numerous articles worldwide on the matter and, secondly, among the so called ‘non–aligned’ developing countries, usually sceptical of a new organisation under the political command of the Security Council), the current campaign is said to be severely damaging for the universal ratification of the ICC treaty. Furthermore, however, the United States has challenged the Security Council with resolutions 1422 of 2002 and 1487 of 2003, aimed at exempting peacekeeping personnel of non-States Parties from the jurisdiction of the ICC. NGOs, but also many States Parties and the Secretary General, have strongly opposed those resolutions, arguing that they violate the Security Council mandate and contravene United Nations efforts to promote law and peace. In 2002, Amnesty International described resolution 1422 as follows: “it seeks to give perpetual impunity from investigation and prosecution by the recently established International Criminal Court, to nationals of states that have not ratified the Rome Statute accused of genocide, crimes against humanity and war crimes when these persons were involved in operations established or authorised by the United Nations” (Amnesty International, May 2003. “The Security Council must refuse to renew unlawful res. 1422”). Yet, the US only withdrew the resolution in 2004, following pressure to do so as, on the one hand, countries emphasized it was more than inappropriate for the US to request immunity from the ICC amidst reports of Iraqi prisoner abuse by US personnel in Abu Ghraib and, secondly, after the UN Secretary-General’s statement on 17 June and the aide mémoire to Security Council members, stating that an extension of the resolution would contradict UN efforts to promote the law in international affairs and strongly urging the Security Council not to renew the resolution. Following the withdrawal, US Deputy Ambassador to the UN, Cunningham, made clear that the administration’s opposition to the Court was as strong as before: “in the absence of a new resolution, the US will need to take into account the risk of the ICC review when determining contributions to UN authorized or established operations. We will also continue to negotiate bilateral agreements consistent with Article 98 of the Rome Statute to further protect U.S.A. persons from the exercise of jurisdiction by the ICC”. Similarly, the State


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Department’s response reiterated this sentiment: “we have not changed our position…we will have to examine each of these missions case by case both in terms of the voting for these resolutions and in terms of the staffing and providing Americans to participate in peacekeeping missions. …We are going to have a look at the consequences of not having this resolution… we have to withhold certain kind of assistance from countries [with] whom we don’t have Article 98 agreements’. Ever since, the US has been making additions with respect to the ICC in Security Council resolutions, making clear that in none of the peacekeeping operations where they do participate will it co-operate with the ICC nor will its personnel be subject to the jurisdiction of the ICC. 4. Another determining factor and challenge will be how effective and successful the first cases of the ICC will be: communication, security, victims, how many cases, why one and not others? The Court’s highest officials were all elected by the Assembly of States Parties, including the eighteen Judges, the Prosecutor, the two Deputy Prosecutors (the last one, Ms. Fatou Bensouda from Gambia, at the third session of the Assembly of States Parties) and the Registrar. The Court is continuing to recruit all the necessary staff to fulfil its mandate. While many thought that it would take years before the Court could investigate and prosecute, two situations have been referred to the Prosecutor of the ICC and precisely by the two States Parties where the crimes occurred: Uganda and the Democratic Republic of Congo. The case of Uganda has already been assigned to Pre-Trial Chamber I, and the case of the DRC to Pre-Trial Chamber II. The involvement of victims and their participation will be a novel aspect of the jurisdiction of the ICC and crucial for the work of the Court. It is unclear how many victims will participate at the Court in the upcoming cases. the Registry is said to be taking the necessary precautions to ensure their involvement, while the ICC relies on the government for their protection. The judges are receiving training on issues of victims and gender-related crimes. The Office of the Prosecutor has said that it is already looking into another six situations. Some are disappointed that he waited so long to initiate investigations in the DRC (announced in July 2003), and started only when the Government made a referral, whereas the Statute provided him with proprio motu powers to initiate investigations on his own initiative. News reports that the President of Uganda, Museveni, has called a halt to ICC investigations have spread and attention is focused on the ICC and particularly on its Prosecutor, Luis Moreno Ocampo. Many fear that if the Prosecutor gives in to a deal to facilitate a reconciliation process at the president’s request, the ICC’s credibility will be seriously undermined, as it would be seen as an instrument of politicians. This is, therefore, a decisive moment for the Prosecutor in establishing its prosecutorial strategy and setting the precedence for the Court’s legitimacy to act as a deterrent for future would-be violators. Meanwhile, various actors, including NGOs, States and foundations, are supporting the Court’s efforts to adopt a common strategy on communication, including establishing impact assessment on hazardous or challenging situations and outreach policies targeted at the populations most affected by the crimes, and contributing to the transparency of the Court’s work while respecting its confidentiality obligations. Every experience and lesson learnt from other tribunals shall be seriously considered. It would make no sense at this stage to repeat the mistakes made by the ad hoc tribunals, who waited too long to explain their mandates and proceedings in the former Yugoslavia and Rwanda. 5. Review conference in 2009 Article 123 states that seven years after the entry into force of the Rome Statute, the UN Secretary-General will convene a review conference to consider any amendments to be made to it. Such a review may include the list of crimes covered by Article 5. The Final Act

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of the Rome Statute, Resolution E, regrets that no generally acceptable definition of the crime of terrorism or drug-related crimes could be agreed upon under the jurisdiction of the ICC and recommends that the review conference consider crimes of terrorism and drugrelated crimes with a view to arriving at an acceptable definition. This issue could be of importance for some States Parties as well as non-States Parties. Another critical matter will be the definition of the crime of aggression. However, fundamental questions such as who decides on the definition of aggression (Security Council, UN General Assembly, International Court of Justice, the ICC?) remain unsolved. The danger is that the review conference might be used to open up the Rome Statute. The third session of the Assembly of States Parties elected a focal point for the review conference - Mr. Rolf Fife from Norway. Conclusion The best response to the United States and other reluctant states or states who have expressed concerns is a well-functioning, effective, fair and independent ICC. The way the ICC deals with the first cases will be critical. Its credibility as a judicial, impartial and independent Court must be ensured. The rapid entry into force and establishment of the ICC has been made possible thanks to the synergy before, during and after Rome between the different actors. As a court of last resort and a court which shall deter these crimes and contribute to the end of impunity, it cannot be forsaken now. This institution can not work effectively in isolation. On the contrary, a much more co-ordinated effort is required now if supporters of the system of international justice want it to succeed. Governments, international and regional organisations, the European Union’s solid political and financial support, academia and non-governmental organisations from every region of the world shall continue to work together to implement legislation, undertaking effective and firm action to defend the integrity and universality of the treaty and carrying out supportive measures to establish the foundations of the Court. The ICC is a profound ethical response to the horrendous crimes suffered by millions of victims throughout history. Victims shall be able to raise their voices, receive adequate protection, participate in the proceedings and receive integral reparation, all of which is a real achievement. Now, the Court cannot single-handedly put an end to impunity. The limitations enshrined in the Rome Statute, but also in the foundations of the ICC, based on complementarity, make the states the primary actors in this endeavour. If the international community as a whole is determined to transform the words ‘never again’ into reality, three commitments must be made: Firstly, states and the international community must provide sustainable resources for peace, justice and the law. Secondly, states must have the political willingness to end impunity. They must implement and use legislation and exercise jurisdiction over international crimes . Thirdly, we must all continue to explore the effectiveness of Hybrid mechanisms, with reference to national trials, in reinforcing national authority.


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Endnotes I

The opinions expressed in this article are personal, and shall not compromise the NGO Coalition or its members. II

Preamble of the Rome Statute of the International Criminal Court.

III

As stated by Luis Moreno Ocampo, Prosecutor of the International Criminal Court, before the Third session of the Assembly of States Parties in The Hague in his open statement, September 6-10 of 2004. IV The purpose of this Chapter being to give a general overview of the main features of the Rome Statute and the ICC, we shall apologise for the limited descriptions and definitions. For further details review the extensive literature on the Rome Statute, e.g. op. cit. Commentary on the Rome Statute of the International Criminal Court. V The Statute recognises other obligations to cooperate, e.g. the enforcement of the sentence in Part X (arts 103-111). VI

See References [2], [3], [4].

VII

There is extensive literature and position papers by most non-governmental organisations on the issue of the Bilateral Impunity Agreements. For further information the websites of the following organisations can be visited: e.g. Amnesty international, Human Rights First, Human Rights Watch, FIDH, the NGO Coalition for the ICC, Citizens for Global Solutions. Also, it is recommended to visit the European Union’s website on the ICC, containing the Declarations and demarches as well as the 30 September 2002 General Affairs Council Conclusions and Guiding Principles setting benchmarks on this matter.

References [1]

[2]

[3]

[4]

[5]

[6] [7]

Edited by S. Roy Lee, New York, Transnational Publishers inc., (2001). The International Criminal Court. Elements of Crimes and Rules of Procedure and Evidence. Part two, Chapter 6. Victims and Witnesses. Bassiouni, M. Ch. (ed), International Protection of Victims, Editions Eres, 1998. Bachrach, M. “The Protection and Rights of Victims under International Criminal Law” The International Lawyer, No 34, 2000. Roy S. Lee, op. cit., Brady, H. “Protective and Special Measures for Victims and Witnesses”, pp. 434-456. Roy S.Lee, op. cit., Bitti, G. and Friman, H. “Participation of Victims in the Proceedings”, pp. 456-474. Birte, t. “The legal Position of Victims in the Rule of Procedure and Evidence”, in Fisher H., Kress C. and Rolf Lider S. (Ed.) International and National Prosecution, Current Development, Berlin Verlag, Arno Spitz Gmbh, 2001. Donat-Catin, D. “Commentary on Article 68” in Triffterer O. (ed.), Commentary on the Rome Statute of the International Criminal Court, Baden-Baden, Nomos Verlagsgesellschaft, 1999, pp. 869-888. Donat-Catin, D. “Commentary on Article 75”, op. cit. Commentary on the Rome Statute of the International Criminal Court, pp. 965-978. Van Boven, T. “Rendering Justice for Victims: a Case for Reparations”, in W.J.M. van Genugten et al (eds.), Realism and Moralism in International Relations, Kluwer Law International, Netherlands, 1999, pp. 197-211. Report of the Secretary General on The rule of law and transitional justice in conflict and post conflict societies, to the Security Council on 3 August 2004. S/2004/616. Mayerfeld, J. “The Democratic Legacy of the International Criminal Court”, The Fletcher Forum of World Affairs, vol. 28:2. (Summer 2004), pp. 147-156. Dicker, R. and Keppler, E. for Human Rights Watch, “Beyond The Hague: The Challenges of International Justice”. (2004).

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[8]

[9]


Human Rights First, “The role of human rights NGOs in relation to ICC investigations” (2004). Human Rights Watch, “How national non governmental organizations can work with the Court”, (2004). Aguirrezabal, I. “The EU and the US, one step forward , two steps back, policy on immunity for US peacekeeping personnel”, Fundación para las Relaciones Internacionales y Dialogo Exterior, Boletín 1. (October 2004). Aguirrezabal, I. “The integrity of the Rome Statute: political aspects from a European an American perspective”, Der Internationale Strafgerichtshof, Fund Jahre nach Rom, Deutche Gesellschaft fur die vereinten nationen e.v., Deutsches Institut fur Menschenrechte, et Amnesty International, Berlin. pp. 38-45


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Large-Scale Victimization and Small-Scale Trials: Selection Criteria and the Use of Sampling Techniques in the Investigation of International Crimes Xabier AGIRRE ARANBURU1

1. Abstract: Large-scale victimization due to armed conflicts is more often than not related to acts that constitute international crimes (which for the purpose of this paper refer to war crimes, crimes against humanity and genocide). From the perspective of international criminal law (ICL), due to legal and practical limitations, large-scale victimization will necessarily have to be accounted for selectively, and in small-scale trials. This raises critical issues of legitimacy and representativeness at different levels. First, at the broadest level, a situation will have to be selected from the universe of potential situations of international concern around the world. Then cases consisting of particular offences and accused within the situation shall be selected. Finally, a selection of the means of evidence by which to investigate and prove those cases will take place. Issues specific to each of these levels need to be discussed in order to define the most objective and reliable criteria for selecting (in this order) situations, cases and means of evidence, so as to optimize the representativeness of the proceedings vis-à-vis the broader reality of large-scale victimization. The credibility and legitimacy of international justice will be determined to a large extent by their real or perceived ability to represent in a fair and objective way the realities of large-scale victimization.

2. Introduction “There are many ways to kill a person, but only some are illegal.” Bertolt Brecht

The idea that law is to be applied in some sort of neutral universal manner, as a kind of righteous epiphany, belongs to the field of magical beliefs rather than social conventions, and is usually referred to as “the Kantian fallacy”. Criminal law is rather the result of the combination and tension between the two main pillars on which it is built, penal dogmatic and criminal policy, which roughly refer to the formal definition of the crime and its effec1 This paper has been written by the author in his personal capacity, and does not represent necessarily the views of the ICC. The author is grateful for their comments and corrections to Eric Manton, Roberta Belli, Uwe Ewald, Paul Seils and Claudia Angermaier.

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X. Agirre Aranburu / Large-Scale Victimization and Small-Scale Trials

tive prosecution or, in other words, the theory and practice of this trade.2 Such distinction can be explained also in terms of primary and secondary criminalisation, whereby the former is the “initial phase” of defining the crime, and the latter “comprises the control organs – judges, police, etc. – in the action of selecting which illegalities must be prosecuted and which individuals must hence be criminalised”.3 Hence, the words that Brecht conceived for national systems acquire renewed and greater meaning in international criminal law (ICL), where the gap between grand dogmas and mundane policies grows conspicuous and “secondary criminalisation” results from complex and widely discretionary processes of selection. Rather than following the Kantian ideal of universal and uniform rules, when applying ICL prosecutors will have to be reminded that, as in the play on words by Umberto Eco, “I can’t be Kant”. Prosecutorial discretion is the margin of decision allowed to the prosecuting operators by the law for its implementation, in issues such as the choice of the matter to be investigated, the profile or level of the suspects, as well as the choice of charges and penalties to be pursued. While prosecutorial discretion is inherent to criminal justice, its limits and criteria need to be clearly identified and publicized. The principle of “mandatory prosecution” prevails in some systems, where prosecutors are supposed to act on every crime known to them (for example in Germany and Spain). Others systems are closer to a concept of “opportunity” where a variety of reasons permit deferral of prosecution of known crimes in the name of “public interest” (as largely accepted in The Netherlands, USA, England and Wales).4 “Compulsory prosecution” should be the guiding principle for particularly serious crimes, as opposed to mere “opportunity”, because of the very gravity and offensiveness of the criminal conduct. Nevertheless, international crimes entail the paradox of deserving “compulsory prosecution” due to their serious nature, yet are handled typically with a high sense of “opportunity”, as a result of legal lacunae, limitations on resources, plurality of competent fora and political interference. Broad prosecutorial discretion is characteristic of ICL, whether implemented by national or international jurisdictions. In the words of the Prosecutor of the ICTY, “the main distinction between domestic enforcement of criminal law and the international context rests upon the broad discretionary power granted to the international Prosecutor in selecting the targets for prosecution”, since at the international level “the discretion to prosecute is considerably larger, and the criteria upon which such prosecutorial discretion is to be exercised are illdefined, and complex”.5 It should be noted though that such discretion is not specific to international prosecutors, since national prosecutors implementing ICL (possibly on the basis of universal jurisdiction) would have about the same level of discretion and similar dilemmas. 2 See for example LANDECHO VELASCO C.M. and MOLINA BLÁZQUEZ C. Derecho Penal Español. Parte General. Madrid: Tecnos, 2000, Chapter III “Las ciencias penales”. 3 PAVARINI M. Control y dominación. Teorías criminológicas burguesas y proyecto hegemónico. México: Siglo XXI, 1998, p. 147 (translation of the original in Italian of 1980). 4 See FIONDA J. Public Prosecutors and Discretion: a Comparative Study. New York: Oxford University Press, 1995. The German Code of Criminal Procedure s. 152 (II) states that "the Public Prosecutor is required to take action against all prosecutable offences, to the extent that there is a sufficient factual basis”. The Dutch Code of Criminal Procedure Article 167 states that “the Public Prosecutor decides to prosecute in the case where a prosecution seems to be necessary regarding the result of the investigations. Proceedings can be dropped for reasons of public interest”, and the Ministry of Justice approved a (unpublished) list identifying more than fifty such factors of “public interest”. See also Roberta Belli, To Prosecute or Not To Prosecute? A Comparative Study of Prosecutorial Discretion at the National and International Level, LLM Thesis (Utrecht University, unpublished), and Matthew R. Brubacher “Prosecutorial Discretion within the ICC”, in Journal of International Criminal Justice, Vol. II (2004), p. 71-95. 5 L. Arbour, statement before the ICC Preparatory Committee, December 8, 1997.


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Such broad discretion implies ample room for selection, which will take place as a transition, a linear development, from the realities of large-scale victimization to the end result of attributing individual criminal responsibility, through the venue of small-scale trials. Two parallel lines referring to the scope and the standards of the evidence guide this transition. The first one consists of the progressive narrowing of the scope of the cognitive and legal processes from the large-scale reality to the concise set of facts specifically attributed to the suspect by the accusation, and to the eventually narrower judicial findings. The second one is drawn by the gradual rise in standards of evidence, from mere indicia derived from notitia criminis, to some reasonable basis required to initiate an investigation, to the more categorical or prima facie foundations of an accusation, to the standard of certitude beyond reasonable doubt which is defined (in common law practice) as essential for a finding of guilt. This is a cumulative process. Each level of selective decisions is built on the previous one, so that the initial decisions may determine to a large extent the final outcome. At the end of the process the scope may become so small that such gross reduction of the reality will be regarded as credible and legitimate only if it has been constructed as a valid sample, following criteria of empirical rigour and procedural fairness. The key for the validity of the final sample judgement will be a growing level of exigency in the standards of evidence; the final sample may be very small, but it should also be very strong because it has been consolidated through the process of investigation, litigation and judicial examination. Growing Standards

Indicia, notitia criminis

Narrowing Scope

Large-scale victimization

Situation

Reasonable basis

Prima facie

Small-scale trials

Case

Beyond reasonable doubt

Individual criminal responsibility

Judgement

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The experience of national and international jurisprudence (both historical cases and the recent UN ad hoc tribunals), as well as the legal framework of the ICC, allows for the identification of a number of selection criteria characteristic of the different phases of the process (see table below). Some of the criteria that guide the cumulative selection may be pervasive and recurrent at every level (such as gravity and practical viability), while others may be specific to a particular moment of the procedure.

Phase of selection

Criteria for selection

Situation

1. Gravity of the crime 2. Judicial ability 3. Judicial willingness 4. Interests of justice 5. Interests of victims 6. Practical viability

Case

1. Gravity of the crime 2. Responsibility of the suspect 3. Impartiality 4. Specific policies 5. Practical viability

Evidence

1. Representativeness 2. Source evaluation 3. Practical viability

3. The selection of situations “Situation” is the term used by the ICC Statute to refer to the factual and legal context specific to crimes that “appear to have been committed” (as in Articles 13, 14, 15, 18 and 19). For the purposes of this paper, the term “situation” will assume this meaning and will be used to refer to any jurisdiction concerned with ICL. A situation is often determined factually by reference to a given armed conflict, a geographical area where the crimes were committed, as well as a given time-frame. The selection of a situation is the first choice to be made in the process of judicialization before national or international jurisdictions, and as such it may be the most decisive one for the legitimacy of the process. Political considerations of one kind or another will be virtually unavoidable when selecting a situation for several reasons. Firstly, because States remain the main subjects in the definition and implementation of international law, and as such their representatives are entitled to a number of opportunities in influencing the design of such law as well as its enforcement by other fellow states or surrogate international institutions. Secondly, for practical reasons, because judicial powers, whether national or international, operate in a state of structural weakness that makes them dependent on political support to carry out their mandate, and such support is most often conditional on the compatibility of the judicial exercise with the objectives of political actors. Examples of a fully politicized selection of situations abound. Consider the criminal procedures initiated by Nazi authorities for “breaches of international law”, allegedly commit-


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ted against the German minority in Poland. As early as November 1939, the Nazi investigating officers reported several thousand killings of Germans and were able to compile a comprehensive file “based upon documentary evidence”, including judicial records, sworn statements, pictures, maps, open sources, autopsies, crime scene reports, victimisation statistics, as well as rather systematic analysis.6 The contrast with the impunity of subsequent crimes committed by Nazi forces in Poland hardly needs to be mentioned. Indeed prosecutorial discrimination of this kind was explicitly enacted in the Barbarossa Jurisdiction Order issued by the German High Command in May 1941. Section I of this Order referred to the “treatment of crimes committed by enemy civilians” and provided for ”ruthless liquidation” and ”collective coercive measures to be applied summarily”. Section II of the same Order dealt with “treatment of crimes committed against inhabitants by members of the Wehrmacht and its auxiliaries”, indicating in sharp contrast that “prosecution is not obligatory” and will take place if necessary for “the maintenance of discipline or the security of the Forces”.7 The “causa general” promoted by the Spanish government at the end of the war of 193639 is a similar example of selective prosecution: crimes committed on the Republican side were thoroughly documented and prosecuted, and reparations were provided for the victims, while those committed on the side of Franco were ignored.8 In a way the “causa general”" was Franco's Nuremberg avant la lettre, where the losing party of the war was prosecuted and convicted, and the winning party was not even investigated, while prosecuting the losers implied preventing any scrutiny of the winners. In the case of the UN ad hoc Tribunals, the situations of the former Yugoslavia and Rwanda were selected by the Security Council in 1993 and 1994, following a combination of formal legal criteria, considerations of the gravity of the crime, as well as political considerations. That the Security Council applies political criteria is normal, since it is essentially a political organ, with a mandate to forge consensus and decisions among State representatives. For the establishment of the ad hoc Tribunals, the Security Council (SC) invoked the threat to “international peace and security” set out in Chapter VII of the UN Charter, which is an essentially political concept open to broad interpretation. Compared to the precedents of Nuremberg and Tokyo, the UN ad hoc Tribunals had the significant advantage of having competence over crimes committed by any of the parties of each situation (as opposed to being merely the “justice of the victors” imposed after World War II). And yet, the decisions of the SC begged the question of why those two particular situations and not others with similar characteristics, a very legitimate and fundamental question that ultimately triggered the process of establishing the ICC. The ICC provides a complex system for the selection of situations, determined by criteria of gravity and substantive definitions of the crimes and their elements, the principle of complementarity and “issues of admissibility” (Article 17), and a series of procedural safeguards granted to the Pre-Trial Chamber, the victims and the accused. This unique system 6 The Polish atrocities against the German minority in Poland. Berlin: German Foreign Office, 1940. Reliable sources coincide in reporting that, in reaction to the aggression of September 1939, several thousands of Germans were murdered and a greater number was deported by the Polish governmental and nongovernmental forces. 7 "Decree on Exercising Military Jurisdiction in the Area of Barbarossa and Special Measures by the Troops" issued on 13 May 1941. This Order was presented as evidence against the German High Command in their Nuremberg trial. See The German High Command Trial. Law Reports of Trials of War Criminals. New York: Howard Ferting, 1994 (reproduction of the original publication of 1949), p. 29-31. 8 See CASANOVA J., ESPINOSA F., MIR C. and MORENO GÓMEZ F. Morir, Matar, Sobrevivir. La violencia en la dictadura de Franco. Barcelona: Crítica, 2002, p. 30-33. The "Causa General informativa de los hechos delictivos y otros aspectos de la vida en la zona roja desde el 18 de julio de 1936 hasta la liberación" was established by decree of the Ministry of Justice of 26 April 1940 with the purpose of “investigar cuanto concierne al crimen, sus causas y efectos, procedimientos empleados en su ejecución, atribución de responsabilidades, identificación de las víctimas y concreción de los daños causados”.

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integrates a definite framework of substantive law, the prosecutorial discretion of an independent prosecutor, and the option of the State parties and the UN Security Council to contribute to the selection of situations through referrals (Articles 13 and 14).9 Compared to the precedents of the prosecution of other international crimes (whether Nuremberg and Tokyo, other international tribunals, or national prosecution based on universal jurisdiction), the ICC Statute represents a significant step towards greater objectivity and a preponderance of the principle of legality in the selection of situations. Nevertheless, inevitably the ICC’s selection of situations will still be conditioned by a number of political factors, including the following: a) Ratification – Competence is to a large extent conditional on state ratification, which is an essentially political decision within the domain of state sovereignty. If a State makes the political decision not to ratify the Statute, the chances of having a situation related to that state selected are very limited (only if its nationals commit a crime in the territory of a State Party, or through Security Council referral, as per Article 12 of the ICC Statute). As of today 97 States have ratified the Statute, which comprises about half of the existing States (192), only two of the five permanent members of the UN Security Council, and some 25% of the world population. This may be the main political factor affecting the ICC’s selection of situations. b) Referrals – The Statute grants the UN Security Council and the States Parties the option to pre-select a situation and refer it to the Court, which is likely to be an essentially political decision. The first two investigations initiated by the ICC Prosecutor are based on state referrals (Uganda and the Democratic Republic of Congo). Nevertheless, such political influence may be legally controlled, since the Statute makes referrals subject to legal review by the Prosecutor, the Pre-Trial Chamber, as well as possible legal challenges by the accused or a competent State before the Trial Chamber (under the requirements of admissibility under Article 17, as well as the procedural provisions of Article 19). c) Substantive competence – The fact that some of the crimes are not applicable (e.g. aggression) or have been defined in terms that are very difficult to apply (e.g. war crime of disproportionate attack, Article 8(2)(b)(iv) may project a political bias in the selection, if in a broad criminological sense such crimes tend to be significantly associated with a certain profile of perpetrators or States. If such crimes are typically committed by perpetrators of rich and powerful States, while other crimes that are easier to determine are related to poor and marginal States, this would carry a political bias into the process of situation selection. This is a hypothesis that should be tested against the available evidence, in terms of empirical-criminological research. d) State support – ICC investigations will need to rely to a large extent on State support. Such support depends on political will. It will need to be assessed a priori, and it may have a positive or negative influence (to promote or deter the selection of a given situation), through means of operational or budgetary assistance. Accordingly, for a greater fairness and objectivity in the ICC’s process of situation selection, most important will be to expand the number of States Parties (including permanent 9 For the ICC system of situation selection and admissibility see M. Bergsmo and J. Pejic, “The Prosecutor”, in Triffter (ed.) Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article, (Baden-Baden 1999), C.K. Hall, “Challenges to the Jurisdiction of the Court or the Admissibility of a Case”, in Triffter (ed.) Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article, (Baden-Baden 1999), J. T. Holmes, “Jurisdiction and Admissibility”, in Lee (ed.), International Criminal Court: Elements of Crimes & Rules of Procedure, (Transnational Publishers 2001), at 321-348 and “Complementarity: National Courts versus the ICC”, in Cassese et al. (eds.), The Rome Statute of the International Criminal Court: A Commentary, (Oxford 2002), at 667-686, S. Williams, “Issues of Admissibility”, in Triffter (ed.) Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article, (Baden-Baden 1999), and A. Zimmermann, “The Creation of a Permanent International Criminal Court”, Max Planck Yearbook of United Nations Law 1998, at 169-237.


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members of the Security Council), emphasize the duty of the Court to subject referrals to objective legal evaluation, provide an applicable definition of aggression and other crimes currently defined in very restrictive terms, and provide appropriate support to the Prosecutor through budgetary and operational means. 3.1 Gravity of the crime ICL has been conceived only for cases of extraordinary gravity, when crimes are so grave that they are considered to be offensive not only for the national society, but for the international society as a whole. The ICC Statute defines the requirement of “sufficient gravity” (Article 17(1)(d)) in order to restrict and focus the action of the Court on the gravest instances of crime. This requirement is consistent with the references in the Preamble of the Statute to “the most serious crimes of concern to the international community as a whole” and past “unimaginable atrocities that deeply shock the conscience of humanity”. Different types of crimes incorporate qualifiers of gravity that operate as elements to restrict international criminalisation to exceptionally grave allegations. This is the case of the definition of war crimes in Article 8(1) of the ICC Statute, with its “particular” consideration of “when committed as part of a plan or policy or as part of a large-scale commission”. Concerning crimes against humanity, there is an equivalent reference in the elements to a “widespread or systematic attack”, as set out in Article 7(1) of the ICC Statute. The rationale of the concept of crimes against humanity in Nuremberg was to open a window for international intervention in crimes committed domestically (victims, perpetrators and territory of the same nationality), and the requirement of “widespread or systematic” operates as a restrictor of criminalisation to limit such judicial intervention to extraordinarily grave offences. Concerning genocide, the specific “intent to destroy” the protected group operates as an essential qualifier of gravity, and may become the main element to restrict the application of this provision. There is a trend in the doctrine and the jurisprudence of the ad hoc tribunals to consider genocide the gravest of crimes under their jurisdiction, typically (not necessarily) graver than war crimes and crimes against humanity. The Prosecutor of the ICC may well operate on the assumption that a prima facie case of genocide will meet the threshold of “sufficient gravity”. The existing ICTY and ICTR case-law may assist in identifying parameters of gravity. The offence of persecutions within crimes against humanity has been a matter of discussion in different ICTY decisions that may assist in determining a lower threshold of gravity. One decision in particular has considered that systematic dismissals from work in public positions, carried out on the basis of ethnic discrimination, “do not constitute persecutions as a crime against humanity because it does not raise to the same level of gravity as the other crimes against humanity”. In the opinion of this Trial Chamber, such acts would reach the requisite level of gravity only in cases of an “extremely broad policy”, explicit governmental decrees ordering massive dismissals on an ethnic basis and “imposing enormous fines”.10 Crimes resulting in death (murder or extermination as a crime against humanity, wilful killing or attacks on civilians as a war crime, killing as an act of genocide) and the number of victims may be considered as the main parameter of gravity for substantive and epistemic reasons. Firstly, because such crimes tend to be considered the gravest among all relevant crimes by sources of law and public opinion. Secondly, because the information available on such crimes is often of better quality, and hence more reliable for systematic assessment.

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IT-95-14/2/T.

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Concerning gravity, to consider crimes resulting in death as the gravest is supported by the following; A) in most national systems wilful killing is considered the gravest of crimes against persons; B) the right to life is the first one consecrated in the Universal Declaration of Human Rights (Article 3) and the paramount rule of international human rights law; C) all situations that have invoked in one way or another international criminal jurisdiction have implied the commission of thousands of killings (Armenia, Nuremberg, Tokyo, Argentina, Chile, Guatemala, ex-Yugoslavia, Rwanda, Sierra Leone, Cambodia, East Timor, Chad, Ituri, Uganda); D) every international crime initiates the enumeration of constituent offences with reference to those resulting in death, suggesting a substantive hierarchy.11 Problems in assessing the gravity of unlawful killings appear when the killings result from a fragmented pattern, or from the conduct of hostilities. An example of the former is the assassination of thousands of members of the Unión Patriótica political party in Colombia, which has been brought before the Inter-American Court of Human Rights as a case of genocide: taken as a joint pattern, this is a very grave event, but the killings were dispersed over a period of several years, committed by a variety of actors belonging to different groups, which diffuses the perception of gravity. Cases of area bombing (indiscriminate attack) may result in large numbers of unlawful killings, but the perception of gravity is conditioned by the allegations of military necessity, and the under-development of caselaw on this matter. The assessment of gravity may be more difficult in situations of systemic or customary violence, which may be very grave, but less conspicuous, than mass killings. The crime of apartheid refers to situations of structural violence where possibly killings are not frequent, but fundamental rights are systematically denied. Many observers described the situation in Kosovo between 1981-1999 in terms of apartheid because of the systematic discrimination of the majority of the population by the minority associated with the State. And yet the international community never considered an international tribunal for such a situation: the ICTY was established only when the open war and mass killings started, and still today is limiting the Kosovo cases to the armed conflict of 1999. Concerning customary violence, the issue might be raised, for example, regarding female genital mutilation. There may be a prima facie case of widespread sexual violence, possibly involving social or state leaders. By international law standards this should be sufficiently grave a situation. By the standards of the national state this may bear no criminal gravity, being a lawful practice sanctioned by long-standing custom. In such cases possibly the implementation of ICL would require standards of gravity reflective of the “conscience of humanity” (as stated in the Preamble of the ICC Statute), beyond the particular social perception in a given society. In addition to the substantive definition of the crimes, national systems usually consider a set of aggravating circumstances, ranging from deliberate cruelty to the abuse of power by state officials, to reoccurrence, or a number of elements perceived to be particularly offensive by the incumbent society. Abuse of power is an aggravating factor acknowledged in national practice that may relate to the status of state officers or to other positions of authority established socially or in private institutions. There are cases, for example, in which such aggravating circumstances can be found against a guard of a private security company taking advantage of that professional status to commit a crime. In the context of international law, the fact that the crime is committed by state agents may deserve specific aggravating consideration because the very authority of the state originates from international recognition. Since states become so only if and when recognised by other states, it is fair 11 As in ICC Statute, “Killing members of the group” as an act of genocide (Article 6-a), “Murder” as a crime against humanity (Article 7-a, followed by “extermination” Article 7-b), “Wilful killing”, “Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture” as war crimes (Article 8-a-I, and Article 8-c-i).


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and coherent that the international community considers as particularly offensive the fact that a given state or its agents misuses the trust placed in it by other states to commit crimes. For the sake of fairness and objectivity, it is advisable for national and international jurisdictions to define parameters of gravity, which should be generic, explicit and public. The following may be considered as parameters of gravity that should inform the selection of situations as well as cases: a) particular consideration of prima facie cases of genocide; b) existence of “systematicity” or a “plan or policy”; c) pattern of “widespread” or “largescale commission”; d) particular consideration of offences resulting in death; e) particular consideration of crimes of sexual assault; f) particular consideration of crimes against judicial and peace-keeping officers; g) persistence and reoccurrence of the crime; h) specific intent of a particularly offensive character (extermination or discrimination); i) cruelty, deliberate causation of suffering or abuse of defenceless individuals; j) concurrence in a joint pattern of different offences under the Statute; k) specific notice on the unlawfulness of the act prior to its commission; l) impact on international peace and security (as in UN Charter, Chapter VII); m) deliberate involvement of State authorities or others in a leadership position (abuse of power). 3.2 Judicial ability or willingness If criminal law is by definition an ultima ratio, a last resort, international criminal law is a kind of ultimissima ratio to be applied only in default of the national systems. This is the basis of ICC jurisdiction and its principle of complementarity, but it is equally relevant to the use of ICL and universal jurisdiction by national jurisdictions, as well as to the establishment of the UN ad hoc tribunals and other hybrid national-international tribunals. In fact, the judicial ability or willingness of the originally competent state has been discussed in Spain and Belgium regarding cases of universal jurisdiction. Article 17 of the ICC Statute identifies as an “issue of admissibility” that “the State is unwilling or unable genuinely to carry out the investigation or prosecution”. This function of the Court to decide whether a State Party is unable or unwilling to genuinely investigate and prosecute will be very sensitive, and possibly subject to changing assessments and judicial challenge by the incumbent state or accused (as in Article 19). Hence the importance of objective and clearly elaborated criteria for determining the willingness and ability to genuinely investigate and prosecute. Since most of the techniques of unwillingness and the attributes of inability are political phenomena, an analysis of the admissibility criteria requires more than a merely normative approach. Nevertheless, only a few authors have seriously written about the criteria of admissibility and little progress has been made in the definition of the terms unable, unwilling, “principles of due process”, “genuinely”, or “total or substantial collapse”. Concerning the factual analysis of admissibility issues, the best guarantees of fairness and objectivity may be achieved by applying principles of investigative methodology similar to the principles of criminal investigation itself. The principle of objectivity dictated by Article 54(1)(a) for criminal investigation (considering evidence both supportive and dismissive of the allegations) should be extended to preliminary examinations, so that the states concerned may be guaranteed that their “willingness” and “ability” will be objectively assessed, without prejudicing admissibility. In assessing a situation the Prosecutor should avoid a sample bias, i.e. extrapolating the assessment of a whole situation from a sample of cases that is not representative, because it either focuses on notably negative or positive cases.

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3.3 The interests of justice Many observers have voiced concerns that the prosecution of international crimes may interfere with a peace process or post-authoritarian transition, to the detriment of alternative forms of justice or conflict resolution. While these concerns are sometimes mere selfserving alibi or veiled threats by perpetrators or their associates, on other occasions they may be legitimate claims by victims or the larger victimized society. Therefore, exceptions to the duty of prosecution may be justified on certain specific and restricted grounds. This seems to the main reasoning behind the provision for “interests of justice” in Article 53(1)(c) and (2)(c) of the ICC Statute. This proviso may be equivalent to the “public interest” invoked in different national systems (which would have been a more felicitous definition, avoiding the contradiction in terms of declining judicial action in the name of justice). The meaning of “public interest” may not be as clear as in national systems when the “public” is humanity as a whole, with its inherent diversity and possibly conflicting interests. Sir Hartley Shawcross opposed the idea of “compulsory prosecution” as contrary to the discretion to which he was entitled as Attorney-General: “It has never been the rule in this country – I hope it never will be – that suspected criminal offences must automatically be the subject of prosecution […,] public interest is the dominant consideration. So under the tradition of our criminal law the position is that the Attorney-General and the Director of Public Prosecutions only intervene when they consider it in the public interest so to do”.12 It was precisely Sir Hartley Shawcross who appeared as Chief Prosecutor of the British team in Nuremberg, which begs the question of how his concept of “public interest” would be ascertained in such cases of international concern. Public interest could be, to a limited extent, a criterion acceptable within the scope of prosecutorial discretion for the prosecution of international crimes. Such public interest could possibly be argued in the form of the interest of “international peace and security”, which are essentially political concepts, recorded in Chapter VII of the UN Charter and invoked for the establishment of the UN ad hoc Tribunals. Abusing these or similar criteria and transforming legitimate international public interest into self-serving political discretion would lead to illegitimate selective investigations. It may happen that the investigation is objective and the process fair, but the choice of the subject to be investigated is arbitrary, motivated by extra-judicial or merely political reasons. Such a scenario would amount to a breach of the spirit of the law, while adhering to the strict letter of the law, a use of the law formally correct but essentially contrary to its purpose. Concerning the implications of foreseeable litigation, in any transitional arrangement there may be persons who disagree with measures of grace and ask for penal justice. It may easily happen that those persons submit their individual or collective claims to the Prosecutor of the ICC or other national prosecutors on the basis of universal jurisdiction. This scenario is illustrated by the precedent of certain victims of apartheid who challenged the Truth and Reconciliation Commission (TRC) before the Supreme Court of South Africa by invoking international law against the pardon of suspected perpetrators. The following aspects will need to be considered when assessing a truth commission, amnesty or pardon affecting crimes under its jurisdiction: a) rights of individual victims to justice and retribution, as communicated by themselves or their legitimate representatives; b) interests of the victimised society, as communicated by its legitimate representatives; c) gravity and offensiveness of the crime before the international society; d) identity between beneficiaries and authorisers of measures of grace (“self-amnesties”); e) procedural fairness and impartiality of the relevant measures; f) compatibility of the conciliatory procedures with criminal justice; g) consistency in prosecutorial policy. 12 House of Commons Debates, vol. 483, col. 681, 29 January 1951, as quoted in the Code for Crown Prosecutors, of the Crown Prosecution Service of England and Wales, section VI "The Public Interest Test".


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3.4 Practical viability Practical considerations related to the feasibility of an investigation may influence the selection of situations and cases. Such practical considerations may comprise the following: a) operational difficulties, if due to on-going violence, lack of access to the relevant area or other operational problems, it is not possible to collect duly the evidence; b) financial constraints, if the investigating agency does not have sufficient resources to investigate a given situation or case; c) time, when the alleged crimes were committed in such a distant time that witnesses or other means of evidence have perished; d) age, infirmity or death of the suspect or suspects. These criteria may affect the selection of both national and international operators. They may be legitimate reasons for precluding an investigation, regardless of the gravity and relevance of the allegations. Nevertheless, if a situation or case is not selected for these reasons, the incumbent officers need to acknowledge clearly that these and no other more substantive reasons caused such a decision. For the sake of transparency and fairness it is important to avoid ex post facto rationalizations that would tend to hide such practical considerations behind a customized representation of the relevant facts. Operational and financial difficulties are often directly related to the agenda of the institutions that are supposed to finance or co-operate with the judicial project, and so may become a factor of political influence in the selection process. The problem of time was manifested in a number of cases from World War II investigated by national agencies, as well as Soviet crimes. Considerations of age, infirmity or death of the suspect are accepted as legitimate criteria of prosecutorial discretion in many national systems, as well as in the ICC Statute (Article (53)(2)(c), for age or infirmity). A case in point of case selection conditioned by the death of suspects is IMT Nuremberg, since the loss of Adolf Hitler and Heinrich Himmler deprived the proceedings of the most notorious suspects, and further allowed other lowerranking accused to use them for alibi purposes. In the experience of the ICTY, this criterion has had a significant impact on the investigations related to crimes allegedly committed by forces of the Republic of Croatia and the so-called Republic of Herceg-Bosna, since it happens that sadly the main leadership suspects passed away before they could be prosecuted or brought to trial (including the President of the Republic of Croatia, Franjo Tudjman, President of the so-called Republic of Herceg-Bosna, Mate Boban, top commander of the Army of Croatia, Janko Bobetko, and Minister of Defence, Gojko Susak, may they rest in peace).13 4. The selection of cases Beyond the selection of the situation, in Nuremberg and Tokyo the selection of cases also indicated a significant self-serving bias on the part of the Prosecution. The Nazi leaders were never charged for the indiscriminate bombing of London, Rotterdam and many other European cities, a rather blatant crime that resulted in the death of thousands of civilians. As Taylor explained, to understand why “it was only necessary to look out the windows at bomb-ravaged Berlin”.14 Some similarity between the destruction caused by both sides in 13 The condition of suspects of Tudjman, Boban and Susak is confirmed by their mention in indictments, evidence and public arguments put forward by the Prosecutor in public for a number of related Croat and Bosnian-Croat cases. Bobetko was indicted (case IT-02-62) for crimes allegedly committed in the Medak Pocket, but his surrender was postponed for reasons of health, and he died before he could be transferred to The Hague. 14 TAYLOR T. The Anatomy … , p. 126. The Soviet prosecutor suggested to his British colleagues to include a charge for the German indiscriminate bombing of London with the V1 and V2 rockets, which was considered “inappropriate”.

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the war was in fact acknowledged by Justice Jackson in his opening statement: “It is true that the Germans have taught us the horrors of modern warfare, but the ruin that lies from the Rhine to the Danube shows that we, like our allies, have not been dull pupils”.15 The following criteria identified in the practice of national and international jurisdictions may help to prevent such arbitrariness in the selection of cases. 4.1 Responsibility of the suspect Precedents of national and international practice suggests that ICL should focus primarily on the higher levels of responsibility among the suspected perpetrators, which usually corresponds with higher organizational levels in political or military structures, or with notorious instigators of the crimes. The trials of Istanbul in 1919 of the top leaders of the Ittihad party and government for the massacres of Armenians provides an early precedent of such emphasis on “the big fish”. In the same way the Nuremberg trials (both IMT and subsequent military trials) and the IMTFE Tokyo trial dealt with top leadership suspects, while lower-ranking suspects were either neglected or handed over to the national jurisdictions. The trials of top military leaders in Argentina and Greece for offences tantamount to international crimes provide further examples of leadership cases in national jurisdictions. A similar trend can be observed in the prosecution of schemes of organized crime, where it often becomes evident that to counter such criminality effectively it is necessary to neutralize the individuals who lead the organization and plan or order the crimes. In the case of the ICTY the debate of “big fish vs. small fish” has been the matter of much controversy. Initially the ICTY selected a number of low-level perpetrators, particularly from the Bosnian Krajina (such as the first indictee, Tadić, and a number of others involved in the detention camps). As early as 1995, the ICTY Prosecutor indicted the main Bosnian Serb leaders (Karadzić and Mladić) and some mid-level leaders of the HVO (Blaškić, Kordić, Čerkez and others). A greater emphasis on leadership led the ICTY Prosecutor to withdraw fourteen low-level indictments in 1998. Furthermore, the requirements of the “completion strategy” have obliged the Prosecutor to consider leadership status as a decisive selection criterion, while leaving lower-level accused to the domestic courts. UN Security Council resolution 1503 (28 August 2003) describes the completion strategy adopted by the ICTY as focusing on “the most senior leaders suspected of being most responsible for crimes within the ICTY’s jurisdiction”.16 A new provision of the ICTY Rules of Procedure and Evidence further grants the Bureau of the Tribunal the competence to review an indictment in order to determine whether it – prima facie – “concentrates on one or more of the most senior leaders suspected of being most responsible for crimes within the jurisdiction of the Tribunal” (Rule 28(A)). Significant differences appear when comparing two of the municipalities that attracted most ICTY attention, such as Prijedor and Srebrenica: in the former a number of low-level perpetrators were indicted, while the latter indictments focused on senior officers (with the exception of Erdemović). There are also significant differences in the level of indictees in relation to certain types of crime; rape and sexual violence have involved relatively lower level indictees and convictions (like the Furundžija and the Foča cases), while crimes related to artillery attacks on cities have involved higher-level indictees (like in the indictments for the shelling of Zagreb, Dubrovnik and Sarajevo). Further criminological research on these aspects would be interesting, in order to identify significant correlations between particular offences and levels of leadership responsibility. 15 JACKSON R.H. The Nurnberg Case as Presented by Robert H. Jackson Chief of Counsel for the United States. New York, Alfred A. Knopf, 1947, p. 36. 16 See C. del Ponte, “Prosecuting the individuals bearing the highest level of responsibility”, Journal of International Criminal Justice 2 (2004) p. 516-519.


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In the case of the Special Court for Sierra Leone (SCSL), its Statute specifically limits the jurisdiction of the Court to “persons who bear the greatest responsibility” (Article 1(1)). A similar provision applies to the Extraordinary Chambers in Cambodia, where statutory limitations restricts their competence to “senior leaders of Democratic Kampuchea and those who were most responsible” for crimes committed between 1975 and 1979. There is no such provision in the ICC Statute, but the Prosecutor has announced, as a matter of policy, that he intends to focus on “those who bear the greatest responsibility” (Policy Paper of 5 September 2003). While it is clear that international crimes are usually the result of hierarchically organized action of one kind or another, it is also necessary to note that this perspective may lead to the forging of a kind of “class suspect” category, or the casting of some criterion of objective suspicion that may be detrimental to the presumption of innocence. This is in fact the representation in ICL of the dilemma of suspect-driven vs. offence-driven investigations common in domestic practice. Empirical research into domestic jurisdictions suggests that “the roots of many dubious convictions can be found in the police investigation, even in the early stages of investigation” because of the choice of “the starting point of the investigation”.17 There are two main strategies of initiation, focusing either on the offence or on a given suspect. In an offencedriven approach, the starting point is the evidence of the criminal action, and the identity of the suspect is to be inferred from such evidence at a later stage. In a suspect-driven approach, someone is first identified as a suspect on the basis of the available information or evidence, and then the investigative effort will focus on that particular person. The offencedriven approach tends to define a more objective investigation, to the extent that the selection of the suspect becomes dependent on the evidence derived from the material events. Nevertheless, empirical observation suggests that “all parties involved in criminal proceedings, with the possible exception of the defence, have a strong preference for suspect-driven search and verification, both in the investigative stage and during the construction of proof”.18 The reasons why the prosecution tends to prefer a suspect-driven approach are easy to understand: providing a focal point in the person of the suspect simply makes the investigation easier, giving a more clear sense of purpose to the officers involved, and facilitating the management of resources. A suspect-driven start may well be justified when there are sufficient evidentiary grounds for such suspicion, derived either from the initial notitia criminis or from sound premises of contextual knowledge. If the information available at the initiation stage is considered sufficient and reliable, and it clearly identifies an individual as a suspect, there is no reason not to proceed on a suspect-driven basis. However, it is important to be aware of the risks inherent to such a strategy, because premature identification of the suspects may develop a fatal cognitive bias (otherwise known in cognitive sciences as “corroboration bias”). Empirical research indicates that in many cases “the suspects became suspects because of their criminal records” or “the first suspicion was based on outer appearance, while nothing else related the suspect to the crime”.19 Such tendencies may be equally present in investigations of international crimes, only at a different level, since the perception of the suspected international criminal is certainly conditioned by his or her antecedents and public image, in addition or prior to the acquisition of relevant evidence. The problem is that once the suspect is identified (and possibly labelled as a “target”), the investigation tends to develop a “target-oriented” inertia, a deliberate or unconscious assumption that the suspicion is to be corroborated, rather than tested objectively. In other words, “as the case against a particular person begins to take shape, so (in most cases) does the investigator's belief that that person 17

VAN KOPPEN, op. cit., p. 210 VAN KOPPEN, op. cit., p. 213. 19 VAN KOPPEN, op. cit., p. 211. 18

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is guilty”.20 From that point on, the more time and resources that are invested in that path, and the more the officers become personally involved in the exercise, the higher the risk of losing the broader objective perspective, getting trapped in a “tunnel vision”, and projecting the investigative machinery towards the accusation and conviction like an automaton. The conclusion is, although not inevitably, that “suspect-driven searches appear to promote unsafe convictions”.21 Examples of miscarriages derived from suspect-driven investigations are known in, among others, The Netherlands, the US and the United Kingdom. In the latter, the examples refer particularly to cases of terrorism or murder, where the investigation was conducted in an atmosphere of public outcry derived from the gravity of the crime (cases of the “Guildford Four”, the “Birmingham Six”, and the "Maguire Seven”, all of them resulting in mistaken convictions reversed only after years of imprisonment).22 The British cases of miscarriage have been compared with the Demjanjuk case, both having in common a problem of heavily suspect-driven investigations. (Demjanjuk was wrongly accused before the jurisdiction of Israel of manning a Nazi gas chamber). The defence counsel for Demjanjuk observed that “these cases exposed the weakness of many of the judicial procedures in Britain, particularly with reference to crimes that inflame public opinion”. 23 A possible answer to the dilemma between offence-driven and suspect-driven approaches could be to open parallel lines of investigation, focusing on both the offence and suspect simultaneously but separately. However, this would only postpone the problem, which will inevitably resurface at the stage of the investigation when decisions need to be made on the “suspect” status of certain individuals, and how to proceed from that point on. Another option could be an organization-driven investigation, which would be a kind of a compromise, whereby the initial focus of the investigation would be the organization allegedly associated to the crime (either political, military or other), and the identification of individual suspects would be postponed until such organizational aspects have been properly investigated and analyzed. 4.2 Impartiality Within situations in which different opposing parties are allegedly responsible for crimes, prosecutors will feel compelled to follow a sense of impartiality when selecting the cases, avoiding focussing the judicial exercise exclusively or disproportionately on a particular party. Impartiality being a fundamental principle of criminal law, in cases of international crimes the degree of polarization and mistrust that often prevails in the victimized society makes strictly impartial conduct particularly important. This should not mean that all parties are treated homogeneously or equally regardless of the weight of the evidence, which would be contrary to due fairness. This would only mean than no party can be granted impunity, and that for effective deterrence, a perception of impartiality is indispensable. It may well happen that, although the responsibility of the relevant parties appears to be very different in levels of gravity, it is advisable to select cases related to each of the parties, and once the investigations have been completed such differences will show in the charges (if any) to be formulated (both in the offences and the modes of liability attributed). The Prosecutors of the ICTY and ICTR did follow a certain criterion of impartiality by selecting for investigation cases related to the different parties. In spite of the criticism received over this criterion (particularly from the parties purported to be the “less responsi20

ASWORTH, op. cit, p. 91. VAN KOPPEN, op. cit., p. 211. For a summary of the "Birmingham Six" case see GUDJONSSON, op. cit., p. 445-457. For a summary of the "Maguire Seven" case see ASHWORTH, op. cit., p. 11. 23 SHEFTEL, op. cit., p. xiv. 21 22


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ble”), overall this seems to be an unavoidable element of credibility and legitimacy before the victimized societies and the international community. This criterion affected the selection of cases related to Central Bosnia (including crimes allegedly committed by the two main warring parties, HVO and ABiH), Srebrenica (ABiH and VRS), Croatia (HV and RSK) and Kosovo (FRY and KLA). Upon investigation this selection led to specific and significantly different charges. For example, in Srebrenica the evidence supported charges of genocide on grounds of ordering or other active participation (Article 7(1) of the ICTY Statute) against a number of senior officers and the highest commanders of the VRS (Army of the Republika Srpska) and political leaders of the RS (Karadzić) and Serbia (Milošević), while concerning the ABiH the evidence supported a case of significantly lesser gravity with charges limited to war crimes and against a single local military commander (Orić) on grounds mainly of superior omission to prevent or punish (Article 7(3) of the ICTY Statute).24 A notorious gap in impartiality appeared in relation to Kosovo, where the ICTY Prosecutor selected top leadership cases for crimes allegedly committed by Serb forces, while deciding not to select for investigation any case of crimes allegedly committed by NATO, which has been the cause of extensive criticism and a serious deficit of credibility for the Serbian society. The Prosecutor of the Special Court of Sierra Leone (SCSL) similarly applied a criterion of impartiality, selecting cases for each of the three major armed groups of the conflict, and issuing one indictment for the leaders of each of the groups.25 This criterion caused some controversy when it came to cases related to the party that was perceived by the national society as bearing lesser responsibility, which is the pro-government Civil Defence Forces (CDF), winners of the conflict and considered positively by the national society because of its defeat of the notoriously criminal rebel forces.26 Regarding Sam Hinga Norman, the main leader of the CDF indicted by the SCSL, reportedly he “is regarded by some in Sierra Leone as a hero for standing up to the rebels who were trying to oust an elected government and his supporters are angry that he is being placed in the same bracket as the rebels”.27 In one ICTY case an accused convicted in first instance raised the issue of the Prosecutor’s selection criteria as a ground of appeal, for reasons related to a certain sense of impartiality followed in the selection of his case. The accused defined as “selective” a prosecution “in which the criteria for selecting persons for prosecution are based, not on considerations of apparent criminal responsibility alone, but on extraneous policy reasons, such as ethnicity, gender, or administrative convenience”.28 The accused argued that he was the victim of ”selective prosecution” since the Prosecutor had withdrawn the indictments in an unrelated case against fourteen accused, of a similar hierarchical level but different nationality, because of reasons of “prosecutorial strategy”. The accused alleged that “prohibition of selective prosecution is a general principle of customary international criminal law” and that he was prosecuted “simply because he was the only person the Prosecutor’s office could find to ‘represent’ the Bosnian Muslims”, with the aim of giving an appearance of

24

Furthermore, of all the cases selected from different republics and parties, the Prosecutor only found sufficient evidence for charges of genocide against civilian and military leaders from Bosnia-Hercegovina and Serbia, which is a significant feature of her findings. See official site of ICTY at http://www.un.org/icty/ . 25 The CDF (Civilian Defence Forces), RUF (Revolutionary United Front) and the AFRC (Armed Forces Revolutionary Council). See official site of SCSL at http://www.sc-sl.org/. 26 See Washington Times, 06 Jan. 2005. 27 See BBC report of 10 June 2004 “Sierra Leone war ‘hero’ on trial at http://news.bbc.co.uk/1/hi/world/ africa/3793727.stm. Norman was indicted on 7 March 2003, while two other CDF leaders Moinina Fofana and Allieu Kondewa were indicted on 26 June 2003. On 28 February 2003 the Trial Chamber ordered the joint trial of Norman, Fofana and Kondewa, and on 5 March prosecutors issued a consolidated indictment. The “CDF trial” was the first trial of SCSL, beginning on 3 June 2004. 28 Appeals judgement, case IT-96-21-A, para. 596.

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“evenhandedness”, which in his view amounted to a “discriminatory purpose”.29 The Prosecutor responded that such contrast was within her statutory “broad discretion in deciding which cases should be investigated and which persons should be indicted”.30 The judges dismissed the claim of the accused because of the gravity of the offences, the fact that the accused had been arrested and put on trial (while the fourteen persons who had benefited from the withdrawal of the indictments were at large), and because the accused had not presented sufficient evidence that the prosecution acted improperly in his particular case.31 The decision hence avoided a substantive review of the criteria of case selection used by the Prosecutor. 4.3 Specific policies Specific prosecutorial policies may affect the selection of cases, when it is decided that certain offences are particularly relevant to the national or international society, or possibly to the development of international law. If the judicial operators take a gender perspective, it may be decided that rape and sexual violence are particularly offensive crimes and cases representative of such criminality should be selected. If the prosecutor realizes that disproportionate or indiscriminate bombardment resulting in the death of large numbers of civilians has gone grossly under-reported in the judicial record, cases to this effect could be selected in order to address such a gap in impunity. If the Prosecution adopts a certain class or materialistic perspective (like certain officers of different prosecution teams did in Nuremberg), the selection of cases may focus on economic leaders, crimes of enslavement or looting, or objectives of economic reparation. One of our distinguished colleagues in this seminar referred to the case of Furundžija when questioning the ICTY case selection criteria. He highlighted that the accused was only a mid-level officer, and that the case involved a single victim. The criterion that is missing in his assessment is that Furundžija is a case of rape aggravated by a context of captivity, interrogation and the status of command of the accused. The emphasis on sexual violence in the policy of the ICTY Prosecutor was dictated by several resolutions of the UN Security Council and General Assembly, and led to the selection of cases like Furundžija and the rapes and sexual enslavement committed in Foča. Contrary to the perception of our colleagues, women’s groups have considered Furundžija a very appropriate choice of case and a significant contribution to the fight against impunity for sexual violence. 5. The selection of evidence The key to constructing a series of offences as a consistent international crime is the concept of pattern, i.e. the existence of sufficient elements in common among individual offences so as to consider them as a whole, like a single and greater criminal entity. Constructs of this kind are not alien to criminal law, such as the institution of Fortsetzungstat (continued infraction), whereby a number of criminal incidents with a commonality of key elements are considered jointly as a single crime. Such a pattern may be an objective element of the crime, required by the applicable law. The ICC Elements of Crimes require a “context of a manifest pattern of similar conduct” as an element common to the five specific offences comprised by the crime of genocide.32 Concerning “widespread” or “systematic”, commission is required as an objective element 29

Idem., para. 598 and 612. Idem, para. 600. Idem, para. 615-619. 32 Killing, causing serious bodily or mental harm, deliberately inflicting conditions of life calculated to bring about physical destruction, imposing measures intended to prevent birth, forcibly transferring children. 30 31


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of the crime by the ICC Statute regarding crimes against humanity (Article 7(1)), and a similar element of “large-scale commission” is mentioned for war crimes (Article 8), which will require evidence and analysis of the existence of a pattern of crime. The concept of “Evidence of Consistent Pattern of Conduct” is considered in the Rules of Procedure and Evidence of the ICTY and ICTR. By referring to such “pattern evidence”, Rule 93 of both Tribunals provides for an understanding of the crime beyond every particular incident, in the broader context of multiple incidents with common features. The judgements of these tribunals use often terms such as “campaign”, “common design”, “plan” and the alike to describe the relevant crimes, which is an indication of the importance of the underlying concept of crime pattern and its acceptance in international jurisprudence. The common denominators that show the existence of a pattern may refer to the victims, the geographical area of commission, the chronology, or the purpose and modus operandi of the perpetrators. A critical issue in the selection of evidence when investigating whether or not there is a pattern of crime will be the use of sampling techniques more or less consistent with standards of empirical research. 5.1 Concept and precedents of sampling in international justice Sampling is a technique of empirical research consisting of the choice of a subset of evidence able to represent the overall relevant scope (while the whole scope is referred to as “universe”, “population” or “sampling frame”). Sampling is a common term in social science research, but is not used in regular criminal investigations. Referring to examples is a very common exercise in legal rhetoric. Attorneys are so trained and used to it that often they just use examples as rhetorical tools without really feeling a need to justify the correlation of the “example” to the broader scope of evidence. In empirical research there is no room for such lenient use of “examples”: if something is presented as an example, it is necessary to establish why and how exactly that exemplifies a broader picture and why it is a valid example and not an anomalous or accidental event. It is a well-known principle in social sciences that sampling is not an innocent operation, it may easily carry biases that would misrepresent the analysed universe, and the validity of a sample will depend on the application of complex criteria of selection known as sampling techniques (random, stratified, cluster, snowball samples, etc.).33 A certain type of sampling is a very common technique in building cases of international crimes, in order to avoid the burden of presenting evidence for each and every relevant incident, which would be materially impossible. Typically, first the existence of some common plan, intent or policy is established, to which the criminal incidents are proved to be logically instrumental, and then a sample of incidents is presented in the representation of the overall scope of crime. The incidents are chosen in a way like “case studies” representative of the overall picture. This approach was used, among other examples, in the Junta trials in Argentina, by the Truth Commissions of Guatemala and Peru (“illustrative cases” is how they called their samples), by the Commission of Enquiry of the Human Rights Commission of Indonesia (they refer to “primary cases”) and in a number of leadership cases before the ICTY and ICTR. The quality of a given sample is likely to become a contested issue in any leadership case for widespread or large-scale offences. That was the case in the Eichmann trial, where not all victim’s testimonies were accepted as valid samples of a broader pattern attributable to the accused. Testimonies about crimes that were not immediately attributable to the accused were accepted in terms of sample or pattern evidence as long as they referred to crimes related to the camps, since the camps were organizationally linked to the accused (through the 33 See for example chapters VI "Sampling" and VII "Sampling Theory" of BERNARD H. R. Research Methods in Anthropology. Qualitative and Quantitative Methods. Walnut Creek, CA (2002).

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SS scheme of arrest-deportation-imprisonment-extermination). Testimonies about crimes unrelated to the camp’s system did not have the same acceptance by the judges because, although they could be understood in a broad sense as part of the Nazi pattern of persecutions, there was not such a clear organizational link to the accused: they were not seen as a representative sample of a pattern attributable to the accused (as in the testimonies about the crimes committed in the Warsaw ghetto). Hence, the record of the Eichmann case shows that a victim of Auschwitz could be presented as a valid sample of the relevant crime, but not necessarily so a victim from the destruction of the Warsaw ghetto. In the case against Blaškić (a commander of a military operational zone) before the ICTY, the Prosecutor developed a “widespread and systematic” project to gather pattern evidence beyond the military AOR (area of responsibility) of the accused in support of charges of crimes against humanity. One of the witnesses presented in court to this effect testified about a certain massacre, committed by members of the same army of the accused, against victims of the same ethnicity, in the same period, and in an area that was allegedly within the higher plans for military occupation, but outside the AOR of the accused. In cross-examination the defence pressed the point that the massacre was an exceptional event because, in spite of all the abovementioned elements in common, the fact remained that the witness had no knowledge (not direct, nor by reference) about any other massacre committed by the forces associated to the accused, and the fact appears to be that there was no pattern of massacres as such. The judges of the Trial Chamber did find that there was a (widespread) pattern of mass arrests, expulsion, torture and destruction, which was instrumental to a higher policy of territorial conquest and was implemented methodically (systematic), and convicted the accused accordingly. The question still remains, was the massacre in question a valid sample to exemplify the pattern of crime? There is no univocal answer to this. The problem is that the “pattern” is a procedural construct, a concept shaped by the process, often of fuzzy boundaries. The prosecution will tend to highlight the most dramatic, the gravest aspects of a purported overall picture, even if they are not central to the pattern. Conversely the defence will either challenge completely or press for a restrictive understanding of the pattern. For an objective prosecutor, bound to represent objectively the material facts (as claimed by the civil law tradition and required by the ICC Statute), evidence central to the pattern should prevail over evidence that is more dramatic but less representative. In the ICTY cases the contentions about crime patterns were conditioned, first by a highly adversarial prosecutorial policy and then by the application of the “persecutions’” overarching charge, which aimed at the fuzziest possible boundaries for the concept of pattern. Ultimately the initial conviction of Blaškić was severely reviewed by the Appeals Chambers on different substantive and procedural grounds. In cases against civilian leaders the crime pattern argument is of special importance, because frequently, in the absence of direct evidence of involvement in the executing structure, a strong basis of crime becomes crucial for an inference of superior responsibility. The limits of the “sampling and pattern” argument are shown in two unrelated cases against civilian leaders before ICTY with opposing results. In the Stakić case, the Trial Chamber convicted the accused of a massacre of which no evidence of orders or any other form of direct evidence was produced, because the judges understood that it was part of a consistent pattern of violence caused by policies to which the accused leader had contributed (Mount Vlasić massacre, killing of more than 200 prisoners in August 1992). In the Kordić case, the Trial Chamber refused a similar argument by the prosecution and acquitted the accused because the judges did not see that the massacre in question was a valid sample of a broader pattern, but rather an extraordinary event whose attribution to the accused could not be merely inferred from the material events (the Stupni Do massacre, killing of 16 villagers in October 1993).


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While the abovementioned examples show that it is possible and necessary to utilise sampling strategies in the investigation of international crimes, there is a need to systematize this practice and to establish standards of higher empirical quality. This is not an exact science; it would be fallacious to pretend so. This is an effort to get as close as possible to an objective and scientifically respectable method of evidence collection, integrating the most reliable methods of social research and criminal investigations. This is not necessarily statistics either, which when possible may need to be developed as a separate project. It is not intended to estimate the precise number of the overall population (like a demographic study would do), but merely to prove a certain size, spread and features of the victimized population in the relative broader terms required by the elements of the crimes (by the criteria of “widespread” and similar, which is a rather generic category). 5.2 Sampling frame, data validity and verification The sampling frame is the scope from which you take the sample, and based on which you generalize from the sample. This is somehow an epistemological paradox, since you need to pre-define the scope to be represented before you define the sample, but that is how research works; you cannot take a “positivistic” view of “blindly” taking samples without a preliminary concept of the frame. The sampling frame may be defined on the basis of prima facie evidence derived from secondary sources, such as NGO and media reports, overall monitoring reports, allegations of victims, etc. The frame needs to be used at a level of working hypothesis or provisional concept, to be further tested against sources of higher quality as they are collected. It may be defined by the following parameters (all or some of them, as appropriate): a) type of crime - murder, rape, etc. ; b) victim profile - gender, ethnicity, social, and other possibly relevant features; c) chronology - relevant period and significant sub-segments; d) geography - relevant area and sub-segments; e) perpetrating units - relevant parties and units; f) perpetrating levels - possibly differentiating areas with different degrees of closeness and control of the suspects. A series of segments are to be defined by these parameters, with the aim of collecting valid samples from all, or as many as possible, or those considered relevant (which is equivalent to the techniques known as “cluster sampling” with a probabilistic approach, or “quota sampling” with a non-probabilistic approach). Graphically this can be represented by a table crossing in the two axes the list of all parameters and their segments. The next step would be to define the number of statements (or other items of evidence) to be collected for each relevant segment, for example, for murders in area X and period Y and victim group Z, or committed by unit X in period Y. The number of statements should be proportionate to the size of the segment (a requirement otherwise known as PPS, Probability Proportionate to Size) and to the centrality of the segment to the pattern. The latter requires a preliminary assessment of which crimes seem to be central to the pattern, as opposed to those that appear to be accessory, anecdotal or less representative. Usually not all statements taken become valid witnesses before the court. For a number of reasons many witnesses will not be available or willing to testify at trial. It may well happen that witnesses will have provisional residence or nomadic status, so that it will be very difficult or impossible to locate them again at the trial stage (which may arrive a long time after the statement was taken). It is necessary to factor in these difficulties and to estimate a statement/witness ratio. Alternatively, a legal assessment of the admissibility of affidavits is necessary, so statements may be submitted to the Chamber even if the witnesses are not available. The quality of the sources needs to be assessed as a preliminary matter in the design of the sampling project: if sources of acceptably good quality cannot be obtained, there is no

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point in launching a sampling project. Sampling sources are not necessarily only witnesses; forensic and other evidence may be equally valid. The parameters for assessing data validity include the following: a) immediacy - primary or secondary sources, chronological closeness, linguistic mediation; b) reliability – background, cognitive ability and other subjective features of the source; c) credibility – external corroboration, internal consistency, and other objective features of the information; d) completeness, of the knowledge vis-à-vis the incident as a whole; e) availability and admissibility - whether the source will be available for testimony, and admissibility in court. Sample bias is known as the influence of the criteria of selection and collection of the sample on the extrapolated picture. Samples may be biased for many reasons, deliberate or otherwise, in good or bad faith, including lack of access to certain segments, the methods of collection and the agendas of persons/institutions that mediated in the collection process. Local or other agents mediating in the collection process may carry their own deliberate or unconscious biases. Some persons or institutions may have a specific interest in certain types of offences or victims, or may be conditioned by their means of communication with the primary sources. Such biases may fall in the category of the unavoidable ones, in which case control bias measures will be necessary (neutralization with alternative mediators or alternative sources, explicit mention, or others). Consider a list of victims provided by a certain association of victims: in order to be used for sampling purposes it is necessary to analyse any potential bias related to the area and timing of the activity of the association, its method of registering the information, its agenda or its ideological profile. Sometimes mediating agents may want to present isolated incidents as samples of a broader campaign, with the aim of manipulating the investigation to fit their own agenda. The result of the sampling project, the extrapolated picture, needs to be tested and verified against sources with comprehensive or panoramic knowledge, otherwise known as pattern sources. These are sources that may deliver credible statements regarding the pattern as such, because they had access to several or most segments of the sampling frame. These may include the following kinds of witnesses (and their reports): IGO and NGO field workers, health workers, journalists, social leaders, local authorities, missionaries or religious leaders.


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Large-Scale Victimisation and the Jurisprudence of the ICTY – Victimological Research Issues – Uwe EWALD* Abstract. Horrendous man-made mass sufferings, like widespread killings, torture, rape or expulsion, although empirically easy to recognise, ‘encounter’ a selective and in many respects unpredictable process of official acknowledgement in international politics and judiciary. However, finding the proper means with which to respond effectively to large-scale victimisation (LSV) requires universal recognition of gross human rights violations. Understanding LSV as a social construct ‘produced’ at various institutions by decisionmaking actors can help to facilitate an unbiased approach to preventing mass suffering. International criminal justice (ICJ) plays a key-role in this process of determining dimensions of criminal large-scale victimisation. This paper attempts to shed some light on the underlying dimensions of this judicial construction process resulting in patterns of criminal LSV. For the sake of a more complex understanding, criminal LSV is considered in the context of global governance and is then related to the – narrower – concept of the purpose and goals of international criminal justice. On this basis some dimensions and emerging patterns of criminal LSV within the ICTYjurisprudence are then discussed within the prosecutorial and adjudicative construction process. Finally, some issues for further research into humanitarian victimology will be identified in light of the perspective developed.

Introduction There is a well known victimological paradox in regard to gross human rights violations: while people in their ordinary lives have a rather clear individual perception and feeling of suffering in terms of crucial existential threats like mass killings, torture, rape, beatings, expulsion or mass destruction of basic material living conditions, difficulties seem to emerge when it comes to a universal acknowledgement of these obvious cases of suffering.1 Recent discussions on ‘denial’ and ‘double standard’ dispute whether or not the atrocities happening in Darfur should be qualified as genocide2 or whether torture or killing in Iraqi prisons run by British or American troops should be treated equally to similar cases in Great Britain or the US.3 The material fact of human suffering undergoes a complex societal process of acceptance of individuals and collectives as victims of human rights violations. More specifically, human suffering requires special ‘acknowledgement’ to allow for the conclusion of responsibility of victimisers and ultimately the claims of victims or their representatives.4 The societal, this is cultural, political, and judicial, mechanisms ‘behind’ the construction of LSV *

Max Planck Institute for Foreign and International Criminal Law, Freiburg, Germany/ International Criminal Tribunal for the former Yugoslavia, The Hague, Netherlands. The views expressed herein are those of the author alone and do not necessarily reflect the views of the International Tribunal or the United Nations in general.

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U. Ewald / Large-Scale Victimisation and the Jurisprudence of the ICTY

as an acknowledged social problem can be seen as the ‘othering’ of victims5. Hence, the ‘approval’ or ‘denial’ of an entitlement to the claim of victim of state-based or collective violence is highly dependent on the constructed relationships between ‘ours’ and ‘others’ or between ‘others’ (see part 2). When considering the issue of possible double standards in the context of the death of an Iraqi in a British-controlled prison in Basra, the judge Lord Justice Brooke stated: “It could be difficult for a European government to decide to pursue policies that treated human life as more readily expendable just because those whom their forces kill are not themselves European”.6 These ‘societal technologies’ of constructing identities in difference to ‘others’ apply without doubt to the construction of international crime and its victims as the gravest form of large-scale victimization. Cultural, political and legal definitions on what form of killing (or other forms of victimisation) should be considered an ‘atrocity’, and hence, deserving of the attention of political decision-makers and international judiciary, reshape and often repress authentic and undeniable individual suffering and how it is regarded on a personal or group level. There is an abundance of research and literature which illustrates the tension between biased approaches to LSV labelled ‘Atrocities Management’, ‘Olympics of Victimization’ or ‘Humanitarian Imperialism’7 and the crucial function of criminal justice systems in shaping collective memory.8 Against this backdrop I state here that international criminal justice is one of the most powerful instruments for officially ‘identifying’ LSV, and for prompting the collective memory of mass suffering. In light of the universal nature of human rights, international criminal justice should in principle follow a universalistic approach to human rights violations and approach conflict situations in an unbiased manner based on the gravity of the alleged crimes. Not only should the “outrage of the international community”9 against gross human rights violations not be biased in order to be trustworthy and credible; there is one simple reason for equality and the universality of criteria and their application to real conflict situations in identifying LSV in the context of ICJ (International Criminal Justice): Criminal prosecution and finally punishment in actual cases will only be perceived as acts of justice by the former parties to the conflict as well as third parties when criminal sanctioning rests on a basis which is acceptable to both all involved and external parties and allows them to commit collectively to a common narrative of the past conflict and basic inferences of responsibility – and this is the impartial and fair-minded acknowledgement of suffering on any side during the conflict within the international prosecution and adjudication. Otherwise even international criminal justice will contribute to a recycling of hatred, as some commentators already fear.10 The latter potentially implies a failure of the project of international criminal justice. Paradoxically, denial of universalism in this matter can contribute to the potential causation of violent and even terrorist counter-reactions at a historical remote stage linked to ignorance of suffering and discrimination against another party. And there seems to be little doubt that the above-mentioned paradox between a rather clear individual perception of existential threats and the difficulties of collectively accepting them, regardless of against whom this mass scale suffering is committed, is inevitably linked to interest-based political and global control strategies. Thus, against a backdrop of national jurisdictions (USA, Great Britain) Garland refers to a new penal philosophy and a “return of the victim”11 in light of the relationship between politics and justice. Comparable trends seem to emerge in international criminal justice as well.12 Of course it is too early to judge international criminal justice and to produce historically enduring findings; however, there is reason to believe that similarities with Garland’s assessment exist since there is an interest-related process of normative construction of criminal LSV which is influenced by the dialectics of might and law.13


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Against the wider background of the relationship between LSV and the functioning of ICJ, this article attempts to reflect on emerging patterns of LSV within the jurisprudence of the ICTY (International Criminal Tribunal for the former Yugoslavia) as a result of a judicial construction process within the larger picture of global governance.14 In light of the ambivalence of official acknowledgement versus denial of human suffering, the general underlying question is twofold: How are (collective) victims considered within the construction of individual criminal responsibility for international crimes, and what are the consequences how victims and victimisation are presented? There are two contrasting hypothetical answers in light of the ambivalent ‘acknowledgement’ vs. ‘denial processes’ which I will try to explore in this chapter: a)

International criminal justice acknowledges and reconstructs large-scale victimisation primarily to contribute to the universal goal of an ‘end to suffering’ and peace-making in post-conflict societies (universal approach). Consequently, all victims and forms of victimisation are treated and depicted in a representative way and denial (as a method) is avoided.

b)

Reference to LSV in international criminal justice serves to legitimise coercive interference by the international community against “those responsible”15 based on the fact that mass atrocities have occurred (selective approach). In this case victims and victimisation are the functional ‘means’ to the end of punishing responsible individuals.

The questions imply that international criminal justice (like criminal justice in general) is not one-sidedly determined and exclusively designed to meet the end of victims’ needs, but that ‘victims’ are functional in a politico-juridical process in determining conclusions about victimisers as individually criminally responsible persons. This issue leads far back to the philosophical question referred to by Giorgio Agamben as the “Paradox of the Sovereignty” and reflects on the ambivalent relationship between the sovereign and the law,16 where the essence of sovereignty appears as both legally bound and ‘free’ to set out new rules and laws. However, this complicated and complex topic cannot be discussed within this article, but rather requires in-depth research. The principle approach in this chapter to exploring the hypotheses formulated above is to deconstruct the process of international criminal prosecution and adjudication and to point out its victimological relevance. Firstly, I will deal with approaches to understanding the underlying rationale of international criminal justice as part of global governance in constructing ‘victims’ (I). Secondly, the normative and conceptual dimensions of criminal LSV will be described in the light of the set purpose and goals of international criminal justice (II). Thirdly, the developed model of normative-conceptual criminal LSV dimensions will be used to analyse the jurisprudence of the ICTY from an empirical standpoint and to identify emerging LSV-patterns in the case-law of this ad hoc tribunal (III). Finally, the patterns and dimensions identified will be discussed with regard to the initial question of universal vs. selective approaches to LSV and potential research issues for humanitarian victimology (IV). It should be emphasised that this chapter cannot be more than an initial approach to explaining issues of criminal large-scale victimisation in the context of international criminal justice which should, as intended by this Advanced Research Workshop, be tested and improved in further research on the matter.

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1. Global governance, ICJ and LSV – an ‘external’ perspective 1.1 Human rights protection and ‘efficiency’ of international criminal justice International criminal justice is often understood as a supranational, international or national institution which, once in existence, serves good primarily by punishing responsible war criminals.17 The functioning of the ICJS (International Criminal Justice System) is therefore mainly related to traditional principles of criminal law and due process, although dependent on national and international support. In contrast I would like to widen the scope and to shed some light on the relationship between international human rights policies and ICJ in order to set up the global framework within which external perspectives of international law and politics are linked to the internal agenda setting and the functioning of ICJ. In this ‘external perspective’ of ICJ, I would argue that an understanding of criminal LSV as constructed throughout the process of international criminalisation and sentencing by a sophisticated legal and judicial mechanism depends to a great extent on the understanding of the interplay between these two sides which reflects on no less than the relationship between politics and law, sovereignty and justice.18 Quite obviously, the ‘battle-cry’ of emerging international criminal justice was not the ‘End of Suffering’ but the ‘End of Impunity’.19 Consequently, the efficiency of ad hoc tribunals is first and foremost linked to a retroactive and past-related punitive perspective since ICJ deals with the past conduct of perpetrators, based on the notion of “bringing those responsible to justice”.20 This approach is usually followed by the understanding that there is “no peace without justice”21 and therefore punishment (mainly through deterrence) as such contributes per se to peace-making (see in more detail 2.1). In this logic punishment equals justice equals peace which raises the question of whether more punishment = more peace? In this perspective the criteria used to measure the possible achievements of ad hoc tribunals often refer to the total number of cases or accused which will have been tried in the end by the tribunals. If we consider the case of the ICTY which has 125 final indictees listed at the moment, of which most probably few more than a hundred will be convicted and sentenced after (at least) 17 years by the Chambers of the ICTY, the balance between effort and result does not appear to be impressive, again in light of the above-mentioned relationship between punishment, justice and peace. Moreover, if we consider that this number represents only a tiny fraction of the most responsible individuals, the assertion of deterrence becomes more than questionable. However, from a retrospective point of view the number of accused convicted might not be the most important effective criterion by which to judge ad hoc tribunals. From a historical distance things could appear in a completely different light: the ad hoc tribunals could be seen as crucial places of norm-production and standard-setting in a transitional, globalizing world, where new patterns of evaluation and assessment of humanitarian crises emerge and decisions on international reactions to those crises will be taken which are not framed by the concept of international law as developed in the second half of the 20th century. An emerging globally acting sovereignty, represented by the concept of an ‘international community’,22 sets new normative standards by which to legitimise and legalise coercive actions to nation states. I assert here that from a historical perspective the significant achievement of the ad hoc tribunals will be seen most probably in the development of a more or less consistent normative legal framework which reflects on contemporary forms of collective violence as potential subject matter for international criminalisation, and the need for criteria to define violations of international humanitarian law as the trigger-point for practical (coercive) international action and the provision of international resources. Against this backdrop LSV becomes the central issue as both a trigger for and the object of (coercive) international poli-


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tics and global governance. The jurisprudence and overall decision-making power of the ad hoc tribunals will provide the normative basis for determining national as well as international standards for identifying forms of mass-scale suffering which make it possible for coercive means of global governance to react. The question remains as to whether this approach will be practiced universally in response to all human suffering which objectively qualifies for the standards of criminal large-scale victimisation or selectively dominated and determined by an interest-related political approval mechanism which some sceptical commentators fear may “spiral into the bureaucratic circus”.23 Apparently, international criminal justice emerges and operates within the wider framework of an in-depth global transition. All significant threads in the texture of international criminal justice, be it the legal, institutional or personal aspect, lead to international politics. Understanding international criminal justice therefore means understanding some underlying base lines of ICJS within a globalising world and finally its definitorial power and impact on politics to decide which forms of large-scale victimisation should (or should not) be criminalised and hence trigger and justify (or not) the international mechanism of coercive and other reactions, including military intervention and international criminal justice itself. Moreover, ICJ decides about the provision of resources to compensate for losses and support the restoration of living in post-conflict societies. In turn, the pattern of values produced by international criminal justice by which perpetrators and victims are defined shape political strategies for social control in post-conflict societies.24 For the purposes of this paper I will now take a closer look at the ‘external’ perspective which links international criminal justice to the wider realm of global governance, and elaborate on implications which may be derived for the construction of criminal large-scale victimisation. 1.2 Global governance, new intervention standards, and international criminal justice The analysis of international criminal justice in light of globalisation and post-modernity is “largely under-theorized”25. There is an abundance of legal literature in international law and international criminal law, usually referring to ad hoc tribunals and the ICC, which explains the purpose and goal of international criminal justice in primarily legal-political terms. Despite the vast amount of politico-legal literature, comprehensive non-legal (!) perspectives on general trends in international criminal justice, as can be found in national criminal justice, e.g. in Garland’s “The Culture of Control” or Hudson’s “Understanding Justice”, are hardly available for international criminal justice. Yet, there are some descriptive and primarily analytical articles on international criminal justice, for instance Hagan and Levi, which describe the subtle relationship between international criminal justice and mechanisms of global governance.26 Within the narrower scheme of criminal sciences there are two fields in which extra-legal perspectives on international criminal justice emerge. One is a more general criminological approach, and the other is international sentencing.27 Both perspectives take – so far – a more critical perspective in the reflection of the particularities and the shortcomings of international criminal justice. While Drumbl, for example, criticises the widespread misunderstanding of international criminal justice as a more or less enlarged version of national jurisdiction28 and Kauzlarich et al. anticipate the risk of international criminal justice being dominated by politics and becoming a “bureaucratic circus”,29 Henham sees “obfuscation” and confusion in international sentencing,30 particularly in relation to the reasoning of purposes and the actual effects of sentences. Provided, as I state here, the understanding of the relationship between global governance and ICJ makes it possible to reflect on the deeper layers of the ‘fight against impunity’ and therefore the concept of international criminal LSV, the question now is whether this

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emerging global system is designed and functioning in such a way that the victimological paradox as described at the outset of this chapter is reproduced, or whether international criminal justice as part of an international human rights system and global governance has the potential to contribute to the dissolution of this paradox, thus making it possible to depart from a universalistic approach to human suffering. This would mean that a measure of the ‘efficiency’ of international criminal justice would not only be successful counterrepression but also its contribution to eliminating and preventing actual human suffering. Again, this issue is much too complex to be solved within this article. However, for the purposes of this chapter it is appropriate to consider research into understanding LSV in the context of international criminalisation and to look at emerging practices of international criminal justice in relation to international trends in national crime control which might give some direction in answering questions regarding the underlying determinants of social control in a global context. For national jurisdiction in post-modernity it has been stated that criminal justice and punishment in post-modernity is not primarily concerned “with upholding the legal distributions of property and freedom”31 as the primary concern of criminal justice in modernity, but with risk management as anticipated by Beck.32 “There are strong signs that advanced Western societies have entered a new phase, where their major concerns are not the distribution of social goods but management of the risks arising from these very goods themselves.”33 Garland develops his approach to explain changes in the “Culture of Control” exemplified by British and American penal history over the last 30 years and concludes “the emergence of a reconfigured field of crime control and criminal justice…” and “a reconfigured complex of interlocking structures and strategies that are themselves composed of old and new elements…”34 The basic development of modern national criminal justice can be described in the context of a disciplinary society by the tendency to ‘normalise’ the perpetrator by criminal sanction35 to ensure distribution of social goods; yet, in post-modernity and the globalisation process where risk management appears officially to be a major task for social control, criminal justice consequently shifts its focus to define the most crucial threats.36 Although this anecdotal reference to substantial changes in the goal-oriented approach of national criminal jurisdictions can serve only to illuminate possible similarities with the role of international criminal justice, it appears reasonable to assume an enlargement of those trends in crime control to a global scale where the ‘goal’ of risk management (actually or purportedly for the sake of protection of basic human rights) and ‘target construction’ is enforced primarily by means of coercive intervention by the ‘international community’.37 These observations derived from the analysis of national criminal justice find strong support in the discourse on global security policy as primary risk management.38 Thus, 9/11 and the ‘war against terrorism’ can be interpreted as both a result as well as a cause of a global risk management approach. Having given some truth to the assumption that international criminal justice follows international trends of national crime control, we had to infer that the underlying hypothetical rational of international criminal justice cannot primarily be explained by the political rhetoric of a universal wish and desire to ‘end impunity’ for those responsible for largescale suffering, but rather to control conflicts in order to manage global risks which are considered as threat to the ‘international community’. The dominant no-impunity-and-deterrence-rhetoric39 as an explanation and justification for a universal system of international criminal justice tends to ‘disguise’ the tension between the ‘suffering-’ vs. ‘risk-related’ approach. Besides, referring to ‘impunity’, ‘punishment’ and ‘deterrence’ implies that ‘punitivity’ as the main purpose of international criminal justice offers a ‘solution’, in other words that it supports a predominantly punitive


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style of post-conflict reaction suggesting ‘no peace without (criminal) justice’, a highly questionable approach in light of global and historical diversity of nation and peacebuilding after collective violence.40 1.3 Universal protection vs. interest-related risk management – two approaches In considering the relationship between international criminal justice and global governance, I would like to refer to two contrasting perspectives on global governance and its relationship with international criminal justice: this is the concept of the “Responsibility to Protect”41 on the one hand and the approach of “Global State of War, Security, and Legitimate Violence”42 on the other. Both approaches deal directly with the issue of global governance, international criminal justice and LSV, albeit in very different ways. While the ‘R2P’ approach describes large-scale victimisation from a universalistic perspective putting and end to suffering as the major point of reference, the ‘Security-Risk’ approach as critically reflected by Hardt and Negri sees risks as defined by the international community and identifies ‘relevant’ suffering for the sake of protecting certain interests. Therefore actual suffering undergoes a process of ‘approval’ which qualifies it (or not) as ‘relevant threat’ which then triggers and justifies (or not) coercive reaction. The common point of departure for both concepts is an awareness of a new age of global risks and a different form of war which results in a new concept of security which is, at the outset, confronted by a lack of legitimacy (‘intervention dilemma’) in the use of international and state violence.43 Against the backdrop of this crisis of legitimacy of international and state violence on the international level, both concepts develop a rather different approach to explain further perspectives, although use the same points of reference or subconcepts: • large-scale victimisation as the empirically visualised expression of threats and risks; and the • international justice system as both part of the coercive system of internationally used state and supranational violence and also as the ‘producer’ of legal frameworks to facilitate this complex mechanism of coercive means on an international level. The two concepts (R2P & interest-based security) are used for the purposes of this chapter to provide contrasting perspectives and to develop a baseline of arguments to link global risks, large-scale victimisation and international criminal justice: The ‘responsibility to protect’ states a dilemma of legitimacy contrasting the situations in Rwanda and Kosovo and the need for a new conceptual answer to legitimise supranational force, which can be military intervention, political and economic pressure and international criminal sanction.44 The normative framework, however, which is needed to decide about the legitimacy of those supranational actions and use of coercive means, is based on the assumption that states are responsible for protecting their citizens from major risks as defined by international humanitarian law in a “modern understanding of the meaning of sovereignty”.45 This link between violations of international humanitarian law and an obligation on the part of states to protect their citizens provides a legitimate framework for a trigger mechanism of international coercive means in the case of state failure based on the assessment of large-scale victimisation resulting from the failure of states to protect. If states are not able or willing to protect their citizens, this task shifts to the international community which then provides this protection.46 The formulation “unwilling or unable” is literally the same as in the complementarity provision of Article 17 of the Rome Statute. In short: R2P starts with the Enlightenment notion of the protection of citizens by the state and shifts this obligation

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to the international community in the case of national state failure. Furthermore, there are criteria for deciding on a case of intervention which are broadly based on a prima facie estimation of violations of international humanitarian law47. The core issue of those violations is defined by international criminal law; consequently, in light of this approach international criminal justice jurisprudence contributes to the concept of ‘legitimate international intervention’. “Global state of war, security, and legitimate violence”: Hardt and Negri develop a different line of arguments to link these three corner stones of global risks, large-scale victimisation and international criminal justice, which shows the latter not as motivated primarily by a universal intention to protect populations (presented as the ‘fight against impunity’) but in a more instrumental as well as ideological light as a result of new modes of state violence and in particular by depicting war as based on a legal framework48 for both normative reliability and justification. In this concept threats and risks such as large-scale victimisation are important trigger points for international intervention yet not per se, but only if they have an impact on certain defined interests of the “international order”49, otherwise there is indifference toward those risks. Thus, Hardt and Negri state that war has a tendancy to “becom[e] a permanent social relation”,50 a “permanent global condition”51 to control global risks which “must involve the continuous, uninterrupted exercise of power and violence … (war) has thus become virtually indistinguishable from police activity.”52 The concept of a ‘just war’ “serves to universalize war beyond any particular interests towards the interests of humanity as a whole”53, positing the enemy as (criminal) evil, which is the “enemy of all humanity”.54 In this perspective ICJ becomes an institutional mechanism which ‘translates’ those interest-based ‘threats’ or definitions of ‘evil’ into generic normative terms, eventually based on an assessment of LSV. Under the assumption that these two macro-perspectives on global risks, LSV, and ICJS represent potential trends in global governance, the analysis of ICTY jurisprudence to identify dimensions and patterns of criminal large-scale victimisation must take into account the tension between those two possible tendencies which have a significant influence over the emerging system of international criminal justice. A possible underlying function of legitimising the interest-related and risk-policy driven approach which would result in selective strategies on monitoring atrocities and prosecuting perpetrators must be contrasted with the universal no impunity approach based on the fundamental enlightenment idea of the equal importance of individual human life. Thus, in light of these concepts international criminal justice is both a result and facilitator of a global peace-building process. However, its particular significance appears to be the production of legitimisation and operational standards for global risk management as part of global governance. By defining individual criminal responsibility for international crimes, international criminal justice develops operationalised normative standards and empirically measurable criteria for trigger events: criminal large-scale victimisation. Moreover, the system of international criminal justice sets out concepts and mechanisms to control these processes of global risk management, and limits the use of coercive means as legitimate international coercive intervention to: a) criminalizing (certain) large-scale victimisation: operational model to define thresholds of human rights violations in order to determine when victimisation or threats have become a relevant issue and ‘trigger’ actions of global governance and international intervention. b) globalising risk management: legitimate power (national or supranational) which is willing and able to protect its population from violations of international humanitarian law. Supranational mechanisms of monitoring, criminal prosecution of failures


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to protect (based on either the complementarity or primacy principle) is about to emerge. c) render state violence legitimate: definition of legitimate state violence and justified forms of large-scale victimisation (see concepts of ‘proportional force’ and ‘collateral damage’55). In order to further analyse patterns of criminal LSV as produced by the ICTY jurisprudence, this introduction on global governance, ICJ and LSV should elaborate on two competing principles which assist in explaining the ICJ-approach to LSV, and in particular possible selective tendencies which might foster the ‘victimological paradox’ mentioned at the outset of this article. The ultimate question, however, is whether this selection is systematically biased in certain interests or whether it is coincidental and remains in substance objective and neutral in providing the same level of probability for potentially relevant LSV to be prosecuted and tried in international or national criminal courts. This is whether a universal and unbiased description of mass suffering as prima facie international criminal victimisation is crucial for the trigger mechanism of international policy and judicial mechanisms. Instead of perpetuating the belief that international criminal justice is universally driven and can therefore be explained primarily by the unbiased motive of ‘fight against impunity’, we should consider a possible ambivalence of universalistic ‘end of suffering’ and the selective ‘global risk’ approach as the contrasting background against which the functioning of international criminal justice can be considered, in order to raise one’s own awareness. Yet, as mentioned earlier, this article can not provide a coherent theory on how to understand international criminal justice and punishment in the context of global governance. All I sought to highlight before eventually analysing dimensions and patterns of criminal largescale victimisation emerging in ICTY jurisprudence is that in-depth theoretical research is needed to explain international criminal justice in a globalising world as the underlying legal judicial mechanism which ‘determines’ the construction of criminal LSV. 2. ICJ’s goals and criminal LSV – linking ‘external’ and ‘internal’ perspectives 2.1 Goals of international criminal justice and the role of victims The section to follow contains some reflections on how the politics of global governance (as the ‘external’ perspective) may ‘translate’ into the functioning of international criminal justice as a judicial decision-making process (as the ‘internal’ perspective) with its specific penal goals, and how this process affects the role of victims in ICJ. From this perspective the relationship between international humanitarian policy and the penal goal is crucial for the understanding of the construction of criminal LSV within the process of international prosecution and adjudication, since it provides possible explanations for the underlying and even tacit ‘motivation’ of the major judicial actors, such as prosecutors, judges and defence counsel, but also involved professional groups such as investigators, crime analysts or legal officers who all act within a given discursive environment which is shaped primarily by powerful actors in the information society. This question of criminalisation as a constructivist process based on judicial decisionmaking would need more in-depth discussion; however it is beyond the scope of this article to engage extensively in this topic. For this paper it should be sufficient to point out that the uniqueness of international criminal justice is significantly shaped by an ‘amalgam’ of international humanitarian law concepts which embeds the international criminal justice system within international relations and politics56 and relates essentially to relationships between nation states and supranational bodies, the international order and universal human

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rights. On the other hand traditional concepts of individual criminal liability are used which focus on individual accountability for international crimes and the determination of proportional but personalised criminal punishment. The proclaimed goals of ICJ emphasise the punishment of individual perpetrators which appear as the central objective of international trials. However, in addition to the punishment of individual perpetrators another defined aim of ICJ is the satisfaction of victims and post-conflict peace-making. Thus, the retributive aspect is (although dominant) linked to the restorative aspect.57 Peace-making in post-conflict societies as a goal of international politics and global governance is therefore described as an inevitable consequence of individual punishment which should contribute to the collective satisfaction of victims.58 Yet, the collective nature of criminal LSV contrasts (or even contradicts?) the individual feature of criminal responsibility, as Drumbl concludes in his article “Collective Violence and Individual Punishment”.59 Thus, within the framework of a trial the perception of the individual perpetrator (or a group of individual perpetrators) shapes the approach to victims as the necessary basis of individual accountability and sentencing. It is the judicial construction of the crime and criminal conduct of an individual perpetrator and the determination of an individualised sentence as the main goal of ICJ which determines the ‘mechanics’ of international criminalisation and consequently the presentation of victims and victimisation within liability theories and throughout criminal procedures. The reconstruction of human suffering through international prosecution and adjudication is therefore framed by the main goal of individual punishment (see ‘retributive triangle’, Graph 1 below). Graph 1:

retributive response (primary)

perpetrator culpability

vit gra

e crim the y of

victims

gu

il t y

ple a

regaining control

restorative response (secondary)

PURPOSE OF ICJ

FACTS OF THE CRIME

How Victims & Perpetrators relate to Purposes of ICJ

„retributive triangle“ „restorative triangle“

By way of these functional triangles (‘retributive’ and ‘restorative’) the ambivalent role of victims as designed by the international criminal law and the relationship between the individual and the collective for both victims and perpetrators can be depicted. Dependent on those functional triangles, victims appear either related to a single perpetrator as part of the perpetration-narrative on which the conviction and sentence is based within the ‘punitive triangle’ – in this narrative victims’ information is part of the evidence and victims can be witnesses60, or – in the case of the ‘restorative triangle’ – victims appear as members of a


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victimised collective within a restorative process in communication with the single perpetrator as representative of a collective of perpetrators which represents the former hostile conflicting party. In this latter role victims participate in the criminal justice process and link their activities to the peace-making process in post-conflict societies. There are some crucial implications of this traditional criminal justice approach of a dichotomized victim-offender relationship. The ‘reduction’ of victims and victimisation in relation to a single perpetrator’s ‘share’ of an entirety of actual collective victimisation in order to determine individual criminal responsibility indicates the underlying and even tacit ‘driving force’ in the prosecutorial and adjudicative process of ICJ. This inevitable ‘perpetrator-bias’ appears to be an outcome of traditional penal philosophy in international criminal law which emphasises individual liability over collective victimisation and ultimately universal suffering in a purpose-means relationship. The question arises as to whether this traditional penal concept of the perpetrator-victim relationship is appropriate in light of the collective nature of perpetration and victimisation in international crimes. The fact that the Rome Statute – in contrast to the ICTY and ICTR Statute – stipulates victim participation as an active position of victims’ interest in international trials beginning at the pre-trial stage possibly indicates a shift towards a better balance in the perpetrator-victim relationship in international criminal law. Hence, the future of the ICC will show how this normative approach at the statutory level will be transferred into judicial practice. The fact that the jurisprudence of the ICTY up until now has not had a single case where Rules 105 (Restitution of Property) and 106 (Compensation to Victims) of the Rules of Procedure and Evidence have been practiced seems to indicate on the other hand that the traditional orientation towards individual liability tends to neglect victims’ interests beyond their function within the evidentiary process. Again thinking – for heuristic reasons – in terms of contrasting perspectives, the traditional focus on individual criminal liability as the ultimate goal of ICJ (‘end of impunity’) as opposed to an alternative concept which could focus on representative responses to collective human suffering (‘end of suffering’) produces different approaches of criminalisation to large-scale victimisation. The current legal design of international criminal law (in its focus on individual criminal liability) as well as the procedure of investigating and analysing potential situations tend towards (what I would like to call here) a pragmatic feasibility selection of situations, cases and individual perpetrators. Referring back to the ambivalence of universality vs. selectivity explained at the beginning of this chapter, the prosecutorial decision about target selection is conceptually determined by an underlying rational: either it starts with the universal approach of an ‘end to suffering’ and objectively links atrocities to possible perpetrators which are then reliably selected for further investigation, or the prosecutorial approach follows a case-related and perpetrator-oriented perspective and concentrates on known or wanted potential perpetrators as ‘targets’. The assumption is that the second approach risks to fail representivity of LSV within a given conflict situation since the target selection is not primarily related to potentially similar incidents of LSV caused during the conflict. For further analysis of the judicial construction process in ICJ we have next to consider the normative framework of LSV described in the provisions of material law. 2.2 Normative features of large-scale victimisation The following part deals with the provisions of the ICTY Statute (Articles 2-5) which define material forms of LSV as normative types of victimisation.

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Table 1: Statuary descriptive types of victimisation Art.

killing (a) willful killing;

2

causing bodily/ mental injury

repression

destruction/ appropriation

(b) torture or inhumane treatment, including biological experiments;

(e) compelling a prisoner of war or a civilian to serve in the forces of a hostile power;

(d) extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;

(c) willfully causing great suffering or serious injury to body or health;

(f) willfully depriving a prisoner of war or a civilian of the right to a fair and regular trial; (g) unlawful deportation or transfer or unlawful confinement of a civilian; (h) taking civilians as hostages.

(a) employment of poisonous weapons or other weapons calculated to cause unnecessary suffering;

3

2. Genocide means any of (b) causing serious bodily or mental harm to members of the group; mitted with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, such as: (a) killing members of the group; (a) genocide; (b) conspiracy to commit genocide; (c) direct and public incitement to commit genocide; (d) attempt to commit genocide; (e) complicity in genocide.

(e) forcibly transferring children of the group to another group.

(a) murder; (b) extermination;

c) enslavement (d) deportation; (e) imprisonment; (h) persecution on political, racial and religious grounds; (i) other inhumane acts.

4/2 the following acts com-

4/3

5

(f) torture; (g) rape;

(b) wanton destruction of cities, towns or villages, or devastation not justified by military necessity; (c) attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings; (d) seizure of, destruction or willful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science; (e) plunder of public or private property. (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;


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Having outlined the approach to a general understanding of ICJ as part of global governance (Part 1) and having briefly described the basic relationships of victims and perpetrators in regard to the goals and purposes of ICJ (Part 2.1), the following paragraph approaches the specific normative framework towards which this judicial construction of LSV is directed. The normative point of departure for all empirical searches for potentially criminal victimisation are the provisions in material law. Articles 2-5 of the ICTY Statute provide a descriptive typology to structure criminal large-scale victimisation. I state here that the two dimensions shown in the table above are the only more or less clear perspectives on criminal large-scale victimisation outlined in the Statute of the ICTY: first the normative characterisation of the perpetrating act as a war crime, crime against humanity, and genocide, and second, an elementary descriptive typology of victimisation such as: a) killing, b) mental and physical harm, c) repression, d) destruction and appropriation. Yet, the wording in the Articles of the ICTY Statute as well as in the RPE (Rules of Procedure and Evidence) goes beyond the empirical descriptive typology of criminal LSV inflicted on individuals, indicating the collective nature in an incomplete and abstract manner. However, the normative regulations for the ICTY do not provide a clear and consistent concept of the collective nature of both the commission of the crime as well as the victimisation beyond, for example what is meant by ‘widespread’ or ‘systematic’. Furthermore, from the historical perspective of emerging international humanitarian and international criminal law and in light of the fact that only limited case-law in regard to the above-mentioned crimes exists, this rather basic normative pattern of criminal large-scale victimisation does not reveal the social and collective dimensions of victimisation disputed at trial i.e. the conceptual and phenomenological complexity of large-scale victimisation cannot be derived directly from the wording of the provisions. This requires the introduction of further perspectives (see part 2.3) which are certainly mentioned in international humanitarian law but which are not however ‘translated’ into a consistent normative approach to the existing structure and elements of large-scale victimisation. In order to conduct an analysis of how the case-law of the ICTY determines patterns of large-scale victimisation I will introduce a preliminary descriptive model of criminal LSV derived from an explorative analysis of ICTY jurisprudence in which the interaction between individual and collective perpetrators as well as victims have been described at different social levels.

2.3 Social dimensions of criminal large-scale victimisation This paragraph gives a brief depiction of a structured descriptive approach to three levels of the prosecutorial narrative on war and other international crimes and criminal LSV: crime base (micro-level), conflict situational context (meso-level) and fundamental societal relationships (macro-level). While it is self-evident that these levels are not equally represented in the prosecution’s or ultimately the judgement’s factual narrative on war crimes and their context, knowledge of all three of those levels is generated to prove liability theories.61 In an attempt to approach the complex structure of war crimes at the level of actual victimisation and in light of the fact that the existence of a crime base with alleged large-scale victimisation triggers the international criminal process, the ‘criminological triangle’ of “motivated offenders”, “suitable targets” and “absence of guardians” as developed in the

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Routine Activity Theory62 appears to be a helpful tool – with some modifications (“absence of guardians” is enlarged to ’victim offender interaction’) – with which to approach the basic structure of international crimes. An analysis of ICTY indictments and judgements shows that this ‘triangle-approach’ can also be used to structure other levels underlying the crime base in order to grasp the complexity and context of international crimes and criminal LSV. Linking those three levels together a pyramid-structure occurs which appears to reliably represent basic relationships necessary for understanding international crimes and victimisation. Assuming the model to be fairly self-explanatory at first glance, for the purposes of this article the description can be brief. However, further research is necessary to reflect on the variety of different inter-relationships on a horizontal and vertical level. The short explanation given below focuses on the victim and victimisation perspectives, hence this model serves also as a descriptive approach to the perpetrator and conduct-interaction issue. Graph 2: Complexity & Context of International Crimes

ACT e crimse ba

VICTIM (individual)

PERPETRATOR (individual) CRIMINOGENIC INTERACTION

VICTIM GROUP(s)

t flic l con tiona a situontext c

PERPETRATOR GROUP(s)

POLITICO-SOCIETAL STRUCTURE

cieta l so entanships dam fun relatio

VICTIM MACRO-COLLECTIVE(s)

l

PERPETRATOR MACRO-COLLECTIVE(s)

Individual victimisation (crime base level): The first level of individual victimisation refers to the direct interaction (act) between individual perpetrators and victims. Yet, on this level there is usually no difficulty in perceiving victimisation as individual suffering and in recognising and observing the perpetrating victimising act. Traditional victimology offers an abundance of findings and approaches for analysing and understanding this type of victimisation. NGOs and human rights organisations as well as self-reported experiences of victims and perpetrators during trials produced a full-scale description of those atrocities in modern armed conflicts.


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For different reasons (one of which is the traditional understanding of crime as direct perpetration) the emphasis on the individual level in international criminal justice, which is in general covered by the normative framework (see Table 1), appears to be a central concern in considering victimisation by collective violence within indictment and judgement crime narratives. This explains to a certain extent why traditional techniques of investigation have been emphasised for some time while awareness of the collective nature (see next part) was less developed. Furthermore, judicial staff and decision-makers in ICJ, if not coming from international law backgrounds, come from national criminal jurisdictions and are inclined to rely on their understanding and techniques to analyse crimes as used in their home environment. Hence, the emphasis on the crime base appears ‘familiar’ in many respects Yet, the actual challenge in ICJ is to understand the collective nature of victimisation in order to properly determine issues of the gravity of the crime. Collective victimisation (conflict situational context): Multiple victimisations, clusters of victims and victim groups as well as large-scale patterns of victimisation become the central issue for ICJ when it comes to determining individual responsibility for initiating and enforcing a violent policy as the cause of mass atrocities. Although it appears clear by definition that victims of collective violence are ‘collective victims’, the history of the Genocide Convention shows the difficulties encountered when it comes to determining qualitative and quantitative dimensions of collective elements of victimisation. As the related discourse on quantifying criminal LSV shows,63 there is a controversial debate on how to measure the collective dimension of victimisation when establishing individual criminal liability. For the time being there are no tested standards for the reliable description of patterns of criminal LSV. Different approaches have been applied so far to measure patterns of mass killings.64 The collective nature of the crimes set out in Articles 2-5 refers to LSV as well as to concerted perpetration of those crimes. In particular crimes against humanity reflect these two sides with the definition of ‘widespread’ (patterns of victimisation) and ‘systematic’ (collective perpetration). The case law of the ad hoc tribunals provides descriptions of perpetrator groups, their emergence and offensive conduct. Yet, in order to legally embrace systematic collective perpetration of international crimes, this concept is not mirrored by a victimological approach which systematically reflects the victimising results of those perpetrator interactions. Consequently, the legal concept of ‘Joint Criminal Enterprise’ as developed during trials65 should be accompanied and contrasted by an appropriate concept of ‘Large-Scale Criminal Victimisation’. While the approach of ‘Joint Criminal Enterprise’ aims to represent all significant forms of criminal participation in the victimising act and therefore not to allow potential perpetrators to escape individual responsibility, the concept of ‘Large-Scale Criminal Victimisation’ should in principle guarantee appropriate representation of all significant victim issues and victim needs. Furthermore, there is a socio-political context ‘behind’ the victim, perpetrator groups and their behaviour which is defined as ‘criminogenic interaction’ (see Graph 2). This complex refers to latent relationships which in themselves are not part of the elements of the crimes but represent the ground on which criminal collective violence ‘grows’, and which explain the ultimate occurrence of atrocities. This issue relates to social interactions and relationships which finally ‘produce’ the opposed victim and perpetrator groups as hostile parties. For example, the restructuring of armed forces for armed conflicts and the preparation of military personnel with a clearly violent and hostile attitude prepare the ground on which international crimes can emerge. The issue of ‘criminogenic interaction’ can also refer to the policies and actions (even criminal) of the victim group which has an impact on an enhanced violent approach of the opposing conflicting party.

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Humanitarian victimology has the challenge of developing reliable methodological approaches to this issue and suggesting reliable methods. By doing so it will contribute to the unbiased reconstruction of the historical truth surrounding mass atrocities. The importance of this task cannot be overestimated in light of practices of misinterpretation and denial of LSV. Societal victimisation (fundamental societal relationships): On a third level criminal LSV refers to macro-collectives to which the individual and collective victims (level one and two) belong such as ethnic or religious groups. Thus, this level refers to victimising effects which go beyond the physical victimisation of directly affected individuals and groups. This could be members of the same ethnicity not living in the conflict region at the time of the conflict, this could be individuals of successive generations who process and transfer the suffering of the actual victims in their cultural narrative. New conflicts are ideologically and motivationally related to those maintained victimisation feelings among macro-collectives. Moreover, the intrinsic nature of large-scale victimisation as defined by international criminal law requires the normative reference to the international community as the affected human entity (obvious in the formulation ‘crimes against humanity’). From this perspective it can be said that humankind or basic interests of international order are violated and victimised. Reference to this value-related dimension is mainly made in the context of justifying the purpose of ICJ and its sentencing practices.66 With regard to the perpetrator, the macro-level explains the underlying long-term historical and cultural fabric which ‘produces’ collectively committed violence against other groups. For example, in the case of Nazi Germany Hanna Arendt gave an in-depth description of those relationships in her book “The Origins of Totalitarianism”.67 The issue of “Political-Societal Structure” relates to overarching societal relationships which explain collective violence in the light of general historical developments such as system confrontation in modernity or globalisation and post-modern state of collective violence and war.68 At this level, victim and perpetrator collectives as well as third parties and the international community must be analysed in terms of their interaction and impact on the emergence of collective violence.

3. Criminal LSV and the construction of criminal liability – ‘internal’ perspective 3.1 Bringing together perpetrators’ liability and victims: a general linkage model So far, I have tried to reflect on the context and construction process of criminal LSV by ICJ from different basic perspectives: considering an ‘external’ perspective should help to understand ICJ in the context of global governance. Then, referring next to the relationship between the goals of ICJ and the dimensions of LSV in reaching those goals alongside normative-descriptive LSV-dimensions of killings, physical and mental harm, repression, destruction, and social dimensions of LSV at individual, group, and societal levels makes it possible to construct LSV during international criminal procedures. Finally, the question arises as to how all these perspectives are integrated and linked into the practical criminalisation process and the construction of the narrative of individual criminal liability. The operational model presented below (Graph 3) shows a first approach to explaining the constructionist prosecutorial and adjudicative process where the two sides of the crime, victims and victimisers, are contextualised and linked within a structured consistent narrative on the individual criminal liability of the victimisers. It eventually integrates the three underlying perspectives briefly explained in part 2: the functional-purpose related approach,


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the normative types of victimisation, and the social modelling of victim-victimiser interaction at a micro-, meso- and (to a limited extent) macro-level. Thereby it operationalises the underlying processes in the construction of criminal LSV as a means by which to determine individual criminal responsibility for international crimes. To be very clear: the limited focus on the forms of LSV as represented within the jurisprudence of international courts does not make it possible to understand large-scale manmade suffering per se. This is due to the fact that international criminal justice does not prosecute and try perpetrators of large-scale victimisation based on the mere existence of mass-scale sufferings. As outlined above, international prosecution is based on criminal policy decisions which aim to establish individual criminal responsibility for atrocities investigated on a prima facie level.69 Along with the prosecutorial process, starting with the ‘trigger process’70, and proceeding to the prosecution and adjudication of perpetrators, the judicial decision-making process ‘oscillates’ between victims/victimisation and perpetrator/perpetration. Yet, the relationships between these two sides develops in an particular way: while initial prosecutorial activities appear to be mainly triggered by prima facie perceptions of gross human rights violations, arrest warrants and indictments focus both on single perpetrators and the practical feasibility and final justification of the entire prosecutorial approach. Consequently, throughout the judicial process the scope within which LSV is selectively embraced becomes more and more linked to those victimising events which are functionally related to selected perpetrators and which can be presented at court based on reliable and admissible evidence. Again, in order to understand the fragmented nature of international criminal victimisation as a construct which reflects upon actual victimisation we have always to keep the driving underlying ‘motive’ behind international criminalisation in mind: to establish individual criminal responsibility for selected single perpetrators. As already pointed out, therefore, the design of international criminal law and justice determines victim issues as a function of individual criminal liability. In other words, the analysis of victimisation and victims in the context of international criminal justice is focussed on – not to say limited to – its function in constructing crimes. Consequently, the (selective or fragmented) patterns of victimisation and groups of victims determined in the course of criminal prosecution and adjudication in ICJ can only be understood as a result of this process. The approach to victims and victimisation within a prosecutorial strategy of constructing individual criminal liability is per se instrumental to the end of criminalising victimisers. It appears obvious how the different dimensions developed in part 2 (victim/perpetrator and goals of ICJ; normative criminal LSV dimensions, social dimensions of criminal LSV) correspond to the following Complexity Level Model (CLM). Perpetrators and their conduct at all leadership levels are systematically linked to victims and victimisation. All perpetrator activities (events) can be traced in relation to specific victimisations as well as in regard to other perpetrators’ acts. Yet, victimisations (crime base level) are substantially defined by the provisions of material international criminal law. Finally, the social dimensions of criminal LSV (see Graph 2) are reflected in the three basic levels of the Complexity Linkage Model: ‘Crime Base’ corresponds with ‘Crime Base Level’, ‘Conflict Situational Context’ relates to ‘Common Scheme/Special Common Scheme Level’, and ‘Fundamental Societal Relationships’ refer to ‘Situation Level’. The scheme below attempts to embrace this functionality and depicts basic relationships between victims/victimisation and perpetrator/perpetration as constructed within liability theories presented in indictments of the ICTY. Moreover, this generic model of complexity levels in war crime liability theories functions as a Grounded-Theory-Approach which describes the oscillating comparative process between a preliminary liability theory on the one hand and data representing (criminal) past reality on the other, which is tested at different stages of the judicial process beginning with fact-finding missions, indictments,

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amended indictments, pre-trial briefs, opening statements, judgements of acquittal, final prosecution and defence briefs, TC judgements, AC judgements in a multi-actor setting (prosecution, defence, chambers). The scheme is a result of deconstructing ICTY indictments to determine the structure of the evidentiary narratives in order to establish the factual-descriptive (as opposed to normative-prescriptive) side of liability theories. Although this structure should have some general meaning to help understand any given modern violent collective conflict, it relates specifically to the Yugoslav conflict as reflected within the prosecutorial perspective and can reliably only be interpreted against this backdrop. Graph 3:

SITUATION LEVELS

HIGHER LSL

SITUATION (Yugoslav Conflict)

design, plan, control of armed violence

CS III

CS I

preparation pro-active

MEDIUM LSL

contextual actions re-active

CS II

SCS 1 SCS 3 financing SCS 2 instigatransfer, reorg. tion implementation execut. of design

offensive campaign

SCS 1 reburial SCS 2 concealment

SCS SCS SCS SCS SCS SCS SCS SCS SCS 2 3 1 execu4 5 6 7 8 9 dis-

attacks

EXECUTIONER

tions

plac.

camps

execution

CB 1

CB 2

CB 3

CB 4

CB 6

deport. destruc. opress. unlawf. pros.

CB 5

CB 8

CB 9 CB10

CB 7 CB11 CB12

VICTIMISING EVENTS

terror

CBn

ENFORCEMENT IMPLEMENTATION DESIGN EVENTS

Levels of Complexity in Situations of Collective Violence PERPETRATOR / PERPETRATION

First, the Situation-Level refers to the general violent and hostile design of conflict parties (or one offensive party). Actors at this level usually belong to the highest leadership levels. They create, draft and announce a violent plan and design for their party as an approach to another conflict side. They also usually determine a decision-making process which materialises the abstract militant design into a network of perpetrating institutional forces, an offensive campaign, and facilitating supportive contextual actions. Second, these significant and initial actions to implement violent strategies are represented at an intermediate level as Common Schemes I, II, III. Common Scheme I: Perpetrating Structure reflects the preparation of a coercive structure and its material bases which allows for a systematic violent approach towards the hostile party. Common Scheme II: Offensive Campaign represents the core element of systemic and collective violence based on which individual criminal liability theories can be constructed. Common Scheme II links the creation and implementation of a collective violent design to the crime base where the mass atrocities are finally committed. Systemic criminal offences or campaigns are often accompanied by contextual actions, represented in the Linkage Model in Common Scheme III. These contextual actions are often meant to disguise the criminal nature of the systemic violence, e.g. concealment or reburials. The Common Scheme level is sub-structured in Specific Common Schemes which describe more concrete areas of implementation. ‘Situation’ and ‘Common Schemes’ represent the two upper levels in the hierarchical-systematic structure of the commission of criminal collective violence where indirect perpetrators (actors who are involved in the commission of an international crime without participation in


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the direct victimising act) at different levels of responsibility and leadership act in various events to design and enforce the violent strategy. A causal-functional relationship between those events down to the conduct of the direct executioners must exist and has to be shown if the individual criminal liability of an indirect perpetrator is to be established. Third and finally, all these systematically structured relationships between perpetrators must eventually be linked to patterns of mass-scale victimisation. The generic design of a collective violent policy will be executed by directly victimising acts which constitute the Crime Base. And here we finally arrive at a level where the manmade mass suffering of human beings is ‘transformed’ into criminal LSV by functional linkage to responsible perpetrators from direct actors (executioners) to indirect actors (commanders and ‘higher ups’). What becomes obvious in this operating model is the instrumental role of victimisation within the construction of individual liability theories in international criminal justice. Consequently, the shape of criminal LSV as produced during the evidentiary process to prove individual criminal liability depends directly on this specific construction process. 3.2 ‘Shaping’ criminal LSV as a material basis for liability theories The prosecution theory on how to present the ‘Offensive Campaign’ determines the structure and pattern of victimisation incorporated as part of the Crime Base, first in the indictment but eventually within the judgements’ narrative of the facts of the crime. The Offensive Campaign (CS II) unfolds into a variety of Specified Common Schemes (SCS) which direct the organised coercive forces of perpetrators to specific target groups in order to enforce the original design (functional approach) or as separately emerging patterns of similarly directed offences (structural approach) to reach its anticipated purpose. Most importantly, these Specified Common Schemes pre-shape the approach to collective victimisation as described in the prosecution theory. For example, the prosecutorial decision to indict individual criminal liability for camp-related crimes as crimes against humanity (which requires proof of the ‘widespread or systematic’ nature of the crimes) determines investigative strategies towards victims and therefore whether potentially existing patterns of widespread victimisation will be proven or not. Specified Common Schemes mark the ‘translation’ of the intentionally organised and structured violent offensive campaigns into certain ‘appropriate’ patterns of crime bases which ‘produce’ certain victimisations on the ground. However, being aware of the fact that liability theories are constructs which arise out of politico-judicial decision-making we have to remember that descriptions of victimisation within these theories are meant to support the functional link to the culpable conduct of victimisers. This means that the purpose relationship between victimisation and perpetration bears the risk of marginalising victims’ suffering if, in the course of the inevitable selection and reduction of crime bases and therefore victims, significant parts of the historical entirety of the LSV remain unrepresented. As the jurisprudence of the ICTY shows in cases of plea agreements, imbalanced reflections of victimisation should be avoided by comprehensively covering and describing the crime base for which the accused has been held responsible. This shift from the perpetrators’ to the victims’ perspective in the transition from the Offensive Common Scheme level to the Crime Base level marks a threshold in the change of operational principles. While the Situation and Common Scheme levels are to be operationalised as a function of the systemic-coercive system of collective violence designed for the purpose of gaining resources by controlling territory and population, the Crime Base/Victimising Act are considered from a predominantly victimological perspective. The overall violent design and preparation of perpetrating institutional forces71 basically comes down to the image of survival threats between two (or more) groups, this is between the identities of ‘own’ and ‘others’. Ultimately, an open and massive offensive campaign

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‘appears’ in the perspective of one or all conflicting parties as the only solution for maintaining or gaining control over territory and population by victimising the ‘other’ through oppression and even destruction. The structure of the Common Schemes is then designed to finally gain physical control through open collective violence. In the logic of the violent strategy of perpetrators, at one point the prepared perpetrating institutional forces have to be turned toward the hostile ‘other’ in order to control territory and population by means of violence. The structure and nature of the Special Common Schemes finally disclose and present the actual nature of the overall conflict design of the conflicting parties. As a first result of an analysis of ICTY indictments from a prosecutorial perspective the following Special Common Schemes (sub-categories under Offensive Common Scheme, see Linkage Model Graph 3), which constitute collective patterns of victimisation, could be preliminarily identified (with examples of specific forms of victimising acts) as following: • attacks: resulting in killings, bodily and mental injuries and destruction; • mass executions: resulting in death, very exceptionally in injuries; • forced removals, forced displacements: killings, resulting in physical and mental injuries; • camps, detention, forced labour: resulting in killings, physical and mental injuries; • displacement, deportation, transportation: resulting in physical and mental injuries; • wanton destruction, lootings, appropriation: resulting in physical destruction; • acts of oppression: resulting in mental injuries, appropriation; • unlawful prosecution: resulting in physical and mental harm; • terrorising populations: resulting in killings and physical and mental injuries. Although closely related and practically overlapping, these Special Common Schemes can be differentiated by the central conceptual direction given by the perpetrators. These Special Common Schemes as described as part of the prosecution narratives appear to have a major underlying direction. This ‘direction’ is a result of the criminal design which is finally executed by the perpetrators and eventually results in specific patterns of victimisation on individual and collective levels. The enforcement of these Special Common Scheme designs takes place within different Victimising Acts which constitute the Crime Base. These Victimising Acts can be described as immediate processes of victimisation in the interaction of groups of perpetrators in a related context of time and space. Offensive SCS are realised within distinct events and incidents related to actors, locations and times, characterised by specific modus operandi and ‘producing’ those four types of direct victimisations determined by the substantial international criminal law (ICTY Statute) as trigger-events for the criminalisation process: killings, bodily and mental harm, repression, destruction/appro-priation. However, the actual nature of those distinct individual victimisations lies in their destructive capacity with regard to vitality dimensions of collective existence of a group of people. These existential dimensions of victimisation can be described against the backdrop of ICTY jurisprudence as: 1) life: victimisation of individuals, threat of physical existence as members of a group through killings or mass-scale physical and mental harm (in particular vulnerable groups, children, women, elderly, POW); 2) basic social relationships: victimisation of existential group relations and social institutions through repression and destruction (destruction of communities, neighbourhoods, families); 3) material basics of life: destruction of vital living conditions (destruction of dwelling structures, e.g. water and energy supply);


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4)

cultural identity: victimisation of identity group values and beliefs (destruction of symbolic institutions of racial, ethnic or religious identity and cultural values, e.g. churches, mosques); 5) environmental trust: threat to normal life functions (life-paralyzing techniques of violence such as terrorizing populations by sniping or arbitrary shelling). These five basic vitality dimensions have been derived from jurisprudence to reflect the collective dimensions of victimisations caused by criminal acts prosecuted by the ICTY on a merely descriptive basis. Further victimological research should produce a conceptually based approach to collective dimensions of criminal LSV.

4. Research issues and conclusions 4.1 Research issues Following a constructivist perspective this paper attempted to draw a line between three rather complex levels related to the construction process of criminal LSV in international criminal justice. A conceptual line has been drawn from globalisation and global governance over the role of the emerging system of international criminal justice and the relationship between the purpose of individual criminal responsibility, punishment and LSV to the factual determination of concrete dimensions of victimisation within tribunals’ jurisprudence to mark the overwhelming complexity of issues necessary for understanding criminal LSV which, after all, appears so ‘simple’ in judgements, public comments and presentations in mass media focussing on mass-scale death and destruction. Yet, other approaches would produce even more levels and issues. Along those conceptual baselines some major research issues can be defined for humanitarian victimology: 1) Global governance, ICJ, and criminal LSV: This external perspective ultimately refers to the question of how international and human rights politics ‘translate’ into international criminal law and justice and what role victims play in that process. This raises basic questions with regard to the relationship between sovereignty, power, law, legality, legitimacy and the role and meaning of criminalising LSV, this is how political is the judicial definition and practice of criminal LSV, ‘atrocity management’ and ‘olympics of victimisation’ vs. ‘end of suffering’. This set of research issues requires theorising ICJ in the context of globalisation and global governance, conceptualising the construction of criminal LSV as a function of these transitional global processes (legitimisation and operational standards for global risk management). 2) ICJ and the construction of individual criminal responsibility: Within the realm of ICJ (internal perspective), material concepts and definitions and procedural rules and mechanisms are set up to organise and facilitate the practical every-day construction process and ‘production’ of international crime and criminal LSV which explains how LSV becomes criminal LSV. Basic research questions refer to: • objectives and purposes of ICJ, including sentencing and practice of plea agreements and the ‘instrumental’ role of victims as both victimised participants during the conflict and witnesses or recipients of justice in post-conflict societies, particularly the relationship between retributive and restorative goals, • understanding ICJS as a constructivist judicial decision-making process with multiple actors;

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• •

•

analysing the institutional and personal side of the construction process within daily routines of professional behaviour; inferences from the complexity of levels and relationships relevant to establishing individual criminal responsibility for legislation in international criminal law to frame normative elements of international crime beyond the more rudimentary descriptions in the ICTY Statute of crime base-related aspects of victimisation; and furthermore research is needed into both perpetration and perpetrators as well as victimisation and victims on the individual, collective and societal level, including historical victimological research into tacit patterns of victims’ feelings among populations embedded within a ‘cultural grammar’ which reproduces stereotypes of victimperpetrator relationships to other populations or groups.

3) First empirical patterns of LSV in the jurisprudence of the ICTY The jurisprudence of international tribunals shows the materialised result of all political and judicial activities and mirrors the original goal and agenda setting of the criminalising process. Therefore, the analysis and deconstruction of the jurisprudence and final judicial decisions can play a key role in reflecting the factual functioning of the entire politico-judicial machinery and the activities of its actors which very often appears to be unstructured and vaguely systematic, in particular when new issues have to be solved. An in-depth analysis of the jurisprudence (based on comprehensive qualitative text analysis) is inevitable in order to show patterns in the construction of criminal LSV which could be systematically analysed for further legislation and produce guidance and orientation for practical judicial decision-making for all actors involved. 4.2 Summary on contrasting perspectives of universal protection vs. risk management If we understand the final result of defining criminal LSV through the international criminal justice as a result of manifold factors in a transitional globalising process, the two contrasting perspectives (see part 1.3) can help to raise awareness of the nature of these processes; a) the universal approach of an obligation to protect populations from gross human rights violations (here exemplified with the concept of “Responsibility to Protect”) and b) an interest-related approach which triggers international prosecution only when interests as defined by the international community are disturbed (here depicted with the approach of “Empire” from Negri and Hardt). Against the backdrop of these two contrasting perspectives, ICJ can be analysed in its response to LSV. •

•

At the level of legal-normative design (substantial and procedural international criminal law) differences between the two approaches appear less serious due to the abstract and generic nature of law (although they do exist as can be seen in the case of victim participation). The normative definition of international crimes is rather ‘neutral’ with regard to interests, thus if there are major interest-related influences they should not be expected to be obvious at the normative level. Differences may become obvious at the prosecutorial decision-making level in the selection of situations, cases and finally accused which in turn are linked to crime bases and victims in the prosecution theory, and in the decision to allocate resources during investigation and at trial and therefore setting possibilities for and limitations to the production of complex evidence.


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•

If there is an interest-related impact differences may become visible at the level of liability theories and empirical proof of victimisation which can be increased through adversarial elements in the procedure of the trials. Liability theories as presented in indictments and finally in judgements should be balanced and represent potentially responsible individuals in a representative way in the context of the totality of the conflict in question. And this closes the circle on the question raised in the introduction: how can ICJ contribute to putting an end to (what I called at the beginning of this article) the ‘victimological dilemma’, which is to establish a universal understanding of large-scale human suffering – no matter who suffers? There are two answers contained in this paper: First, to apply the developed material definitions of criminal large-scale victimisation to all relevant gross human rights violations as man-made LSV. This is a matter of taking an unbiased and transparent evaluation of the suffering and from there searching for the offenders and approaching them by means of international justice (trigger process). Secondly, the emerging system of international criminal justice needs to be reviewed in order to avoid and overcome the disadvantages of the selective-reductionist approach to suffering, which refers primarily to the prosecutorial decision-making process and to the practical procedure of developing liability theories and their proof in the course of the evidentiary process. From this perspective the active participation of victims at all stages of the trial becomes highly significant. Victim participation should support an unbiased presentation of victims’ interests in the criminal justice response to criminal LSV and should serve to monitor the proceedings. Furthermore, it appears that a situation-related (instead of case-related) approach, along with the concept of material truth, rather than providing a simplified understanding of an adversarial approach whose primary aim is that of convictions, would embrace the overall need to understand and therefore analyse the nature of the conflict with appropriate means, thereby preventing biased approaches and misrepresentation of the conflict and providing a basis for reconciliation. [1] S. Cohen, States of Denial: Knowing About Atrocities and Suffering (Cambridge 2001). I. Markovits, ‘Selective Memory: How the Law Affects What we Remember and Forget about the Past – The Case of East Germany’, 35 LAW & SOCIETY REVIEW, (2001) pp. 513-564. [2] J. Hagan, W. Rymond-Rychmond, P. Parker, ‘The Criminology of Genocide: The Death and Rape of Darfur’. 43/3 Criminology (2005) pp. 525-561. The authors object the assessment of the UN appointed International Commission of Inquiry on Darfur, led by the former president of the ICTY, Antonio Cassese, which came to the ‘definite’ conclusion “that the Government of the Sudan has not pursued a policy of genocide” (p. 534). [3] AI Report, Cruel. Inhuman. Degrades us all. Stop torture and ill-treatment in the ‘War on terror’, AI-Index: ACT 40/010/2005. London 2005. [4] Notes and Commends, ‘The Right of War Crimes Victims to Compensation before National Courts’, 3/1 Journal of International Criminal Justice (2005) pp. 187-267. [5] Denzin, N. K., Lincoln, Y. S., eds., Handbook of Qualitative Research (London 2000) pp. 221, 297, 955. [6] R. Norton-Taylor, ‘Troops bound by human rights law, say judges: Appeal court extends ban on degrading treatment: Army inquiries into Iraqi civilian deaths criticised’, The Guardian, (22 December 2005) p. 4. [7] E. S. Herman, ‘Missing Bodies, Or Atrocities Management’, Znet, Daily Commentaries, http://www.zmag.org/ZSustainers/ZDaily/1999-10/25herman.htm. G. Kaplan, ‘The Genocide Problem: ,Never Again’ All over Again’, The Walrus Magazin, Oct. 2004. R. W. Merry, ‘Sands of Empire: Missionary Zeal, American Foreign Policy, and the Haz-

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ards of Global Ambition’ (New York 2005). J. Bricmont, Impéralisme humanitaire. Droits de l'Homme, droit d'ingérence, droit du plus fort? (Aden 2005). [8] Markovits, loc. cit. L. Douglas, The Memory of Judgement.Making Law and History in the Trials of the Holocaust (New Haven and London 2001). E. S. Herman, N. Chomsky, Manufacturing Consent. The Political Economy of the Mass Media (New York 1988). G. Gilligan, J. Pratt eds., Crime, Truth and Justice. Official inquiry, discourse, knowledge (Portland, Oregon 2004). [9] Vidoje Blagojević, Dragan Jokić, Trial Judgement, para. 818, Case Number: IT-02-60T (17 January 2005). [10] N. Hasić, ‘Genocide, Unfortunately, Pays Off! ’Blind Justice’, a documentary film speaking about victims of war crimes and disappointments with ICTY judgments’, Slobodna Bosna (Sarajevo 9 December 2004) pp. 62-63. [11] D. Garland, The Culture of Control. Crime and Social Order in Contemporary Society (Chicago and Oxford 2001) pp. 9-12. [12] T. Newburn, R. Sparks, eds., Criminal Justice and Political Cultures. National and international dimensions of crime control (Cullompton 2004). B. W. Kingsbury, ‘The International Legal Order’ (2005), New York University School of Law, The Berkeley Electronic Press, http://lsr.nellco.org/nyu/plltwp/papers/6. [13] M. Ch. Bassiouni, ‘Appraising UN Justice-Related Fact-Finding Missions’, 5/35Journal of Law & Policy (2001) pp. 35-49. Roberts, N. McMillian, ‘For Criminology in International Criminal Justice’, 1 Journal of International Criminal Justice (2003) pp. 315-338. C. Stahn, ‘Complementarity, Amnesties and alternative Forms of Justice: Some Interpretative Guidelines for the International Criminal Court’, 3 Journal of International Criminal Justice (2005) pp. 1-26. J. Hagan, Justice in the Balkans: Prosecuting Crimes of War in The Hague Tribunal (Chicago 2003). [14] Ch. Ku, Global Governance and the Changing Face of International Law (Puebla, Mexico 2001). ACUNS, 2 Reports & Papers (2001). J. Sills, ‘The Role of the United Nations in Forming Global Norms’, 2 International Relation Studies and the United Nations Occasional Papers (2002). P. Schiff Berman, The Globalisation of Jurisdiction, 13 University of Connecticut School of Law Working Papers Series (Connecticut 2002) [15] Security Council, ‘Resolution 827’, Adopted 25 May 1993, S/RES 827 (1993). [16] G. Agamben, Homo sacer. Die souveräne Macht und das nackte Leben (Frankfurt am Main 2002) pp. 25-40. [17] United Nations General Assembly, Report of the International Criminal Court (1 August 2005). A/60/177. [18] G. Agamben, loc.cit., p.50. [19] Preamble, Rome Statute of the International Criminal Court, (2002). D. Zolo, ‘Peace through Criminal Law?’, 2 Journal of International Criminal Justice (2004) pp. 727734. [20] R. Goldstone, ‘Bringing War Criminal to Justice during an Ongoing War’, in J. Moore, ed., Hard Choices, Moral Dilemmas in Humanitarian Intervention (Lanham 1998) p. 198. [21] I. Tallgren, ‘The Sensibility and Sense of International Criminal Law’, 13/3 European Journal of International Law (2002) pp. 561-595. [22] B. Simma, A. Paulus, ‘The ‘International Community’: Facing the Challenge of Globalization’, 9 European Journal of International Law (1998) pp. 266-277. [23] CH. W. Mullins, D. Kauzlarich, D. Rothe, ’The International Criminal Court and the Control of State Crime: Prospects and Problems’ 12 Critical Criminology (2004) p. 286. [24] J. Hagan, loc.cit., 2003 [25] CH. W. Mullins, D. Kauzlarich, D. Rothe, loc.cit.,P. 305


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[26] J. Hagan, R. Levi, ‘Social Skill, the Milosevic Indictment, and the Tebirth of International Criminal Justice’, 1/4 European Journal of Criminology pp. 445-475. [27] R. Henham, Conceptualizing Access to Justice and Victim’s Rights in International Sentencing (London, Thousand Oaks, CA, New Delhi 2004). M. Drumbl, ‘Collective Violence and Individual Punishment: The Criminality of Mass Atrocity’, Northwestern University Law Review, (Winter 2005). CH. W. Mullins, D. Kauzlarich, D. Rothe, loc.cit. [28] M. A. Drumbl, loc.cit.,Pp. 542. [29] CH. W. Mullins, D. Kauzlarich, D. Rothe, loc.cit., P. 286. [30] R. Henham, ‘Some Issues for Sentencing in the International Criminal Court’, 52 International and Comparative Law Quarterly, (January 2003) p. 86. [31] B. A. Hudson, ‘Understanding justice. An introduction to ideas, perspectives and controversies in modern penal theory’ (Buckingham Philadelphia 1996) p. 152. [32] U. Beck, Risk Society, Towards a New Modernity (London 1992) [33] B. A. Hudson, loc.cit., P.152, 153 [34] D. Garland, loc.cit., P. 23 [35] B. A. Hudson, loc.cit., P. 153 [36] D. Garland, loc.cit., Pp.139 [37] Z. Bauman, Community: Seeking Safety in an Insecure World, Cambridge 2001 [38] M. C. Williams, ‘Word, Images, Enemies: Securitization and International Politics’, 47 International Studies Quarterly (2003) pp. 511-531. [39] D. C. Gray, ‘An Excuse-Centered Approach to Transitional Justice’, 27 The Berkeley Electronic Press. Duke University School of Law, The Berkeley Electronic Press (2005) http://lsr.nellco.org/duke/fs/papers/27. [40] A. Eser, J. Arnold eds., Strafrecht in Reaktion auf Systemunrecht. Vergleichende Einblicke in Transitionsprozesse (Freiburg 2000). [41] Report, ‘The Responsibility to Protect. Report of the International Commission on Intervention and State Sovereignty’, (Ottawa 2001). [42] M. Hardt, A. Negri, Empire (Cambridge 2000). [43] Report, loc.cit., P. 1. [44] Report, loc.cit., Pp. 5-7. [45] Report, loc.cit., P. 8. [46] Report, loc.cit., P. VIII, 11-18. [47] Report, loc.cit., Pp. 21-28. [48] M. Hardt, A. Negri, loc.cit., p. 22: “War as the foundation of politics must itself contain legal forms, indeed must construct new procedural forms of law.” “The contemporary imperial regulative state of war, in contrast, reproduces and regulates the current order; it creates law and jurisdiction from the inside. Its legal codes are strictly functional to the constant reordering of imperial territories.” [49] M. Hardt, A. Negri, loc.cit., p. 32) [50] M. Hardt, A. Negri, loc.cit., p. 12) [51] M. Hardt, A. Negri, loc.cit., p. 17) [52] M. Hardt, A. Negri, loc.cit., p. 12) [53] M. Hardt, A. Negri, loc.cit., p. 15) [54] M. Hardt, A. Negri, loc.cit., p. 16) [55] J.-M. Henckaerts, L. Doswald-Beck eds, Customary International Humanitarian Law (Cambridge 2005). [56] See J. Hagan, R. Levi, G. Ferrales, ‘Swaying the Hand of Justice: The Internal and External Dynamics of Regime Change at the International Criminal Tribunal for the For-

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mer Yugoslavia’, paper at the Symposium on “Law between Globalization and National Institutions” (2004). [57] M. Findlay,R. Henham, Transforming International Criminal Justice. Retributive and restorative justice in the trial process (Portland, Oregon 2005). [58] United Nations General Assembly, loc.cit., p. 12). [59] M. A. Drumbl, ‘Collective Violence and Individual Punishment: The Criminality of Mass Atrocity’, 4/1 Washington & Lee Public Law Research Paper (2005). [60] E. Stover, The Witnesses. War Crimes and the Promise of Justice in The Hague (Berkeley 2003). [61] R. May, M. Wierda, International Criminal Evidence (New York 2003). [62] M. Felson, Crime and Everyday Life (Thousand Oaks, CA, 2002). [63] D. Alonzo-Maizlish, ‘In Whole or in Part: Group Rights the Intent Element of Genocide, and the ‘Quantitative Criterion’, New York University Law Review (2002). [64] D. Ball, W. Betts, F. Scheuren, J. Dudukovich, J. Asher, Killings and Refugee Flow in Kosovo March – June 1999. A Report to the International Criminal Tribunal for the Former Yugoslavia, (New York, 3 January 2002). H. Brunborg, E. Tabeau, ‘Demography of Conflict and Violence: An emerging Field’, 21 European Journal of Population, (2005) pp. 131-144. [65] V. Haan, ‘The Development of the Concept of Joint Criminal Enterprise at the International Criminal Tribunal for the Former Yugoslavia’, 5 International Criminal Law Review (2005) pp. 167-201. [66] Ch. Bassiouni, ‘Appraising UN Justice-Related Fact-Finding Missions’, 5/35 Journal of Law and Policy (2001) p. 45. [67] H. Arendt, The Origins of Totalitarianism (Orlando 1966). [68] J.-J. Frésard, The Roots of Behaviour in War. A Survey of the Literature, (Geneva 2004). Y. Sadowski, The Myth of Global Chaos (Washington 1998). [69] Ch. Bassiouni, loc.cit.. [70] H. Olásolo, The Triggering Procedure of the International Criminal Court, (Leiden 2005). [71] D. Kauzlarich, R. A. Matthews, W. J. Miller, ‘Toward a Victimology of State Crime’, 10 Critical Criminology (2002) p. 187.


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Experiences of the Victims and Witnesses Section at the I.C.T.Y. Wendy LOBWEIN* Abstract. This paper will give an introduction to the International Criminal Tribunal for the former Yugoslavia (ICTY), and will provide an outline and description of the work of the Victims and Witnesses Section (VWS) of the ICTY, in particular, the work of the Support Unit. The views expressed herein are those of the author alone and do not necessarily reflect the views of the ICTY or the United Nations.

1. Introduction to the Tribunal The International Criminal Tribunal for the former Yugoslavia was established by resolution 827 of the United Nations Security Council on 25 May 1993 and is based in The Hague, The Netherlands. The ICTY is the first international criminal court ever established by the United Nations Security Council and is mandated to prosecute “persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991”. To establish a Court was unique and extremely challenging. By establishing the ICTY, the Security Council aimed to achieve four principal objectives, namely, to bring to justice those responsible for violations of international humanitarian law, to render justice to the victims, to put an end to the crimes being committed in the former Yugoslavia and to contribute to the restoration of peace by promoting reconciliation in the former Yugoslavia. The ICTY has jurisdiction over natural persons who allegedly committed grave breaches of the Geneva Conventions of 1949, violations of the laws or customs of war, genocide, or crimes against humanity on the territory of the former Socialist Federal Republic of Yugoslavia since 1 January 1991. The ICTY can only prosecute natural persons and not organisations, political parties, administrative entities or other legal subjects. The ICTY and national courts have concurrent jurisdiction over serious violations of international humanitarian law committed in the former Yugoslavia. However, the ICTY can claim primacy over national courts, and may take over national investigations and proceedings at any stage if this proves to be in the interests of international justice. The Tribunal is an independent and impartial body. It is not one organisation, it consists of three separate organs: the Chambers, the Office of the Prosecutor and the Registry. These all operate independently of one another. The Chambers, consisting of three Trial Chambers and one Appeals Chamber, are composed of independent judges with different nationalities, none of them coming from the former Yugoslavia, representing the main legal systems in the world. The judges hear testimonies and legal arguments, decide on the innocence or the guilt of the accused and pass sentences or acquittals. In addition, they draft and adopt the legal instruments regulating the functioning of the ICTY, such as the Rules of Procedure and Evidence. The Chambers are supported by a number of legal officers and administrative staff. *

I.C.T.Y.

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W. Lobwein / Experiences of the Victims and Witnesses Section at the I.C.T.Y.

The Office of the Prosecutor conducts the investigations and the prosecution of persons falling within the ICTY’s jurisdiction. The Office of the Prosecutor (OTP) operates independently of the Security Council and of any state or international organisation. OTP staff are experienced police officers, crime experts, analysts, lawyers and trial attorneys, and conduct investigations (by collecting evidence, identifying witnesses, exhuming mass graves), prepare indictments and present cases before the judges of the Tribunal. The OTP is supported by a number of administrative staff, including translators and interpreters. The Registry is responsible for the administration and management of the Tribunal, servicing both the Chambers and the Prosecutor. This includes the provision of assistance and protection to victims and witnesses through the VWS. The Registry is responsible for the administration and judicial support services of the Tribunal, including the translation of documents and the interpretation of court proceedings. The Registry’s judicial responsibilities cover the organisation of the hearings, legal filings and archives, the operation of the legal aid programme for indigent defendants and the management of the detention unit. The Defence of the suspect or accused is not, as such, part of the organisation of the Tribunal. A suspect or accused has the right to legal assistance of his or her own choosing and to appoint a counsel to organise his or her defence before the Court. 2. The Victims and Witnesses Section The VWS was established in response to Article 22 of the Statute of the International Tribunal. Article 22 addresses the Protection of victims and witnesses and states that: “The International Tribunal shall provide in its rules of procedure and evidence for the protection of victims and witnesses. Such protection measures shall include, but shall not be limited to, the conduct of in camera proceedings and the protection of the victim’s identity.” Rule 34 of the Rules of Evidence and Procedure established the Victimis and Witness Section stating that: “There shall be set up under the authority of the Registrar a Victims and Witnesses section consisting of qualified staff to: (i) recommend protective measures for victims and witnesses in accordance with the Article 22 of the Statute, and (ii) provide counselling and support for them, in particular in cases of rape and sexual assault.”

The VWS is thus located within the Registry. The Registry is headed by a Registrar who is directly appointed by the United Nations Secretary-General. Initially, in 1995, the VWS was established with four staff members, a chief of section, one protection officer, one support officer, and one administrative assistant, to undertake the enormous tasks associated with bringing victims and witnesses to The Hague and providing them with protection and support measures. Since then, the VWS has expanded to over forty staff members and has been structured into three distinct units that combine and co-ordinate to facilitate the appearance of witnesses before the Tribunal, whether called by the Chambers, Prosecution or Defence. VWS Mission Statement The VWS contributes to the effective functioning of the ICTY by facilitating the appearance of witnesses before the Tribunal, whether called by the Chambers, Prosecution or Defence.


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The VWS develops its principles, policies and procedures to ensure that all witnesses can testify in safety and security, and that the experience of testifying does not result in further harm, suffering or traumatisation to the witness. The VWS fosters an environment in which testifying can be experienced as a positive, strengthening and enriching event. The VWS operates with the highest levels of integrity, impartiality and confidentiality, and ensures that all witnesses are informed about their rights and entitlements and have equitable access to the services of the section. The Protection Unit co-ordinates responses to the security requirements, the Support Unit provides social and psychological counselling and assistance to witnesses, and the Operations Unit is responsible for logistical operations and witness administration. 3. Overview of the demographics of the witnesses The total number of persons brought by the VWS to The Hague since 1996 is a little more than 3,700. Of this number, 90% came to testify before a Trial Chamber of the ICTY, 84% as fact witnesses and 6% as expert witnesses. The remaining persons were primarily either accompanying support persons or accompanying dependents. 82% of witnesses have been male. 58% of witnesses have been called by the Prosecution, 40% by the Defence and 2% were called by the Chambers. 44% of witnesses are aged over 50 years, 4% between 21 and 30 years. 76% of witnesses come from countries within the former Yugoslavia. The remaining 24% come from countries all over the world. 63% of witnesses have testified publicly in open session. The remaining 37% have been granted protective measures of varying degrees. 4. The Support Unit of the VWS The basis for support services to victims and witnesses was established in the ICTY’s Rules of Procedure and Evidence. Rule 34(A)(ii) makes provision for “counselling and support for [victims and witnesses], in particular in cases of rape and sexual assault”. It has been very challenging for the VWS to interpret what “counselling and support” could, or should, mean in the setting of international criminal proceedings. During the criminal proceedings of more wealthy domestic states, many of the counselling and support needs of witnesses, particularly victims, are met through the provision of state services. For example, states may provide free access to medical, psychological or psychiatric treatment, or may provide specialist services such as rape crisis centres. Victims may be eligible for social security services such as invalid pensions for those who are injured and unable to work, or can provide housing services for those who have lost their homes. Some states are able to provide compensation and restitution payments to victims. Furthermore, some states have institutions such as court assistance services, often using either paid professional staff and/or trained volunteers, to provide information and guidance about the court systems for victims, witnesses and even the accused and their families. The ICTY is entirely without this network of state provided support services for its victims and witnesses. It has been a challenge to assess how to produce these essential services from The Hague, and to develop ways of doing this for victims and witnesses who reside in over twenty different states. The VWS has also had to develop adaptable services so that it is able to provide support and counselling both to Prosecution victim witnesses and to wit-

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nesses for the Defence, some of whom may themselves have been indicted for war crimes, but who nevertheless also require support services to enable them to testify as free as possible from psychological, emotional and physical distress. Victims and witnesses of human rights abuses and war crimes do share similarities with victims of domestic criminal offences such as rape, assault, burglary, etc., and they can have a similar physical, psychological and emotional need for support during legal procedures. It can happen that a witness may request protective measures, not because they fear for their safety but out of a desire to maintain their privacy, and this is very frequent in the case of female survivors of sexual assault. There are, however, some differences for war crimes victim witnesses. There are two such main differences. The first difference is the huge amount of fear that witnesses feel. For many victims of war crimes the perpetrators of violence were many people, not a single person or a small group. The fear of reprisal from those individuals, their friends, family and protectors, means that witnesses feel threat all around them, in any part of the country. The fear is so great that it is very difficult for victim witnesses to believe that any protection measure will be sufficient to maintain their safety. The second difference is the scale of the destruction. The death of large numbers of people, particularly when the victims come from same community, has staggering consequences for that community and indeed for the whole society. In the case of a domestic murder, the impact is felt on the immediate and extended family and in the living environment of the victim. Some of the massacres dealt with by the ICTY saw the murders of hundreds of men, men in the most productive years of their lives. The loss of these men, fathers, older sons, income generators, has condemned the surviving members of that community not just to devastating personal grief, but also to a future of impoverishment. The effects continue for generations. Young boys have lost their adult male role models, and young girls look to grieving mothers. Furthermore, large numbers of citizens have fled their homes to seek refuge in other states. This means that the normal family and community support structures that help a victim to recover are not available, and the resources required for such reconstruction and rehabilitation are not within the means or remit of the Tribunal. And yet, within the limits of this international criminal jurisdiction, there are ways that witnesses are able to use the experience of testifying to bring some strength and resolution to parts of their lives, and the Support Unit of the VWS has committed itself to trying to maximise this potential. In a brief sentence, the Support Unit is responsible for the psychological, emotional and practical well-being of witnesses testifying before the ICTY. It is the mission statement of the Support Unit that no additional harm or traumatisation should befall victims and witnesses because they come to testify, and it is the goal of the Support Unit to strive toward facilitating the experience of testifying to be one that is strengthening and healing for victims and witnesses. The Support Unit has found it useful to look at “counselling” and “support” as separate concepts or tasks, in order to develop its work. This is because in order to be effective in achieving the goals of the Unit, counselling and support cannot just be attached, like a onehour therapeutic treatment session, to the whole experience of being a witness. The concepts and services of counselling and support need to be integrated into the entire functioning of the VWS, into its policies, procedures and practices, to ensure that the victims and witnesses are cared for with sensitivity and dignity, as well as being provided with the more usually understood services of individual therapeutic counselling. The Support Unit provides counselling and support in three primary ways, firstly through the provision of integrated services at a program level, secondly through the provision of professional individual counselling services to victims and witnesses, and thirdly through


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the provision of advice and consultation services to other units within the VWS, and to other organs of the ICTY. There are also three distinct stages where witnesses are provided with counselling and support services. There is the pre-testimony period, when the Support Unit develops and disseminates information to witnesses and has a responsibility to identify and remove, where possible, actual or psychological obstacles to testifying. There is the period of the actual travel and stay in The Hague, including the day of giving testimony where the Support staff are available to provide individual counselling, practical care services, and emergency and crisis care to the witnesses. Finally, there is the post-testimony period, where the Support Unit seeks to provide follow-up support and counselling, assessment and referral for social, physical and psychological needs. 4.1. Overview of the programs of the Support Unit The Support Unit has developed a range of support services that are provided to all witnesses, including twenty-four hour support services from a Witness Assistant Program. While some services seem simple and self-explanatory, such as the provision of information, knowledge of trauma sequelea tells us that victims require information to be presented in sensitive and reassuring ways. For example, people who have been separated from family members only to learn later of their death and never to see them again, require preparation which includes information about disturbing psychological and emotional symptoms of separation anxiety they may face when they separate from family to travel to The Hague. 1. Information to witnesses, including a brochure in Bosnian/Croatian/Serbian/Albanian and a witness information video. In particularly sensitive cases the support and protection officers and witness assistants will meet with witnesses prior to travel for personal briefings and preparation. 2. Briefing and escorted travel for witnesses by the VWS field assistants. Female staff members escort female witnesses testifying on crimes of sexual violence when requested. 3. The witness assistant program. This program consists of a staff team of ten who provide twenty-four staff presence to witnesses while they are in The Hague. These assistants are provided with monthly de-briefing and consultation from an ICTY staff psychologist to assist them in their work. 4. Travel/medical insurance. All witnesses are insured while travelling for the purposes of the ICTY. Many of the witnesses appearing before the ICTY suffering from poor health and witnesses are offered the opportunity to consult with medical practitioners while in The Hague. 5. Psychological and psychiatric support. The VWS has negotiated consultants and services from Dutch networks to which to refer witnesses if required. The VWS has three permanent staff who are the professional support officers qualified in psychology/social work. 6. Comfortable accommodation and appropriate food in a range of locations selected for service and security reasons. 7. Provision of a witness daily allowance for incidental costs. 8. Provision of a witness attendance allowance to compensate for loss of wages and other costs associated with absence from home. Primary producers are particularly vulnerable to losses while absent from their homes. 9. Childcare policy. There are provisions for supporting children in the place of residence during the absence of a parent, or while accompanying a parent.

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10. Accompanying support person policy, to allow particularly vulnerable witnesses to be accompanied to The Hague by a friend or family member. 11. Dependent persons policy. There are provisions for supporting dependent persons in the place of residence during the absence of the carer, or while accompanying the carer. 12. In draft: specific policy guiding the services to female witnesses testifying on crimes of sexual violence. 13. In progress: specific policies guiding services to youth and the aged.

4.2. Overview of individual counselling and support services to witnesses The Support Unit provides professional individual counselling services to victims and witnesses while they are in The Hague through its three professional support officers. These officers are also tasked with providing counselling services to particularly vulnerable witnesses prior to their arrival in The Hague and after their return to their country of residence. This was an expensive and time-consuming service and was reserved for the most vulnerable or traumatised of witnesses until the VWS was able to establish a Sarajevo Field Office in 2002. The support staff speak with witnesses, where possible, before they come to testify to determine whether the witness requires any special support or assistance. Witnesses often have problems, not related to the court, but in enabling themselves to be free to travel to testify. They may require assistance in finding someone to look after a child, a sick relative, or even pets or livestock, or it might be that the witness is experiencing anxiety about the prospect of flying in an aircraft, and needs some reassurance or alternative travel arrangements. The support staff work to overcome the obstacles that may prevent an individual witness from coming freely to the Court. During the stay of the witness in The Hague, for the duration of the period they are required by the Tribunal, their primary care rests with the team of witness assistants. For the majority of witnesses, it is the first time they have travelled internationally, away from family and friends, staying in a country where they are not familiar with the culture or language. They come to participate in the Tribunal, an international court that has the highest profile in their home region, the majority never having entered even a national courtroom before. The witness assistant team speaks Bosnian/Croatian/Serbian, Albanian, English and Dutch, and they provide essential practical support services to witnesses. They are the welcoming faces witnesses see on arrival at the hotel, and the last faces they see before being escorted for their departure home. These staff arrange appropriate meals and hotel facilities, make and attend medical appointments and facilitate and accompany witnesses on recreational activities. Witnesses learn very quickly that the witness assistants are separate from the legal process, work outside the Tribunals offices, and are there to offer support and assistance of a more personal nature. The support officers focus primarily on the actual day of testimony for witnesses, when they can generally be found in the witness waiting rooms connected to the courts. In general, the counselling work carried out in the waiting rooms can be likened to crisis counselling. The support officers focus on the relief of strong emotions like anger and fear, ranging from strong physical symptoms like hyperventilation and other stress responses to psychological symptoms such as disassociation. They also help the witness to contain their emotions and behaviour and to stay focussed on the task ahead of them by providing them with quiet space and information about what is going to be happening around them.


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There are three stages of intervention in the support officers’ role on the day of testimony, similar to the three stages of a witness’s entire experience of testifying, each of which require a different level of service provision. Prior to testimony

Issues facing witnesses

Reactions

-Unpredictable waiting time; -Enclosed environment; -Awaiting the unexpected. -Anticipation of facing accused.

-Anticipatory anxiety, physical & emotional.

Interventions

-Information provision; -Practical attention; -Release of anxiety.

Aim

Put person at ease.

During testimony- recess periods. -Presence of the accused (regardless of whether Prosecution or Defence witness). -Role of the judge. -Cross-examination (by either Prosecution or Defence). -Engaged, or; -Heightened arousal, emotional and physical. -Quiet space for witness; -Practical attention; -Link to the court proceedings; -Release of strong emotions, containment. Provide environment of relief, rest & recomposure.

Post-testimony

-Sense of finality; -Need for feedback; -Sense of accomplishment.

-Heightened arousal, emotional and physical; -exhaustion; -relief. -De-briefing; -Link past with present and future. To have person leave with a sense of closure/completion.

Before testifying many witnesses say they have felt the burden of carrying their evidence and information since the events, sometimes for many years. Individual motives for testifying can be many and varied. They bring the information with a combination of dread and relief: dread at having to retell horrible events, events they have worked hard to try to forget, and relief that finally they can retell the information somewhere important and for the cause of justice. The waiting time before giving testimony is one of the most difficult periods for all witnesses. There are quite severe negative consequences for the witnesses if their testimony is postponed, or if they are kept waiting for very long periods. Prosecution victim witnesses are very conscious of the fact that they will have to face the accused, and describe complex emotions and anxiety at the prospect. The experience varies for every witness, with many witnesses finding that they felt a release from fear, or felt that the accused was somehow reduced in physical stature, to a few who felt frightened at the close proximity of the accused. It is important that the accused has no opportunity to intimidate the witness by gesture or word. The coming “finality” of testifying brings enormous pressure to “perform well”. The desire to do their best is very apparent in the witnesses. They wear their best or borrowed clothes and typically report not sleeping well the night before. Many witnesses see this as the one opportunity they have to contribute to legal justice, and the experience is often described as similar to sitting a very important examination. The support officers are very aware of the importance of not impacting on the evidence that the witness will give in their testimony, and direct their therapeutic strategies towards the emotions of the witness rather than on the facts of the events. The focus of the counselling work is to assist the witness in personal containment and relief from strong emotions and symptoms so they can concentrate on the task of testifying. It is normal for anyone to be nervous before an event such as testifying before a court, and some tension can assist witnesses in being at their most alert and responsive. A major task of the support officers is

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to use knowledge of the sequelea of trauma to identify the difference between normal apprehension and psychological deterioration, and to intervene appropriately. During the process of testifying, the support officers can maintain watch over the proceedings. This means they can monitor the composure of the witnesses and intervene if they are deteriorating and becoming distressed. During the court recess breaks, the support officers again assess the state of the witness. Court recesses are often quite highly emotionally charged, with witnesses expressing emotions of sadness or anger, and it is the responsibility of the support officers to assist the witness in regaining their composure or, if necessary, to alert the Judges if the witness is becoming too ill or distressed to continue. With particularly vulnerable witnesses it is not unusual for the support officers to be given permission to sit beside the witness during the testimony, particularly in cases of female victims of sexual assault, as a supportive presence. They also alert the Judges if the witness is having problems with the court equipment, if they cannot hear or see well, or if any unexpected difficulties occur. The role played by the Judges in the courts can be very important for the witnesses. Many victim witnesses expect the Judges to protect them from harsh treatment by trial attorneys, particularly during cross-examination, and when a Judge intervenes after the questioning has gone on a long time and is repetitive or intimidating, witnesses describe this intervention as helpful and protective. Trauma symptoms can make witnesses very sad, tearful, anxious and distressed. Judges can help to ease these symptoms for the witness with quiet words, informing them that they understand that the witness has a difficult job to do and reassuring them that they are used to witnesses having to give difficult testimony. Sometimes Judges find it more difficult to deal with angry or antagonistic witnesses. Anger and frustration can also be symptoms of trauma, and Judges can reduce these strong emotions with quiet words of understanding, reminding the witness that they will be heard in the courtroom. Many victim witnesses have stated that one of the most important things in the courtroom for them was when the Presiding Judge took the time to personally thank them for undertaking the difficult task of testifying. After the witnesses have finished testifying they often experience again strong emotional states. They may feel a physiological ‘high’, be teary, exhausted, or complain of headache. Witnesses frequently express a need for immediate feedback on how they presented in the court and describe feeling a great sense of relief and even pride, and a sense of accomplishment that they have achieved what they set out to do. It is important that the trial attorneys in the case who were present in the court during the testimony provide some of this feedback. A final responsibility of the support officers is to assist the witness in finding some measure of calm before they leave the court buildings to begin preparations for their journey home. This is done by offering witnesses the opportunity for private and confidential reflection about how the testimony went, about whether it met their expectations and what it might mean for their future. It is a gentle intervention, assisting the witness in acknowledging the stages of emotion they went through, and in formally and consciously acknowledging that their work with the Tribunal has concluded. 4.3. Overview of advice and consultation services The Support Unit also provides professional advice, consultation, and works collaboratively with the other two units of the VWS, the Protection Unit and the Operations Unit, to ensure that the services provided by these two units are sensitive to the needs of vulnerable and traumatised victims and witnesses. The Support Unit is also available to provide advice and consultation to other organs of the Tribunal, such as the OTP and Chambers.


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Protection and support services need to be fully integrated in order to best meet the needs of vulnerable witnesses. Witnesses testifying before the Tribunal can ask for protective measures to be taken in relation to their identity. Justification and reasons must be presented to the Trial Chambers with a request for protection measures because it is the aim of the Tribunal for the proceedings to remain as public and transparent as possible. It is entirely in the hands of the Trial Chambers as to whether or not protective measures are granted. In any circumstances, the identity of the witness will not be hidden from the accused. The Court may grant the following measures: The name, address and whereabouts and other information which may identify the witness can be withheld from the public and the media. In case the Trial Chamber orders that the identity of a witness may not be disclosed to the public and media, the witness will be given a pseudonym to be used in all trial proceedings. In addition, the name of the witness can be removed from all existing court documents and all identifying information may be sealed or not included in any of the Tribunal’s public records. Voice and image altering devices can be used to alter the appearance and sound of the witness on the court television screens. Screens can be placed around the witness in order to prevent the general public from recognising them. The Judges may order closed sessions, which means that the witness may be permitted to give evidence in camera. The court sessions are closed to the public and the only people present in the courtroom are the accused, Judges, lawyers and court officials. Evidence may also be given by one-way closed circuit TV, so that the witness does not need to be in the courtroom with the accused. Evidence is given in a separate room. The witness is able to hear what is going on in the courtroom and the Judges are able to see the face of the witness on the courtroom television screens on their desks. The witness is also seen and heard by the accused, the Defence and Prosecution lawyers and others in the courtroom. When there is a threat to the life of a witness which is so serious that the witness is unable to return to the former Yugoslavia because of their testimony, the VWS can arrange for the temporary or permanent relocation of the witness and his/her close relations to another country. A comprehensive assessment is made by the VWS before considering relocation. This is an extreme measure, and is only recommended in cases where the VWS assesses that there exists a verifiable, identifiable and sustained threat to the life of a witness. Victim witnesses who require protection measures, or who are placed in the relocation program, are usually in a state of terrible fear, for themselves, but more importantly, for the safety of their families, and this is where VWS services are involved. Without going into the details of traumatic responses, some people who have suffered horrific events try to avoid things that remind them, or are similar to, that experience. Things that can remind them are sometimes called a “trigger” and if their traumatic memory is triggered, the victim can become overwhelmed with feelings of fear, a feeling they are going to die or they cannot sleep or eat, just like they experienced at the time of the horrific events. Sometimes it is very difficult to know what will remind a victim of the terrible events, it could be something that is difficult to identify such as a particular scent like the smell of a flower, or it can be something very obvious like a uniformed man carrying a gun. The difficulty for witnesses who must go into a relocation program, or who testify with protective measures, is that some parts of these processes can be very much like the kind of things they suffered during the traumatic experience. For example, interviews with police or investigators about protective measures can remind victims of times when they were interrogated by the military during war or imprisonment. Witnesses entering the relocation program have to leave their homes and go somewhere new and unknown, and this can remind them of times when they had to flee from their homes to the unknown during a refugee flight.

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This kind of “reminder” can make the witness very agitated and distressed, and even though protection services are for the benefit of the witness, it can seem like the witness does not want to co-operate, when really they are acting out of fear and traumatic memory, not out of clear thinking and emotional balance. This is why it is important that protection services for victim witnesses also include support and counselling services. 5. Conclusion There can be both positive and negative aspects for every individual witness who has the courage and commitment to take the stand before the ICTY, and it is a privilege and a constant inspiration to the support staff of the VWS to be able to participate in assisting those who do. Critical to offering useful assistance is understanding the motivations that drive an individual witness to accept the responsibility of giving their testimony. The support staff of the VWS have collected anecdotal material which seems to suggest that motivations which bring witnesses to the Tribunal fall into four kinds of areas. The first is “to speak for the dead”, to speak for those who cannot speak for themselves. This is presented by witnesses in many different ways. It can be the last parental act that a man or woman can do for a lost child. It can be expressed in religious terms, a belief that God has allowed a person to survive for the very purpose of testifying. It can be expressed in terms that show terrible distress and suffering, witnesses who declare that they must testify because the voices of the dead will not allow them to rest unless they do. These witnesses have a driving moral obligation to the dead to speak before the Tribunal. The second is “to tell the world the truth” about what happened in the former Yugoslavia. The witnesses who come with this motivation can often feel unsatisfied with the experience of testifying, because the Court, of course, does not allow the whole story of an individual’s experience to be told. The Court only allows the witness to answer certain questions. It is very important to identify this motivation in witnesses so they can be fully informed about the way the Court functions and what their role is in the whole picture. And there are some witnesses who come to find out the whole truth. These witnesses can seem to be looking for an explanation, not of what happened, or at what time it happened, but why it happened, and this answer is not easily found in a criminal court. One female witness came looking for a very specific piece of information, information about the possibility of her young son having survived the conflict. A Prosecutor asked her, “What do you think happened to your husband and two sons?” She answered; “How do I know? As a mother, I still have hope. I just can’t believe this is true. How is it possible that a human could do something like this, could destroy everything, could kill so many people……….Just imagine, this youngest boy I had. Those little hands of his. How could they be dead? I imagine those hands picking strawberries, reading books, going to school…………I would like to appeal to you, to ask ……….…..whether there is any hope for at least that little child that they snatched away from me, because I keep dreaming about him. I dream of him bringing flowers and saying, “Mother, I’ve come”. And I hug him, and say “where have you been my son?” And he says, “I’ve been in ……. all this time”. So I beg you, if ………..knows anything about it, about my son, surviving some place…” The third is “to seek for justice”. This is a motivation that sits more easily with the reality of the work of the Tribunal. For Prosecution victim witnesses who come with this motivation, the final judgement and term of prison sentence is often more important than their own day of testimony. Some victim witnesses have expressed strong objections to what they see as the inadequacy of prison terms in a guilty finding. The fourth is not possible to measure, and it concerns those who come “in the hope that such crimes will never happen again”. This hope is often expressed by female witnesses, witnesses whose great desire it is that no one else suffers as they have.


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One of the most important tasks of the counselling work by the support officers is to assist witnesses in integrating three aspects of their experience of testifying, that is their motivations, their expectations, and the actual experience. For the witness, being able to understand his/her own motives for testifying, being able to articulate what he/she expects from testifying (and being able to identify accurately whether these expectations are realistic or not), and then to be able to match these with the reality of what it is like to testify, seems to provide the cohesion needed for the witness to leave satisfied and strengthened by the experience.

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Genocide’s Orphan: The 1979 Trial of Pol Pot and Ieng Sary by Howard J. DE NIKE* Abstract: Though the world largely ignored the proceedings, an in absentia trial of Khmer Rouge leaders was held in Phnom Penh in 1979. Cold War politics thwarted international recognition of the tribunal then and subsequently. This shortcoming is consistent with failure to give primacy to victims’ interests in the development of international human rights law. Finally, “disproportionate revenge” as a Cambodian cultural model fails to explain adequately the nature and scale of Khmer Rouge killing.

Introduction In 1998, following a year with a law and democracy project in Cambodia, I was invited to edit a volume containing the record of proceedings held in 1979 in Phnom Penh, in which Pol Pot and Ieng Sary, two principal leaders of the Khmer Rouge, were charged with “acts of genocide.” Subsequently, the book appeared as part of the University of Pennsylvania Press series: Studies in Human Rights (2000). The 1979 case mounted against Pol Pot and Ieng Sary has always been the bastard child of the International Human Rights Movement. Most of the world ignored it, while many legal scholars, including Kathryn Railsback, dismissed it casually as a “show trial” (Railsback 1990: 460). There are several reasons for this, reasons which also help explain why some may not know of its existence, let alone its details. Thus, permit me to spend a few moments setting the scene. In 1975, as the U.S. folded its tents in Vietnam, Congress cut off the funds for further bombing in Cambodia. The immediate consequence in April of that year was the triumphal emergence of Khmer Rouge forces, which promptly evacuated all major Cambodian cities. An increasingly repressive regime prevailed for a period of almost four years, during which the Khmer Rouge sought to transform forcibly all of Cambodia into an exclusively agrarian-based society. Estimates are that a million people perished from execution, being worked to death, malnutrition, and denial of ordinary medical care. In January of 1979, with support from Vietnam, a Cambodian faction, including some former Khmer Rouge members, rose up and ousted the KR from Phnom Penh, forcing Pol Pot to flee to the hinterlands, where the Khmer Rouge established remote military strongholds and launched armed attacks for nearly two decades. 1. The 1979 Proceedings Within a few months of its military successes against the Khmer Rouge, on 7 July 1979 the People’s Revolutionary Council of Kampuchea announced the formation of The People’s Revolutionary Tribunal to try “the acts of genocide committed by the Pol Pot-Ieng Sary clique,” including “planned massacres of groups of innocent people, expulsion of inhabitants of cities and villages in order to concentrate them and force them to do hard labour in

*

J.D., Ph.D. San Francisco State University.

H.J. De Nike / Genocide’s Orphan: The 1979 Trial of Pol Pot and Ieng Sary

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conditions leading to their physical and mental destruction, wiping out religion and destroying political, cultural and social structures and family and social relations.” In convening this tribunal, the fledgling Cambodian government, assisted by its Vietnamese allies, chose one of several alternatives which are available in these circumstances to enable victims to gain justice for the crime of genocide. Other possibilities exist such as, for example, internationally sanctioned prosecutions, state lustration procedures exposing perpetrators and banning them from public life temporarily or permanently, or truth commissions combined with forms of amnesty for those agreeing to testify. Obviously, determination of what course, or courses, to follow must be guided by specific circumstances, taking into account the nature and extent of the offences and future political consequences. The alternatives are not mutually exclusive. In the instance of Cambodia in 1979, proceedings commenced at once against Pol Pot and Ieng Sary in Phnom Penh, beginning on August 15th and concluding 3 days later. Neither Pol Pot, nor Ieng Sary, were present, though steps had been taken to secure their attendance by public notification. (It may be noted that there was also a defendant at Nuremberg, namely Martin Bormann, Hitler’s adjutant, who was tried in absentia.) A Cambodian jurist, Keo Chanda, was designated Presiding Judge, and a jury of ten People’s Assessors, composed of one former judge and nine lay persons, were named to decide the case. Defence counsel was appointed. The prosecutor presented evidence primarily in the form of sworn affidavits, as customary under civil law, which as former French colonials was the system most familiar to Cambodians. Additionally, a small percentage of the affiants appeared in person as witnesses. At the conclusion of the case, the People’s Assessors returned a guilty verdict, together with sentences of death. Under civil law, however, in the absence of an accused, a death sentence cannot actually be carried out without a second, full trial. 2. Analysis of Proceedings Since this gathering is considering the subject of large-scale victimization within the theoretical matrix of “victimization studies,” I will examine the issues peculiar to the 1979 Phnom Penh trial from this perspective. Although they are fully applicable to the Cambodian situation, I will forgo generalized discussion of rationales which apply to genocide prosecutions, such as a means of providing “closure” for victims, the victims’ demand for accountability, the creation of an historical record, and so forth. Rather, I will examine the topic in the historical circumstances peculiar to Cambodia at that moment in time. Several salient factors stand out when examining the decision to convene the Pol PotIeng Sary tribunal: 1) Barely seven months had passed between Pol Pot’s ouster and August 1979; and 2) the proceedings were devoid of any genuine international recognition whatsoever. The first consideration has some advantages: for instance, the trial took place while Khmer Rouge horrors were still vivid. The second factor presents more complex elements. Without international support, the tribunal would lack credibility in the eyes of many; without the personal presence of Pol Pot, the tribunal could appear hasty and contrived. Yet, with regard to the latter so-called deficiency, history has proved the wisdom of moving promptly despite the absence of external sanctioning. Given the intervening 25 years in which no international proceeding of any sort directed against a Khmer Rouge figure has been initiated, the hope that by conducting their trial expeditiously, the full nature and extent of Khmer Rouge atrocities might be presented to a previously neglectful world, in however imperfect a manner, takes on increased importance. That the international community has to this day failed to build upon this groundwork should not be laid at the feet of the officials who organized the 1979 trial.

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2.1 Perspective Why, aside from Vietnam and some of its pro-soviet allies, was there a notable absence of international interest in the 1979 proceedings? The brief answer, which is what I am limited to here, is: Cold War politics. The United States was still reacting to its 1975 withdrawal from Vietnam. Rather than viewing the ousting of the Khmer Rouge as a liberation from tyranny, it saw only the spread of Vietnamese influence in Indo-China. The sad truth is that the U.S. officially supported the Khmer Rouge as the occupant of Cambodia’s seat in the U.N. until 1983, and subsequently endorsed Khmer Rouge participation in the three-sided military coalition which held the U.N. seat for another five years, while at the same time, with U.S. assistance, the coalition waged war against the Vietnamese-supported People’s Republic of Kampuchea. All of this highlights a factor relevant to the victims of genocide: the tendency of human rights law to be a creature of western, that is, politically dominant, powers, conducted to suit their interests. There is a serious flaw in international human rights when, in practice, rights prove less than fully “international”. I have in mind, for instance, the faltering participation of the United States in the International Criminal Court. If “international” is to be understood correctly as “universal”, as I believe it must, then its corpus of law must be applicable to all. When a state excepts itself, in whole or part, from ICC jurisdiction, it contradicts this fundamental truth. Prosecutions, according to the contrary view, risk becoming no more than the imposition of the will of the powerful upon the weak or defeated, rather than the expression of justice. What right would the police have in any ordinary community to prosecute a thief arrested by day, if its officers maintain a right to rob and plunder with impunity by night? Popular sentiment would insist that either the law enforcer submit to a rule of law, or forfeit all legitimate colour of authority. The answer rests in a difficulty which has affected the development of international human rights law from its inception, namely, the gap between legal academics and officials who have conceived, developed, and largely implemented human rights law, and the popular voice of those who are the real and potential victims of human rights violations. Instead of embracing international human rights as a means of guaranteeing their own citizens’ protection from cruel abuses, governments have found justification for embracing this jurisprudence mostly as to “others.” This perspective can overlook the need for, indeed at times the crucial primacy of, victims’ interests with regard to forum, charges, evidence, and disposition. 2.2 Justice for genocide victims The proceedings in Phnom Penh are the best contrary example I know of this tendency. In 1979, although the West was to a significant degree already aware of the nature and scale of Khmer Rouge atrocities, it chose to sacrifice the interests of victims and those goals so familiar to theoreticians of justice for human rights victims, namely closure, accountability, the historical record, and so forth, in favour of crass Cold War politics. Not only did the West not lend its support to the prosecution of the Khmer Rouge criminals in 1979, it has since then added insult to injury, finding fault with the procedures employed and ignoring the value of what was achieved despite overwhelming obstacles. In summing up his thoughts on the Nuremberg proceedings, Chief Prosecutor Telford Taylor lamented that after the initial International Military Tribunal proceedings, the need to organize new structures, administration and staffing for the following trials delayed the war crimes program by almost a year. “The result of these and related developments,” declared Taylor, “was a rapid decrease of political interest in war crimes matters and eventually a desire to put an end to trials and liberate war criminals still in captivity” (Taylor 1992: 640). Parenthetically, for those who are unfamiliar with the record of subsequent


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prosecutions, the harm to which Taylor alludes was substantial indeed. In short, the public and the U.S. Congress quickly lost its enthusiasm for the post-war tribunals in Germany. Taylor’s regret applies with exponential force to the circumstances in Cambodia. Aside from the 1979 trial, to date no internationally supported proceeding of any sort has been undertaken against any Khmer Rouge figure, high or low. In 1997, the General Assembly of the United Nations adopted a resolution pledging to “respond positively to assist efforts to investigate Cambodia’s tragic history including responsibility for past international crime, such as acts of genocide and crimes against humanity.” (G.A. Res. 52/135, U.N. GAOR, 52nd Sess., Agenda Item 112 (b), at 2, U.N. Doc. A/Res/52/135 (1998).) Given the record of the United Nations’ acceptance of the Khmer Rouge role as Cambodia’s official representative to the international body, it is perhaps unsurprising that suspicion among Cambodian leaders about the good intentions behind such offers has so far thwarted productive co-operation. In his 2001 review of Genocide in Cambodia, human rights law Professor William Schabas quarrels with the use of the word “trial” in the volume’s subtitle (Schabas 2001: 475). He likewise carps over the editorial assertion that the Phnom Penh proceedings were “the first trial of a government leader, or anyone else, under the Genocide Convention” (Schabas 2001: 476). And, finally, he disputes the appropriateness of comparisons between Nuremberg and the 1979 trial of the two Khmer Rouge leaders (Schabas 2001: 476). What exactly emboldens a respected writer such as Schabas to be so dismissive of what, by any reasonable examination of the documentation developed by the Cambodians in 1979 and presented as evidence, was a sincere and competent effort? Specifically, the proceedings which my fellow editors and I compiled for the 551-page text includes more than a hundred witness statements, with diagrams of common burials, scores of captured Khmer Rouge documents, and official reports of the chaos inflicted upon various segments of society by the Khmer Rouge. It is a compelling record of massive population dislocation, widespread political purges, virulent xenophobia, deliberate starvation, and the destruction of families, most in compelling, first-person narrative. The answer I fear lies in a prevailing attitude among the architects of human rights law not to concern itself adequately with the interests of victims. As a member of the bar for thirty-seven years, I am conscious of the importance of due process. The manner in which a trial is conducted is what establishes its legitimacy. It is not enough that the “correct” verdict be reached. At least this is not enough for jurists to place their names and reputations alongside the outcome. What is at stake, as observed by U.S. Court of Appeals Judge, Richard Posner, is whether it is law that is applied in such proceedings, and whether, because it calls itself a court, the judgment of the tribunal is law (Posner 1990: 228). The first problem is: by whose authority does such a tribunal act. In the case of the court at Nuremberg, the answer stems from its status as a supranational body. In contrast, the proceedings in 1979 in Phnom Penh operated under a national “license” – from a government lacking universal recognition. As Posner quickly points out, however, law should be seen less as a “set of concepts” and more as an “activity.” Referring to Nuremberg, he declares: “We should consider the pragmatic question of whether punishing the Nazi leaders using the forms of law was a sensible way to proceed” (emphasis in the original) (Posner 1990: 229). Posner concludes that it was: “It was unthinkable to let those monsters go free, so the question can be recast as whether they should have been killed summarily or after a trial” (Posner 1990: 229). For practical reasons, namely that Pol Pot, Ieng Sary, and other known leaders of the Khmer Rouge remained “at large”, the option of summary execution was unavailable. The question, nonetheless, persists: was a trial, to use Posner’s words, a “sensible way to proceed”? Conceding some “deficiencies” of due process at Nuremberg (for example, “adequate warning of criminal liability, (and) an unbiased tribunal”), Posner nonetheless con-

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cludes: “The value of the trial … was that it enabled a public record to be compiled … [A]s a result their moral guilt was established more convincingly in the eyes of the world than if they had been eliminated hugger-mugger” (Posner 1990:229). But more importantly for the Cambodian victimized by the Khmer Rouge, the 1979 proceedings were a vital step in achieving the goal of severing ties with the recent past and launching a new government free of the taint resting upon the previous wielders of power. In utilizing, however unsurely, a language of prosecution and precedents drawn from Nuremberg and the 1948 U.N. Convention on the Prevention and Punishment of the Crime of Genocide, the new Cambodian government signalled its willingness to do what Democratic Kampuchea under the Khmer Rouge resisted so fiercely, namely, to be embraced by the “community of nations.” Because of the peculiar circumstance that the Khmer Rouge were in August 1979 as yet unvanquished, another unusual factor made the initiation of a speedy prosecution of Pol Pot necessary: the goal of deterrence. For reasons which again I am afraid betray the consistent intellectualism of human rights law when it comes to identifying the interests of victims, deterrence is seldom considered. Despite the centrality of deterrence to almost every theory of criminal justice, little reflection has been devoted to it in the context of the crime of genocide. Is this because the perpetrators are usually in custody and thus unlikely to commit further crimes, or, as I suspect, because there is a widely held assumption that genocide, especially perpetrated by an “irrational” Other, is not deterrable in a conventional sense since its roots are beyond the reach of ordinary psychology, that is, the rational calculus of human decision making? In either event, the threat that Pol Pot would one day be able to reinstate his murderous rule over Cambodia was a crucial added incentive for an immediate trial. It was, accordingly, important for the architects of the case against Pol Pot and Ieng Sary to assemble the evidence rapidly. The extent to which goals of thoroughness and clarity of legal articulation may have been compromised under this imperative must be kept in mind. If form and content were less than precise, the urgency of the matter helps to explain the shortcoming. 3. The anthropology of Cambodian genocide Finally, I would like to comment briefly on theories of root causes for the monumental killing during the Democratic Kampuchea era. Anthropologist Alexander Hinton argues that there is a “Cambodian cultural model of disproportionate revenge (which) served as a template for part of the genocidal violence that occurred (under the Khmer Rouge)” (Hinton 2002: 275). He points to a widely told folk tale, Tum Teav, in which a Cambodian king takes vengeance against an insubordinate provincial official, executing the man’s “family and relatives seven generations removed” by having them “buried up to their necks in the ground” and then having “their heads raked off by an iron plow and harrow” (Hinton 2002: 257). Hinton also identifies a Khmer vocabulary of extreme revenge, together with anecdotal accounts, of what he terms “a head for an eye” approach to retributive justice observed in Cambodian culture. Although there may be elements of an unacceptable determinism in his analysis, elements which Hinton himself hastens to disavow, this is not its major weakness. In my own reading of Tum Teav, the salient feature is the not vengeance to “the seventh generation” – an obviously impossible exaggeration typical of cautionary tales, but the tragic consequences to be expected from a failure to respect the natural hierarchy of king over subordinate and, down the social ladder, which all observers reckon to be the most central of traditional Cambodian virtues. Moreover, a large leap is required to move from the specific personal vengeance elaborated in the story Tum Teav and other accounts of “head for an eye” retribution in response to specific offences, to the generalized, classbased violence advocated by the Khmer Rouge. One should not discount the potential of


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what Hinton refers to as “cultural models com(ing) to serve as templates for violence,” and “implicit cultural knowledge … (providing) fodder for genocidal ideologies” (Hinton 2002: 275). But care must be taken when arguing that cultural interpretation swings from metaphor to action, otherwise the anthropologist attending his first American baseball game will waste a lot of time afterwards looking for dead umpires. In this instance the million corpses are indeed real. It is also unarguable that Cambodian peasants were the victims of long-standing class exploitation, at times violent, in addition to years of rampant B-52 bombardment by the U.S. But does “head for an eye” folk rhetoric explain the “killing fields”? Not adequately, I’m afraid. Rather, more research is needed, in particular into the degree to which death in Cambodia between 1975 and 1979 produced a dystopic society, one utterly stripped of its ordering hierarchies, and thereby sent cascading into a vortex of brutality. 4. Conclusion Hinton is absolutely correct to look into the Cambodian psyche and soul for explanations, for whatever analysis one applies must grapple with the awful reality that the killing during the forty months of Khmer Rouge power was mostly perpetrated by Cambodians against Cambodians, that is not by outside invaders or hostile ethnic groups. Do the 1979 Phnom Penh proceedings offer a definitive causal explanation, one likely to satisfy the victims themselves? I am not so bold as to claim that it does. But the strength of the record represents an excellent beginning. References Cited Hinton, Alexander Laban (2002). “A Head for an Eye: Revenge in the Cambodian Genocide.” In Genocide: An Anthropological Reader, Alexander Laban Hinton, ed. Malden, Mass.: Blackwell Publishers, 254-285. Posner, Richard (1990). The Problems of Jurisprudence. Cambridge: Harvard University Press. Railsback, Kathryn (1990). “A Genocide Convention Action Against the Khmer Rouge: Preventing a Resurgence of the Killing Fields.” Connecticut Journal of International Law 5: 457. Schabas, William (2001). Review, Genocide in Cambodia: Documents from the Trial of Pol Pot and Ieng Sary, Howard J. De Nike, Quigley, John, and Robinson, Kenneth J., eds. Philadelphia: University of Pennsylvania Press (2000). In Human Rights Quarterly, Vol. 5: 470. Taylor, Telford (1992). The Anatomy of the Nuremberg Trials. Alfred A. Knopf: New York.


IV. Victim Assistance and Restorative Justice in Post-Conflict Societies



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How to deal with mass victimization and gross human rights violations. A restorative justice approach Elmar G.M. WEITEKAMP1, Stephan PARMENTIER2, Kris VANSPAUWEN3 Marta VALIÑAS4, Roel GERITS 5 Abstract. In this chapter we examine post-conflict situations and how countries dealt with them. We identified four building blocks which seem to be essential for post-conflict justice: truth, accountability, reparation and reconciliation. After that we describe restorative justice mechanisms and their promises by examining them in the context of truth, accountability, reparation and reconciliation in the context of victim-offender relationship and stakeholders involved in the conflict. Finally we refer to the restorative regulation pyramid as introduced by Braithwaite and compare his pyramid with the Bougainville Style peace building pyramid by Howley before introducing our own pyramid which is a combination of Braithwaite’s and Howley’s ideas.

Introduction Despite the continuing decline in the number of violent conflicts in recent years, the postWorld War II period can be marked as one of the most violent periods in human history (Eriksson and Wallensteen, 2004). The gross majority of the conflicts were intrastate conflicts involving flagrant and massive human rights violations. It is estimated that in the period 1945-1996 alone, 220 conflicts (not including international conflicts) resulted in 87 1

Elmar G.M. Weitekamp received an M.A. in Socialwork from the Hochschule Niederrhein in Mönchengladbach in 1980, his M.A. in Criminology in 1982 and Ph.D: in 1989 from the University of Pennsylvania, USA. He is currently special guest professor of Criminology, Victimology and Restorative Justice at the Law and Society Institute, K.U. Leuven, Belgium and Senior Research Associate at the Institute of Criminology at the University of Tübingen, Germany. 2 Stephan Parmentier studied Law and Sociology at the K.U. Leuven and received his Candidate in Political science in 1982 and his Licentiate in Law in 1983 and in Sociology in 1987. He received an M.A. in Sociology and Conflict Resolution in 1987 at The University of Minnesota Twin Cities and a Ph.D. in Law in 1997 at the K.U.Leuven, Belgium. He is currently professor of Sociology of law, Crime and Human Rights, and Director of the aw and Society Institute at the Faculty of Law, K.U. Leuven, Belgium. 3 Kris Vanspauwen studied criminology at the K.U.Leuven, Belgium and the University of Regina, Canada. He obtained a Candidate in Criminology in 1999 and a Licentiate in Criminology in 2001 from the K.U. Leuven, Belgium. He is currently a Ph.D. candidate at the Law and Society Institute, Faculty of Law, K.U. Leuven, Belgium and a researcher on a project “Mass victimization and Restorative Justice: The Case of South Africa”, funded by the Flemish Fund for Scientific Research. 4 Marta Isabel Chamacho Valiñas obtained her Law Degree from the University of Porto, Portugal in 2002 and a M.A. in Human Rights and Democratisation from the University of Venice, Italy. She is currently a Ph.D. candidate at the Law and Society Institute, Faculty of law, K.U. Leuven, Belgium and a researcher on a project “ Mass Victimization and Restorative Justice: The cases of Serbia and Bosnia” , a project funded by the Research Fund of the K.U. Leuven, Belgium. 5 Roel Gerits studied criminology at the K.U.Leuven, Belgium and obtained his Candidate (2000) and Licentiate (2004) in Criminology. He is currently an assistant at the Law and Society Institute, Faculty of Law, K.U. Leuven, Belgium.

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million deaths and many more millions of people stripped of their fundamental rights, property and dignity (Balint, 1996). In the final decades of the last century various mechanisms for dealing with violent conflicts have come to light, in order to call the offenders to account and to provide compensation to the victims. The mechanisms that were put in place range from national and international tribunals or courts, to non-judicial forums like truth commissions (Bassiouni, 2002; Kritz, 1995). The emphasis on the development of more victim-oriented mechanisms is a logical continuation of the growing interest in the fate of victims in favour of the victors of conflicts. Some explain this profound shift as the progressive consolidation of the democratic model (Todorov, 2001). At the same time, criminology and the understanding of crime has gone through the same paradigm shift – the social criminal as a survivor in poor communities has made room for the suffering victims (Lea, 1999). This contribution has two main objectives: the first is to understand the recent developments that are gradually leading us away from situations of impunity, towards situations of post-conflict justice in the face of a democratic transition; the second is to integrate the idea of restorative justice in the framework of post-conflict justice. We argue that the restorative justice theory, as an emerging discourse within the criminological sciences, may offer a more balanced approach towards the victims and perpetrators of mass violence. Moreover we suggest that it could contribute to broadening the object of criminology by shifting the attention from common crimes to political crimes, and to deepening our theoretical understanding of the phenomenon of mass violence. The text takes the following structure. First we look at the building blocks that contribute to post-conflict justice. In the following paragraph we sketch the significance and shortcomings of retributive justice mechanisms within our post-conflict justice model. Next, we attempt to introduce restorative justice principles, and look at truth commissions as the primary example of a restorative justice mechanism. And, finally, we attempt to assess the implications of these considerations for criminology and an understanding of mass violence. 1. The building blocks of post-conflict justice Debates about gross violations of human rights committed in the past usually start during times of transition, that is when societies are moving away from a non-democratic regime. At that time, the new elites are openly confronted with the fundamental question of how to address the heavy burden of their dark past. This question was posed in most countries of Latin America in the 1980s, in all countries of Central and Eastern Europe in the 1990s, and in several countries in Africa and Asia during recent years (See also: Hayner, 2002). In much of the legal and the social science literature, this problem is known as the question of “dealing with the past” (Huyse, 1996). We prefer two notions that are broader and more neutral at the same time, and which we will use interchangeably, namely, transitional justice, meaning “the study of the choices made and the quality of justice rendered when states are replacing authoritarian regimes by democratic state institutions” (Siegel, 1998: 431), and “post-conflict justice” (Bassiouni, 2002). What are the key issues faced by new regimes are facing in their pursuit of justice (Parmentier, 2003)? In early literature on transitional justice it is argued that the new elites have to address two fundamental issues. The first is how to bring the truth about the past to the forefront, and give it some form of credit. The second is how to make sure that the offenders can be called to account for their deeds. (Huyse, 1996; Kritz, 1995). Both aspects, truth and accountability, are considered absolutely crucial for new democracies in order to break through the thick walls of impunity and to move towards a culture of accountability (Mathews, 2002; Minow, 1998). In more recent literature on transitional justice two addi-


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tional issues are attracting increasing attention. The first deals with the problem of how to compensate victims for the gross human rights violations of the past (Bassiouni, 2000). The other is more forward-looking and relates to the need to reconcile the various communities and sectors of society in order to rebuild a society that constitutes the new democracy (Bloomfield, Barnes and Huyse, 2003). Let us take a closer look at each of the building blocks: truth, accountability, reparation, and reconciliation. Truth First of all, unearthing the truth is an important exercise, not only because individuals wish to know what has happened to their beloved ones, but also because societies have an interest in being aware of the patterns of gross human rights violations that have existed in the past. It is the first step towards the acknowledgement, and the reconstruction, of an individual and collective memory of a horrendous past (Amadiume and An-Na’im, 2000). Yet, the search for the truth is not without challenges. In its interim report of 1998, the South African Truth and Reconciliation Commission (TRC) proved that it was very well aware of the complexity of this concept, by making the distinction between four notions of truth: (1) factual or forensic truth, meaning the evidence obtained and corroborated through reliable procedures; (2) personal and narrative truth, meaning the many stories that individuals told about their experiences under apartheid; (3) social or dialogue truth, established through interaction, discussion and debate; and (4) healing and restorative truth, meaning the truth that places facts and their meaning within the context of human relationships (TRC Report, 1998; Parlevliet, 1998). Every type of truth has its value, and its own procedures for reaching it. Accountability The second building block relates to the possibility of calling to account those who have committed gross violations of human rights that sometimes amount to international crimes. The accountability of the perpetrators is an equally important aspect for new regimes, not only to respond to the idea that “justice be done”, and thus re-establish the moral order of the victims and of society as a whole, but also on political grounds, namely to reaffirm the ideals of the “rule of law” and human rights, and thereby strengthen a fragile democracy. The aspect of accountability also encounters various challenges (Huyse, 1996). The first relates to the type of offenders that should be called to account - only the heads and the planners of gross violations of human rights, or also those who executed the orders and those who assisted them? And what about the so-called bystanders, who did not actively participate in the crimes, but nevertheless benefited from the consequences? A second challenge deals with the type of accountability (Kritz, 1996). Victims, supported by other sectors of society, often call for criminal prosecution, relying on the legal argument of “a duty to prosecute in international human rights law” (Orentlicher, 1991). Criminal prosecution is not without problems, partly due to the substantial capacity needed to undertake such actions, taking into account the rules of due process and human rights, but also because criminal prosecution may endanger the new democracy, due to the existing power and potential resistance of the old political and military elites. Other types of accountability can also be envisaged, such as administrative “lustration” or political accountability, both intended to purify the elites of a country without prosecuting them in a criminal manner. Reparation Reparation is becoming increasingly important in addressing, and even undoing, the injustices of the past. Current discussions in the realm of the UN Commission of Human Rights

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suggest that reparation is to be understood as a very wide concept, including the restitution of goods, financial compensation, rehabilitation through social and medical measures, symbolic measures, and guarantees of non-repetition of the alleged acts. All of these measures can be individual or collective (Bassiouni, 2000). Some important challenges remain however. First of all, a wide and open definition allows for a broad interpretation of what constitutes reparation following gross human rights violations in a given context. Furthermore, who should be held responsible for reparation? In other words, who has the duty to provide reparation, the new state agencies or the perpetrators themselves, individually or collectively, and what about the bystanders who benefited? Furthermore, who are the victims and who should benefit from the reparation? And finally also, how should this right to reparation be enforced, through a general government policy or through individual administrative or judicial action? These elements are crucial if the right to reparation is to become a reality, more than just wishful thinking or even a utopia (Vandeginste, 2004). Reconciliation Finally, the question remains as to how a country or a society that has been conflict-ridden for a long time, and has produced numerous victims, can regain some form of social cohesion, which is absolutely essential for its future development. The issue of reconciliation, of “creating trust and understanding between former enemies”, is gaining increasing attention in theory and practice (Bloomfield, Barnes, and Huyse, 2003: 1). The challenges for reconciliation are no less present. First of all, the notion has multiple dimensions. The South African TRC, for example, has distinguished four different levels of reconciliation: (1) the individual level of coming to terms with a painful truth, e.g. after exhumations and reburials of beloved ones; (2) the interpersonal level of specific victims and their perpetrators; (3) the community level, when addressing internal conflicts inside and between local communities; and (4) the national level, by focusing on the role of the state and non-state institutions (TRC Report, 1998). The challenge lies in the conflicting agendas that could stem from the operationalisation of the concept on different levels. For South Africa, Van der Merwe has illustrated how the national plan for reconciliation in postapartheid South Africa has led to the obstruction and hampering of the individual process of reconciliation for many victims (Van der Merwe, 2001). Another challenge relates to the ideological use of the re-conciliation discourse. Many commentators suggest that violent conflicts and human rights violations have upset a balanced situation that existed in the past, and that reconciliation actually means going back to that past. However, it is very doubtful whether this retrospective approach is relevant in situations of long-lasting divisions in society, e.g. between the indigenous peoples and the new settlers, where going back to the past would mean a confirmation of long-established inequalities. In such circumstances, it seems more correct to speak of conciliation in the future. And finally also, a strong controversy exists in South Africa regarding the ambiguity in the relationship between reconciliation and reparation (Doxtader, 2004: 116-8). Krog aptly describes this ambiguity as follows: “If people don’t get reparation, they won’t forgive. If people are not forgiven, the won’t offer reparation” (Graybill, 1998: 154). It should be noted that, thus far, the four building blocks described above have mostly been studied in isolation, without much attention to their mutual interrelationship and their interdependency. If we are to increase our understanding of post-conflict justice, it is suggested here that we also have to deepen our theoretical frameworks. For this purpose, we propose to group the four building blocks of post-conflict justice together in a heuristic model, the TARR Model (see figure 1). This model is inspired by the writings of the left


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realists in criminology, who have developed a similar framework for the analysis of crime and its various components (Lea, 1992: 69). It is argued here that the above model has several major advantages. First, it allows for a thorough and systematic investigation of the various relationships between the four building blocks listed, e.g. between truth and accountability, truth and reconciliation (Gibson, 2004), or reparation and reconciliation (Doxtader, 2004). Moreover, the model visualizes the possibility of gauging the significance of various institutions and mechanisms when dealing with gross human rights violations in relationship to these four basic issues (cf. infra). And finally the framework suggests another approach to the concept of post-conflict justice. Instead of looking for a clear definition of what post-conflict justice is, it is proposed that post-conflict justice be seen as the final result of the interplay between these four

Figure 1: TARR Model – the building blocks of post-conflict justice (Source: S. Parmentier, based on J. Lea, 1992)

building blocks, for which reason it cannot be reduced to a binary approach (justice/nonjustice), but necessarily possesses a gradual nature (less justice/more justice). 2. Retributive justice mechanisms and their shortcomings The end of the 20th century witnessed the revival of international criminal justice in response to mass atrocities (Bassiouni, 1997). The establishment of the International Criminal Court symbolises this development. This first permanent international court will have the competency to judge individuals for having committed international crimes (Kittichaisaree, 2001). It has been heralded by many as the start of a new era of justice. This era was already prepared by the establishment in 1993 and 1994 of two international ad hoc tribunals to deal with the gross human rights violations committed in the former Yugoslavia (ICTY) and in Rwanda (ICTR). Furthermore, the world has witnessed the prosecution and conviction of four Rwandans in a Belgian court, charged with complicity in genocide in Rwanda. Perpetrators of international crimes can be prosecuted outside their home country, in a "third country", on the basis of universal jurisdiction. It goes beyond the scope of this chapter to describe all the existing retributive justice mechanisms that are available to postconflict states when dealing with gross human rights violations. For this text we limit our review to the ICC, and assess its capacity to contribute to the four building blocks of postconflict justice. By doing so, we will also highlight the characteristics of retributive justice mechanisms at a national level.

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Truth The ICC was set up to unveil the factual truth about the crimes brought before it, and is equipped with procedures to make this possible. The Court is likely to produce a factual or forensic truth, and other types of truth are largely outside its legal realm. This is not to say that the Court could not play a role in creating an environment for these other types of truth to develop. The example of the Milosevic trial before the ICTY in The Hague, broadcasted in the former Yugoslavia and raising many new debates over there, is definitely a very interesting and educational one. Moreover, it should also be highlighted that the truth produced by the Court will first and foremost be an individual truth, relating to the facts of one or more individual cases presented before the judges. It can be argued that the adversary nature of trials will contribute little to explaining the causes of mass violence. The truth that is revealed in court trials, international and national, is a fragmented fact finding process to serve as evidence in proving or refuting guilt, but never to bring out the truth of the conflict as a social phenomenon. Trials do not allow perpetrators or survivors to produce a story that might coincide and lead to an explanation of the causes of the conflict. Transitional justice mechanisms should provide the necessary conditions for uncovering the social truth that allows perpetrators and survivors to tell their own story and regain control over their position and role in the conflict (Christie, 1977), and later also their place in the community. Such processes could lead to a better understanding of the causes of the conflict. Accountability The second building block, accountability, is even more straightforward before a criminal court, whether national or international. Its very raison d’être lies in establishing the criminal responsibility of individual perpetrators, and it will not deal with forms of administrative or political accountability. However, the investigations and trials may have administrative or political consequences in the countries of origin of those involved, or thought to be involved, in these crimes or in related crimes. More delicate is the issue of who will be tried by the Court, the type of offenders and the levels of command they have occupied or are still occupying in a country. Here again, it should be recalled that international criminal courts are necessarily subsidiary and can only deal with those cases that clearly demonstrate the lack of will or ability of a state to prosecute serious crimes. It remains to be seen how the ICC will interpret these provisions, but it is likely to be cautious in the starting phase of its activities in order to instil confidence in the State Parties and build up its own legitimacy, which tends to be a more general approach by international institutions. In any case, the experience of the two ad hoc tribunals suggests that the new Court can only prosecute and try very small numbers of perpetrators. Moreover, prosecuting and punishing perpetrators and removing them from society is nothing but a symptomatic response to violent conflicts. All the underlying aspects of a violent state conflict that dragged a country into a protracted state of conflict should therefore be analysed. All state sub-systems, including the criminal justice system, are affected by the conflict, and often also have a stake in the conflict. The police service, the courts, and the correctional service are to be rebuilt. Who is able to hold perpetrators accountable for their wrongdoings if national jurisdictions are often not capable of prosecuting the suspects, either because the judiciary no longer exists or is overthrown or corrupt, or because the task of trying all the perpetrators is insurmountable? National criminal justice systems have shown little hope with regard to the issue of accountability. International criminal justice systems on the other hand will definitely provide better tools for holding perpetrators accountable, although the potential of an international body in this regard should not be overestimated since it operates in a subsidiary capacity to national courts.


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Another related problem is the issue of who should be held accountable? Dealing with the most serious crimes of a violent state conflict, namely war crimes and crimes against humanity, one touches only the tip of the iceberg. It is quite a narrow-minded, and even dangerous, approach to limit ourselves to the most serious crimes. Criminal prosecution, which basically leads to removing the most dangerous perpetrators, might be necessary but it is only a symptomatic intervention in a latent state conflict where violence can easily reescalate. Prioritising (international) criminal justice as the best response to violent state conflict is therefore questionable. The use of selective trials before national or international tribunals could in this respect be limited to cases where incapacitation seems to be the only solution for restoring peace in a given society. Reparation The same holds true for the third building block, reparation. The International Court’s competence is not limited to awarding substantial amounts of money to the recognised victims of international crimes, possibly through the establishment of a Trust Fund (Shelton and Ingadottir, 2001), but also includes restitution and rehabilitation measures. Other forms of reparation, such as symbolic measures, and of course more structural measures to avoid a repetition of the said crimes, will fall outside its scope. Again, much will depend on the willingness of the ICC to adopt a dynamic stance on reparatory measures, and to fuel the debates about more extensive forms of reparation, not only for the concrete victims at hand, but also for similar victims or for similar crimes. However well-established the principle of international law with regard to receiving some form of reparation for harm suffered (Sarkin, 2004: 272), the issue has received significantly less attention than other transitional justice mechanisms (De Greiff, 2004). Reconciliation Finally, what about reconciliation? Similar to other courts and tribunals, both at the national and international level, the ICC was not set up with the objective of restoring relationships between people and providing reconciliation. This does not preclude the possibility that the activities of the Court may produce reconciliatory effects, either at the individual or collective level. Insofar as proceedings before the Court and the Court’s judgments come to be seen as purifying rituals which wash away the sequels of a horrendous past, individuals and collectives may embark upon the long road to (re)conciliation. But again, such enterprises are neither obvious nor straightforward and will require careful guidance from a multitude of complementary bodies, national and international. Moreover, international criminal justice mechanisms such as the ad hoc tribunals for Yugoslavia or Rwanda, are often perceived as top-down and short-term missions whereby the international community runs the risk of overlooking the social, cultural and historical characteristics of the conflict. The social geography of a conflict rather than a predetermined response based on a set of Western ideas and values should determine the policies to be implemented to redress mass victimisation (Drumbl, 2000). These mechanisms run the risk of being driven by economic and political motives (See also: Wilson, 2001), and lack the credibility to engage in the restoration of broken relationships in society. Victims’ concerns are often overlooked and neglected in the process of dealing with the past. It is almost ironical to believe that criminal justice mechanisms can produce reconciliation. There are many more legitimate responses to mass victimisation following violent state conflict that are more culturally and socially appropriate in attempting to bring people together. One example could be the Gacaca Tribunals in Rwanda (Penal Reform International, 2002). Responses could also include a blend of mechanisms that form an integrated response. East Timor could prove to be a good example of the complementary use of mixed tribunals and a truth commission.

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In sum, the strength of (international) criminal justice mechanisms and other retributive justice mechanisms lies in the establishment of factual truth and criminal responsibility in a limited number of individual cases, with the possibility of monetary compensation and restitution and rehabilitation for the victims. On the other hand, courts will hardly be able to establish any collective truth for large numbers of perpetrators, or any other type of responsibility, and it will not be able to provide any symbolic or more structural measures for the victims. And finally retributive justice mechanisms provide little or no scope for reconciliation. 3. Restorative justice mechanisms and their promises While the revival of international criminal justice is often regarded as the starting point for a new era of justice, we would like to challenge this contention. The former paragraph already exposed the major shortcomings of the retributive approach to post-conflict justice. Moreover, retributive justice objectives will continue to represent only one side of the “coin of justice”. It can be argued that the road to post-conflict justice requires further steps, that move beyond the limits of retributive justice. By prosecuting and punishing perpetrators of mass violence, many aspects of the phenomenon of mass victimisation – such as its societal, victimological, and especially its criminological relevance – are overlooked. To achieve the goals of post-conflict justice, namely to prevent the reoccurrence of violent conflict and repair the harm suffered during the conflict, it is crucial to consider a number of criminological questions. What are the causes of mass violence? What were the conditions that allowed this violent conflict to happen? What are the sociological and psychological reasons for people’s involvement in these atrocities? We will argue that a restorative justice approach to post-conflict situations can offer a more meaningful answer to these questions. It is interesting to note that in the historical background and while ideas of restorative justice were being developed over the years, the terms restitution, reparation, compensation, atonement, redress, community service, mediation and indemnification were used interchangeably in literature. The term restorative justice is relatively new and means different things depending on the country, state, and community where such programs exist. Restorative justice is, so to speak, an umbrella term for all sorts of ways to undo the wrong caused by crimes or offences. Restorative justice is, according to Lode Walgrave (1997), a distinct and unique response to crime and has to be distinguished clearly from retributive and rehabilitative responses to crime. Restorative justice focuses on losses, repairs the damage inflicted, seeks satisfied parties and views the victim as the central person in the whole process. Old concepts and responses to crime such as retributive and rehabilitative ones are no longer appropriate, and criminal justice systems are at breaking point. Complaints about the ability of current systems of justice to provide security and make life worthwhile are universal. In addition to the failure of justice systems are, according to David Currie (1997), the socio-cultural syndrome of individualistic and hedonistic value patterns, the neglect of collectivistic orientations and the erosion of the social embeddedness of individuals, responsible for rising crime rates in Western and consumer societies. Cultural and structural individualization leads to disintegration and affects mainly families, neighbourhoods and communities. In addition it reduces social disintegration and participation in and attachment to the institutions of society. Many scholars, including, for example, Lode Walgrave and Hilde Geudens (1997), believe that a way out of this dilemma could be found in the development of a restorative paradigm as a fully-fledged alternative to both the rehabilitative and retributive approaches to justice. The restorative justice philosophy is based on ancient concepts as developed by the Inuits, Maoris, Native Indians of America, Africans, and Aboriginals and can be found in its various forms from Alaska via California to New Zealand


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and Australia, in Africa, Asia, South America, and Europe. Many countries are now considering and implementing such programs and concepts after realising, according to Ezzat Fattah (1997), that what criminal justice systems need in times of growing complexity is decentralization, de-formalization, downscaling, restructuring, de-specialization, and decriminalization or, in other words, a criminal justice system based on restorative justice. The importance of restorative justice philosophy can be seen in the fact that it has been incorporated into newer concepts of policing, prevention programs, and within the context of justice systems. The traditional style of policing was the maintenance of public peace and order, enforcement of laws, making of arrests, and provision of short-term solutions to problems. It ignored the old principles and aspects of the community's and citizens' welfare and their cooperation with the police. Dissatisfaction with the traditional policing style led to the development of community- and problem-oriented policing. The philosophy of community- and problem-oriented policing is proactive and promotes long-term concepts for solving crime problems, produce victims in a given community, affect our quality of life, or increase our fear of crime, This philosophy has a stance also on other community issues. Communityand problem-oriented policing implies special cooperation between the police, citizens, and the community for crime prevention. The concepts try to involve every citizen of a community in activities to reduce and control acute crime problems, victimization, drug markets, fear of crime, and the decline of the neighbourhood in order to improve the quality of life in the community. These new forms of policing fit very well into the restorative justice paradigm and its philosophy. One of the key elements in Tony Marshall's (1996, p. 37) definition is that "all parties with a stake in a specific offence come together to resolve collectively how to deal with the aftermath of the offence and its implication for the future". If one substitutes the words "stake in a specific offence" with stake in a specific community and considers as key players in the community its citizens, potential offenders and victims, policemen and other interested parties, one truly has a restorative justice model. In examining the views of citizens and citizens’ expectations with regard to policing we concluded in a study here in Tübingen (Weitekamp, Kerner and Meier, 1996, 2003) that: (1) citizens want a strong police force with high visibility in their neighbourhood and (2) that citizens want police officers that are their friends and helpers and are prepared and willing to handle all kinds of problems within the community. We concluded that these expectations can best be accomplished by making offenders, and even more importantly the victims of crimes, an important part of the existing concepts of problem- and community-oriented policing. By introducing such a balanced restorative justice model, this approach covers a range of aspects including crime, fear of crime, crime prevention, and the improvement of the quality of life for all involved. Quite a similar approach is taken by the preventive model of "communities that care", developed by David Hawkins and his colleagues (1993) in Seattle. Three conditions are essential for their model: (1) risk factors have to be identified, especially for groups in a reasonable way such as the child, the family, and the environment; (2) means available have to be proven to be effective; and (3) a consistent and stable prevention policy in a joint effort by the agencies involved who conduct a concerted action in which collaboration is essential. In order to create such communities the authors worked out nine steps to creating caring communities. Again, the conditions and steps of the "community that cares" program have much in common with the restorative justice paradigm in that they bring together all the parties involved and try to heal a situation or improve the quality of life in the community by reducing fear of crime and avoiding victimization of its citizens.

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Understanding mass violence through victim-offender dialogue To state that restorative justice is of growing importance inside and outside the criminal justice system of many countries is nothing less than a truism. Although no commonly accepted definition seems to exist, literature makes frequent reference to two definitions. Marshall defines restorative justice as “a process whereby parties with a stake in a specific offence resolve collectively how to deal with the aftermath of the offence and its implications for the future” (Marshall, 1999), whereas Bazemore and Walgrave are more goaloriented, as they formulate restorative justice as “every action that is primarily oriented towards doing justice by repairing the harm that has been caused by the crime” (Weitekamp, 1999: 48). Walgrave (2005) rightly points out that Marshall’s definition has two important shortcomings: first, it does not state that the outcome of the process must be restorative or reparative and secondly, it excludes actions that may lead to reparative outcomes without the parties having to come together, as in cases of victim support where communication between the parties is often very poor or absent, but where imposed community service can have restorative value. Walgrave (2005) favours the definition of Zehr (2002) which orients the process towards restoration, and which states that restorative justice is a process which involves, to the extent possible, those who have a stake in a specific offence in collectively defining and addressing harms, needs and obligations in order to heal and put things right insofar as possible. This is, according to Walgrave (2005), a clearly process-based definition, which may exclude (partly) reparative actions through imposed obligations. Zehr and Mika (1977) consider the fundamental components as follows: “Crime is fundamentally a violation of people and interpersonal relationships, violations create obligations and liabilities and restorative justice seek to heal and put right the wrongs.” In this context Van Ness and Heetderks Strong (2002) point out that restorative justice is a different way of thinking about crime and our response to it. It focuses on the harm caused by crime and repairing the harm done to victims and reducing future harm by preventing crime. Therefore, need offenders assume responsibility for their actions and the harm they have caused? Restorative justice seeks redress for the victim, recompense by offenders and reintegration of both within communities. This is achieved through co-operation by communities and the government. For Dignan and Marshall (2001) restorative justice has the following characteristics: the offenders’ personal accountability to those harmed by an offence, an inclusive decision-making process incorporating the key players, and the goal of putting right the harm caused by an offence. Walgrave (2005) criticizes all these definitional issues as unnecessary and confusing and pleads for an adaptation of the earlier Bazemore and Walgrave definition as follows: “restorative justice is an option for doing justice after the occurrence of an offence which is primarily oriented towards repairing the individual, relational and social harm that is caused by an offence”. We think that it is more important to identify key principles than to agree on the exact definition of restorative justice: 1) Personalism: crime is a violation of people and their relationships rather than a violation of law; 2) Reparation: the primary goal is to repair the harm of the victim rather than to punish the perpetrator; 3) Reintegration: the aim is to reintegrate the perpetrator rather than to alienate and isolate them from the society; 4) Participation: the objective is to encourage the involvement of all direct and possibly also indirect stakeholders to deal with the crime collectively (Roche, 2003).


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The bottom line of restorative justice is to view crime as a violation of people and relations, thereby creating an obligation to make things right. This process should be facilitated by bringing victims and offenders together on a voluntary basis, e.g. in victim-offender mediation programmes, and possibly also with the other stakeholders, e.g. in restorative justice conferences. In these forums, room is made for dialogue and for creating an opportunity, with the help of a mediator, to restore the harm done and to reconcile the relationship. The international community, personified by the United Nations Economic and Social Council (ECOSOC), has subscribed to this idea by adopting in 2000 a resolution encouraging countries to use Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters in developing and implementing restorative justice in their countries (http://www.restorativejustice.org). It is striking, however, that developments in restorative justice are almost exclusively focused on less serious property crimes, and juvenile crime. There are a few isolated examples of victim-offender programmes for serious interpersonal crimes (see, for example, Gustafson, 1997; Umbreit, Bradshaw, and Coates, 2003). Yet, until recently, virtually no attention has been paid to crimes of a political nature, sometimes reaching the level of mass violence and mass victimisation. Truth commissions as restorative mechanisms In the field of transitional justice there are several examples of mechanisms, set up in the aftermath of mass violence, that display restorative aspects. As mentioned above, the best example are truth commissions, non-judicial mechanisms of conflict resolution (Hayner, 2001; Villa-Vicencio, 2000). Such commissions of inquiry are increasingly considered as a valuable and complementary practice to civil or criminal courts because of their strong emphasis on truth, reparation, and reconciliation (Christie, 2001). The restorative dimension is particularly present at two levels: first, the institutional level of the commission, as it provides a public forum for victims and offenders; and secondly, at the interpersonal level where individual victims and offenders can meet during or after the process of the truth commission with a view to dialogue, personal healing, or restoration in the long-term. Specific case studies, e.g. on the TRC in South Africa, can reveal how and to what degree truth commissions fulfil their promise of providing restorative justice (Parmentier, 2001). Other examples of mechanisms with restorative justice aspects include customary mechanisms, also called community-based mechanisms, such as the Gacaca Tribunals in Rwanda, set up to process the high numbers of alleged perpetrators of genocide in detention, and with the objective of striking a balance between justice and reconciliation (Uvin, 2003; Penal Reform International, 2003). The large majority of these mechanisms operate at the national level, while a handful are partly composed of international members. On the road to post-conflict justice, it is of equal value to explore the new territory of restorative justice practices in dealing with situations of mass violence. Three aspects seem of particular importance, again keeping in mind the requirements of effectiveness and legitimacy: (1) a recognition of the complementary character of restorative and retributive mechanisms, each with their specific characteristics and their specific contribution to situations of mass violence; (2) genuine co-operation between courts and tribunals on the one hand, and truth commissions and other similar mechanisms on the other hand, built on the idea of accountability and reconciliation in the long run; and (3) the development of “good practices” for restorative mechanisms in dealing with crimes of mass violence. This can take the form of setting up specific programmes of assistance and protection to victims and witnesses, organising forums where victims and perpetrators can meet and procedures to follow-up on these encounters, etc. It is clear from the analysis provided in this part that an integrated view towards postconflict justice cannot be achieved without combining coercive and co-operative tools. This

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approach is illustrated in Figure 2, which combines the earlier TARR model with an overview of mechanisms for retributive justice (judicial) and restorative justice (non-judicial) at the national and international level. The building blocks of post-conflict justice through a restorative lens In this last part we will turn back to the restorative justice principles and sketch their relationship with the earlier constituting parts of the TARR model, the post-conflict justice building blocks. We will show how each of the principles of restorative justice (cf. supra) can be paired with one of the building blocks. From a normative point of view we would like to argue that a fully-fledged restorative justice approach in combination with limited retributive measures is to be strived for in any post-conflict situation. Figure 3 highlights the most important principles of restorative justice, as they can be matched with the earlier TARR model.

Figure 2: Retributive (judicial) and restorative (non-judicial) justice mechanisms in the TARR model (Source: S. Parmentier and K. Vanspauwen)


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Figure 3: TARR model in relation to restorative justice principles (Source: S. Parmentier and K. Vanspauwen)

Accountability and reintegration The restorative justice principle of reintegration demands that a society aim to hold perpetrators accountable for their wrongdoings in a supportive way, taking into account all the measures necessary to work towards their reintegration into society. The merely punitive approach of trials leaves little room for future reintegration. The same arguments apply to states that choose not to face their violent past, and decide to live in a permanent state of denial (Cohen, 2001). Amnesia would be a response that would fit into this category. And finally, the quasi accountability mechanisms such as amnesty legislations are highly problematic in their search for reintegration because they actually choose to live with impunity by letting perpetrators off easily. A restorative justice approach to the issue of accountability intends to co-operate with the perpetrator. It is seen as a collaborative approach to resolving problems, which seeks to reintegrate rather then to alienate or isolate the perpetrator from society. We argue that providing a high level of support to perpetrators while not minimising the control over the accountability process could provide the most sustainable and durable response to gross human rights violations. However a straight-forward approach does not seem to be the most common way of dealing with post-conflict situations. Every situation has to take an uncharted path (Huyse, 2003). Therefore multiple options are often put forward. Leading scholars in the field of transitional justice see punitive justice as one of the necessary elements in the overall process of reconciliation (Huyse, 2003; Minow, 1998; Kritz, 1995). Others have proposed a straight-forward approach that would incorporate (1) trials for notorious murderers and the leaders of the genocide, (2) community-based reintegrative shaming for all other offenders, (3) a truth commission able to obtain, in some cases perhaps even by compulsion, testimony from national as well as international officials, (4) the creation of an international fund to facilitate compensation for the victims of the conflict, and (5) elite accommodation of government and institutions channelling cross-cutting political cleavages as a prelude to eventual democracy (Drumbl, 2000).

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Truth and participation The principle of participation refers to the dimension of empowerment. It stresses that those affected by the crime need to regain their sense of autonomy. This can only be achieved when the stakeholders are actively involved in the process. We have distinguished two categories of stakeholders: those directly affected by the crime, and those indirectly involved but not emotionally affected. In post-conflict situations it is an enormous task to clarify the different roles and the stakeholders that were affected either directly or indirectly, either personally or structurally, by a violent past where gross violations of human rights were committed by the state on the one hand, and by groups within society (liberation movements, activists, minorities, etc.) on the other hand. Very few people will appear to not have been affected at all, so that dealing with mass victimisation in post-conflict situations will seems to be an insurmountable task. The problematic situation occurs when one tends to use systematically a narrow definition of victim. In the process of the South African TRC, for example, many victims could not be taken into account because they were not victimised according to the Mandate. Therefore only the victims of gross human rights violations were defined as victims in the TRC Act. There was no feeling of justice at all for a huge number of victims of structural apartheid (Mamdani, 1997). Many victims felt disappointed and embittered after the proceedings of the TRC (Gibson and Gouws, 1999). These victims felt their rights and feelings had been neglected and that justice was out of the question. These groups of victims include people who were forcibly removed and displaced on the basis of their race and people who suffered from the everyday policies and practices of apartheid, which undoubtedly resulted in millions of victims but not in killings, abduction, torture, or severe ill-treatment as defined by the commission. In this respect, it is important to consider the distinction between individual and collective victims, direct and indirect victims, and to see to what extent we can broaden the definition of victims so that they can all have the place they deserve in the transition process. Apart from the direct stakeholders, it is crucial to distinguish a third party, often referred to as the beneficiaries of crimes or human rights violations. There is a great deal of controversy around the issue of involving the benefiting parties in the process of accountability and reparation. The experiences of the South African TRC on the (lack of) involvement of beneficiaries show the sensitive character of this matter. The amnesty hearings of the TRC focused on individual perpetrators. In this way, the structural evil of apartheid as a system was neglected in favour of the misdeeds committed by some individuals. According to some, the beneficiaries of apartheid were let off the hook, without being obliged to confront their past (Terreblanche, 2000; Mamdani, 2000). Reparation Apart from the prevention of reoccurrence of the conflict, the restorative justice principle of reparation is a primary goal of transitional justice. For a long time in the debates on transitional justice, reparation was promulgated as a necessary mechanism but there are few examples of a successful outcome. In the years to come, reparation will have to be high on the transitional justice agenda. Recent research projects launched by the International Centre for Transitional Justice show at least interesting progress in this direction (Wierda and De Greiff, 2004).


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Reconciliation and personalism The restorative justice principle of personalism refers to the social dimension of “emotional involvement” that enables the conflicting parties to restore broken relationships. The crime of mass violence is a violation of people rather than a violation of law. We suggest that truth commissions bear the promise of being a fully restorative justice process if they stress the importance of the encounter. A victim-offender dialogue should be made possible through the process. The key issue of “encounter” should be included as a new element in future truth commissions. To date no single truth commission has gone as far as bringing perpetrators and victims together to deal collectively with the aftermath of the violent conflict. Action research carried out in the aftermath of the TRC by the South African Centre for the Study of Violence and Reconciliation (CSVR) will reveal whether this principle of encounter is indeed a tool to be taken into account by future truth commissions. In the South African case, and this would presumably be the case for other post-conflict nations as well, there is quite a lack of information on how and, more importantly, to what extent victims’ expectations were effectively met through the TRC process. Very little is known about their backgrounds, expectations or motivations (Verdoolaege, 2002). As for the offenders, it has already been shown that if they are brought around the table it might help to reverse the process of the dehumanisation of the perpetrator (Godoba-Madikizela, 2003; Drakulic, 2004). From restorative justice models to post-conflict justice models Walgrave (2005) considers the Bazemore and Walgrave (1999) definition of restorative justice to be an essentialist definition reduced to its most crucial characteristics, namely the aim of reparation, which does not mention underlying principles nor specific requirements or rites for the parties involved. According to Walgrave it may also include nondeliberative interventions, such as victim support, or imposed restitution or community service if it is intended as symbolic compensation for the harm to social life. This view is known in literature as the “maximalist” view. McCold (2000) opposes this view and developed a purist view on restorative justice based unitely on voluntary co-operation between the stakeholders and rejecting any use of coercion under the restorative justice label. He bases his view on the Marshall definition which considers the deliberative and inclusionary process as a key character of restorative justice. Walgrave (2005) rightly points out that Walgrave (2000) and Bazemore (2000) think that the purist approach would keep restorative justice at the margin of responding to crime, leaving the mainstream to the traditional punitive justice system. Wachtel and McCold (2002) developed a restorative justice theory in which they identified direct stakeholders in the process as well indirect stakeholders (see figure below).

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Figure 4: Stakeholders Needs (Source: McCold and Wachtel, 2002)

Figure 5: Stakeholders in transitional justice processes (Source: Vanspauwen, 2003)


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Vanspauwen took the Wachtel and McCold model and transferred it to post-conflict or transitional justice situations and the result looks like the model above.

Figure 6: Restorative justice typology (Source: McCold and Wachtel, 2002)

Figure 7: Restorative transitional justice typology (Source: Vanspauwen, 2003)

In a further step Wachtel and McCold (2002) developed types and degrees of restorative justice practices and were able to distinguish fully, mostly and partly restorative justice practices. They consider family group conferences, peace circles, and community confer-

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encing to be fully restorative while all other practices are only mostly or partly restorative, as the figure below shows. Vanspauwen again transferred the Wachtel and McCold model to situations of transitional or post-conflict situations and our research team has so far identified six practices which might be considered as fully restorative, although in some cases questions arise about such a classification. We argue however that it is quite useful to look at the situation in countries of transition in order to find out whether a more punitive or restorative approach is taken in dealing with the past.

Figure 8: Restorative regulation pyramid (Source: Braithwaite, 2002)

Figure 9: Responsive regulatory pyramid of international diplomacy (Source: Braithwaite 2002, 195).


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Braithwaite argues that in restorative justice the use of coercion is sometimes unavoidable. One should always take a restorative justice approach and gradually increase the level of pressure and coercion and if nothing convinces the stakeholders to enter a restorative practice go back to the retributive approach, as in the cases of traditional trials. Braithwaite (2002) attempted also to create a pyramid for mass victimization and gross human rights violations and what can be done about them from a restorative point of view. We agree with this pyramid to the degree that this approach might work for the United Nations or the European Community or any other inter-governmental agencies. However, we think that this pyramid has one fatal flaw, namely that it assumes at the bottom restorative peacemaking which in our opinion does not exist.

Figure 10: Restorative justice peace-building Bougainville style (Source: Howley, 2002)

We think the approach by Howley is more useful where after military intervention a peacemaking process is started and at the top restorative peacemaking is reached.

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Figure 11: (Source: Weitekamp 2004)

Weitekamp (2004) proposed to use the pyramids as set out in the illustration above, one for diplomatic pressure and the other after forceful intervention. As Sachs (2000) rightly argues we need to approach these situations in a bottom-up manner and not with a top-down approach. Conclusion The above study on the importance of applying restorative justice principles to cases of violent state conflict was primarily a theoretical exercise requiring further research. The development of a framework, such as the TARR model, is not merely a typology for the purpose of analysing current transitional justice developments. Each of its constituting concepts and the interconnectedness between some of them are already being discussed in the context of


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post-conflict case studies (See e.g.: Gibson, 2004; Villa-Vicencio and Doxtader, 2003; Rotberg and Thompson, 2000). The next step would be to validate these presumptions with empirical research. Throughout the text we have repeatedly described how restorative justice became part of the debate in South Africa when the TRC was launched in 1995. Restorative justice was clearly defined and put forward in the mandate of the TRC. However the success of the TRC in achieving its restorative objectives is highly debated and questioned today (VillaVicencio, 2001; Villa-Vicencio, 2003). We are convinced that South Africa has shown the world that this unique process of a restorative truth commission has brought about some invaluable steps on the road to reconciliation. The TRC can be a catalyst for other societies to fully explore the opportunities for maximal restorative justice strategies. However, we argue that future truth commissions should focus more on the principles of restorative justice. Referring back to the earlier TARR model we have clearly identified future lessons. First, truth should be related to the need for inclusion and the involvement of all the stakeholders in the conflict; next, accountability should be geared at supporting the perpetrators in assuming full responsibility while attempting to reintegrate them into society. Furthermore, repairing the harm to victims should be the primary objective in any situation. And, finally, the truth-seeking process that is facilitated between all stakeholders in the conflict and aims at reparation for victims creates all the conditions for a meaningful emotional exchange between the parties to the decision-making process. While the revival of international criminal justice may look promising, it is important not to limit a post-conflict justice approach to retributive criminal justice mechanisms. As Drumbl rightly argues: “[I]nternational legal superstructures including the ICC, the ICTY, and the ICTR, have been built with little attention to developing a criminology of mass violence or to theorising a sentencing policy for perpetrators of such violence.” (Drumbl, 2000). We further tried to elaborate on how restorative justice models can be applied to situations of mass victimization and gross human rights violations. We think the pyramids can be a valuable tool in developing our approach further, but in the end we still have a long way to go.

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Mental Health in the Wake of War and Terrorism: Lessons from Humanitarian Experience in Victim Rehabilitation Claire COLLIARD* Abstract. Collective violence is a critical concern worldwide. This article explores how the recent changes in the nature of conflicts – having evolved from the classic "Clausewitzian" to what is called "identity conflicts" – bring to the fore psychosocial community and individual issues that had never been seen before the Cold War. We shall see how humanitarian assistance in complex emergencies brings us a wealth of information and experience in the field of collective psychological trauma and victimization. A strict notion of "mental health" which is derived from a strictly Western based medical model, has evolved into a "psychosocial" view that empowers whole communities to explore their traditional resources and values as well as their resilience in the face of protracted conflict.

1. Introduction Changes since World War II in the nature and size of conflicts have led to changes in the way in which help is given to populations who are victims of all kinds of violence, wars, ethnic conflicts, natural disasters against a background of political violence, popular uprisings, dictatorships, massacres, torture, terrorism, anti-personnel mines, etc. Conflicts have in effect moved on from a Clausewitzian-type of hostility between States to so-called identity conflicts, whether ethnic, religious or ideological, often combined with the implosion of the States themselves. Whole populations have become the stake and the hostage of myriads of small political groups and little by little a picture of endemic violence emerges throughout the world. Moreover, these identity conflicts are liable to propel masses of refugees outside their own frontiers, thus provoking movements of populations on a scale never seen before. Thus any rehabilitation of victim populations must take account of a number of new parameters, such as globalisation, multiculturalism, communication and information networks, vast financial resources, the birth of a global civil society, to name but a few. 2. The new landscape of humanitarian assistance One of the consequences of these changes is a radical transformation in the landscape of humanitarian assistance over the last twenty or so years. The planetary phenomenon of globalisation is one of the main explanations. Agencies have always specialised in the rehabilitation of victimized populations, but they have had to adapt to these new parameters and undergo changes themselves. For example, by becoming more professional, using recourse to managerial methods drawn from the world of business, establishing best practices for all types of intervention, creating a worldwide network of mutual aid and employing material means such as never seen before. Consequently, the humanitarian world has become an inescapable political and socioeconomic entity, thus creating new problems such *

Director of the Centre for Humanitarian Psychology, Geneva, Switzerland.

C. Colliard / Mental Health in the Wake of War and Terrorism

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as its place on the international political stage, the continued redefinition of its nature and mission, the principle of neutrality, its relations with the military, etc. This is not the subject of this article and we shall not examine it further. What is important to note, however, is the new way of carrying out programmes in every field of assistance, for example that of the mental health of victim populations. Until about ten years ago, this was thought to be one amongst other elements of national post-conflict reconstruction, often of secondary importance. One helped to rebuild hospitals, including a system of psychiatric care, injecting a certain number of Western medical concepts. But humanitarian aid stopped there. In the midst of the emergency frenzy, and for many years, no one took account of the psychological and moral damage linked to violence, which clearly deeply affects any rehabilitation process and any reconstruction. But how should this be treated when dealing with hordes of refugees or with whole populations decimated by a war or by State violence? Mass victimisation requires special consideration and it is not at all certain that the notions of mental health, as systematised in the West, can genuinely bring solutions at all levels to this reality. Dr. Richard Mollica, Director of the Harvard University Programme in Refugee Trauma, together with the Fulbright New Century Scholars Programme, has founded The Billion Project aiming at strengthening the role of mental health programs for the reconstruction of post-conflict communities and societies. "Recent scientific studies have revealed the enormous mental health impact of human aggression on the health status and daily functioning of affected individuals. No longer can large numbers of damaged citizens be ignored by the international community in the economic and social recovery of post conflict societies. Indigenous resources need to be maximally utilized in a culturally effective manner to promote healing". (Mollica, 2002) However, in the world of Non-Governmental Organizations and the victimized populations themselves, there has always been a certain mistrust of everything psychological, by populations who have been hurt as well as by Non-Governmental Organisations. Alaster Ager, in his article "Psychology and Humanitarian Assistance" (2004), gives many reasons for this. The first one is that Western psychology is seen as treating the behaviour of persons taken individually, whereas humanitarian operations target tens of thousands of people, if not hundreds of thousands. Furthermore, psychology, particularly clinical psychology, is concerned with the internal dynamics of an individual and with his/her mental and emotional life, whereas the organisations target the individual’s external world and the factors which need to be modified in the environment and in entire communities. Also, psychology is seen as imposing Western values on the whole world, a kind of cultural imperialism of sorts. One of the aspects of this Western culture, as expressed both in the fields of mental health and victimology, is an obsession with the abnormal, the pathological and the state of the victim. It is also a disturbing blindness in relation to the notion of zero risk. An outcome of this is thirty years of research into the psychology of trauma. 3. The paradigm of mental health in humanitarian assistance A good example centres around the notion of psychic trauma, expressed as the famous Post-Traumatic Stress Disorder (PTSD), which has been applied, quite systematically, over the last ten years or so to refugees and to victims of wars and other social violence. We often forget that this diagnostic category, which is frequently used uncritically throughout the world by all sorts of institutions and in particular by humanitarian organisations, was created by the American Psychiatric Association and thus draws on the value system of American society. Since 1987, when the psychiatric diagnostic manual, then termed DSM-

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III, was revised, the notion of psychic trauma and of PTSD, thereafter described as an illness, has significantly influenced the creation of humanitarian programmes for mental health. It offered a framework accompanied by numerous convenient tools for evaluation, for example to study the reactions of children affected by war. Research covered large groups in various populations, such as Rwanda, the Balkans and Afghanistan, submitting them to enquiries which were often cumbersome, and could be re-traumatizing for the people. This choice of method is increasingly being disputed. As mental health programmes grow in number, more and more psychologists – and not exclusively psychiatrists – are involved in their creation and application. And their views and practices noticeably influence thinking in this field. In contrast to this trend, there has developed an ever greater critical consensus on many aspects: Firstly, an exclusive focus on PTSD does not take account of the complexity of psychological trauma and the multiple facets of a traumatic experience. Other consequences of violence such as depression and drug addiction, for example, must be associated with it. Moreover, this complexity needs to be integrated into a broader analysis of the political and social context, which is certainly not always done. Mental health professionals are not often knowledgeable in those fields. It is also difficult to apply these psychiatric categories to populations in other cultures, in which some Western concepts have no equivalent words for translating trauma, psychosis, addiction or hallucination, for example. Furthermore, it is tendentious to try and "pathologise" whole populations. In effect, their suffering and misfortune are not mental illnesses even if they often give rise to similar symptoms. Is it relevant to use the term schizophrenic for a wartime victim of rape or for a child who has suffered from bombing? And then, what kind of psychiatric treatment can be given once the person is labelled as such in a country where the whole infrastructure is in ruin? The outcome of this is that scientific research in the fields of mental health and victimology, when applied to humanitarian intervention, have been biased by such a viewpoint, focusing on the vulnerability of the affected populations, rather than on their capacity for collective resilience. And thus in recent years, the need to rethink the question of mental health in humanitarian aid has become evident. 4. A change in paradigm Long before this trend had set in, a global vision of health had already been defined in the Constitution of the World Health Organization (WHO) as being "a state of complete physical, mental and social well-being, and not merely the absence of disease or infirmity". There is no stress here on pathology, but rather on a global well-being, covering equally the bodily, psychological and social health of populations. This vision of man and this choice of values have nourished the thoughts of generations of health professionals and have clearly led to the enrichment of the field of public health. And as regards humanitarian action, this vision has enabled intervention to be opened up and enlarged beyond the notions of mental health and psychiatry. Bridges were established with other disciplines such as human rights, anthropology, religion, sociology, development economics, etc. Today we tend to replace the term mental health by that of psychosocial intervention. It is more systemic. It can find expression in rehabilitation programmes which can run from the creation of psychiatric services of the Western variety to programmes which enable the victims to re-establish their social links and take their own lives in hand. For populations in which the social network is essentially based on the family and where the individual exists


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only in the context of the family, this psychosocial approach becomes more relevant. Western individualism simply has no place in traditional societies. 5. A psychosocial model of collective rehabilitation When humanitarian psychosocial programmes are being developed, the need has recently become clear for identifying shared hypotheses, setting out points of tension and indicating the key domains and principles which should govern an effective practice of rehabilitation for entire populations. For the last five years or so, a study group on these themes, the Psychosocial Working Group, based in London, has been formed through the initiative of several large NGOs and European universities. The conceptual model which they have developed is systemic and integrates the notion of traumatic stress into a holistic framework which certainly includes the mental health of individuals, but also their family environment and community, in the post-conflict or post-disaster context. This group has worked especially on the question of child victims of wars, all within this systemic perspective. Thus an analytical model has been created. It suggests that the mental health of individuals is only one of the constituent elements of the human capacity to recover and rebuild. And the group’s research starts not from the hypothesis of pathology or the notion of victimisation, or even from that of vulnerability, but from a vision of the future rehabilitation and well-being of a society and its capacity to find its own resources for its reconstruction. This model is based on three key elements: • Human capacity, which includes physical and mental health, as well as the social skills of the individual and his family; • Social ecology, or the social network within families, friends, cultural and religious institutions and the type of support which they give to their members, and links with civil and political authorities. This is then referred to as the “social capital of a community”; • Culture and values of this society with its own traditions. In the responses of the populations which are affected, these three domains interact: the social network serves to protect fundamental cultural activities; human capacity helps restore the social links; the culture and its values support the general well-being of the individual and the community. The ability of the community to draw on its own resources is a measure of its degree of resilience. This model invites several remarks. For one thing, it is important to take into account the time element when introducing programmes of psychosocial rehabilitation. The human psyche takes immeasurable time to digest its misfortunes, and it is important to build programmes around this reality. Our Western society, preoccupied with efficiency, wants to rehabilitate fast. Secondly, the model perceives communities as living beings and not as mechanical elements, caught in a flowchart. They are constantly changing and evolving. Integrating the experience of a disaster in a dynamic way is essential to the process of rehabilitation. Moreover, the impact of traumatising events on communities is seen in relation to its effect on resources. The latter may be destroyed, but some of them may on the contrary be reinforced. For example, social links may be made stronger through the common experience of a disaster. Finally, it is not only the events which may shatter a society, but the interpretation of events may give meaning to the tragic experience. And in return this gives the measure of the community’s capacity for resilience. 6. Example of a psychosocial programme in Afghanistan More than fifteen years ago, UNICEF, together with Save the Children US, created programmes intended to treat directly the war trauma of children, based essentially on a West-

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ern orientation which was primarily medical. The effort focussed mainly on the evaluation of PTSD by means of checklists to diagnose the extent of it, so as to be able to introduce large-scale counselling programmes. Then towards the end of the 1990s, for various reasons including the ineffectiveness of this kind of programme, a lack of qualified mental health personnel and a shortage of funds, this approach was abandoned. It has now been well established through the evaluation of a great deal of humanitarian intervention, that most of the child population is not affected by a programme of mental health, but rather by a psychosocial approach in the wider sense, including for example educational and recreational activities, greater involvement in the life of the community, learning to take decisions, etc. And this particular programme was thereafter divided into three levels of risk affecting populations victimised by wars, the smallest part being the one that could be called "pathological". Conversely, the majority of those people were defined as having the necessary resource and health for recovery. Subsequently in 2003, the two organizations issued a report, "The Children of Kabul", which recommended that instead of focusing on individual trauma counselling, the best interests of the vast majority of Afghan children would be served through a broader psychosocial response. The survey found that they derived strength and hope through support received from their families and the protection experienced through being part of the larger community. Their strong faith and striving for morality and courage in times of difficulty were other factors which helped them to cope. Hence, a whole new program was created integrating the paradigm shift described above. 7. Programmes for children of war Another example of this psychosocial approach to rehabilitation is international assistance for child soldiers, notably in African countries. It has been constant observed that "mental or psychiatric disorders are among the conditions for which modern or western medical help is least likely to be sought", (Alcinda Honwana -1999). "Such disorders are in fact quite treatable by traditional healers, based on indigenous understandings of how war affects the minds and behaviour of individuals, and on shared beliefs of how spiritual forces intervene in such processes". Alcinda Honwana, an anthropologist from Mozambique and former Representative for Children and Armed Conflict at the Office of the UN, has been researching the processes of post-war rehabilitation and social reintegration of children affected by conflicts. Her approach focuses on looking at local community mechanisms for healing and reintegrating children who committed atrocities during war, in particular the many local mechanisms of reconciliation, using traditional cultural means such as post-war cleansing and healing rituals. These rituals are performed to help both children and adults in a community to come to terms with their experiences of war and to reconcile themselves with the mistakes of the past. The processes of healing work according to a holistic model, including all parts of the community, past, present and future, all economic and institutional levels, and/or a religious framework that gives global meaning to their horrible experiences. The striving towards reconciliation comes from the depth of the community's consciousness, far away from international aid. It grows in an organic fashion, in its own time. 8. The notion of resilience Psychosocial research in the field of humanitarian assistance, as said before, is in its infancy and has mostly used, up until a few years ago, the western conceptual framework of mental health and victimology.


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The change in paradigm which has been discussed here stresses a key principle in the rehabilitation of any victimised population, namely that it must and can recover, initially by drawing on its own resources, whether economic, institutional, psychosocial, ecological, thus quickly recovering a sense of empowerment. Consequently humanitarian assistance must develop its projects by relying not on a top-to-bottom system, but on a cooperative frame of mind. This is essentially a choice of values at the core of humanitarian assistance, a philosophical stance so to speak. At the heart of this principle is the notion of resilience. This is defined in a variety of ways, according to the field of social sciences to which it refers, in particular clinical and social psychology, as well as ecology and social ecology. Over ten years of scientific research in this area has come up with various definitions. However, most say the same thing. In a general sense, one may define it as the ability of individuals, or of social or natural systems, to “digest” a disturbance, to face up to a crisis, or to stand up to a change, whilst keeping their own identity and basic structure thanks to their own resources as well as to external ones (Brian Walker, 2004). To this definition, which is a general one related to ecosystems, psychology adds the idea of bouncing back after a traumatic experience, overcoming adversity and even thriving under difficult living conditions. It refers to a whole "coping" system focusing on resources and not on vulnerability and pathology. Social ecology has come up with various models, which could be very fruitful if applied in research concerning the victimization of large populations. It defines, for instance, a number of characteristics of resilience, which could be used as possible indicators, to measure the impact of mass victimization (C.S. Holling, 2004): One of them is defined as latitude, which is the maximum amount any system, natural or social, can be changed before crossing a threshold and loosing its ability to recover. Precariousness is how close the current state of the system is to that limit or threshold. These are very important indicators that can be applied to recovering victims. One may think of numerous examples, both historical and geographical, where whole populations have definitively disintegrated, where the enabling factors were never there or the magnitude of the crisis was too much to bear. Another characteristic of a resilient system is resistance - the ease or difficulty with which the system may be changed. A victimized population may be frozen in terror for a long time. International intervention may ease that resistance and help it to move on, however how and at what cost? Adaptability is the capacity of actors in any system to influence resilience, leading in turn to their capacity to manage its growth. A resilient ecosystem can theoretically withstand shocks and rebuild itself when necessary, if competent to adapt to new conditions. However, in social systems, resilience has the added capacity of humans to anticipate and plan for the future. This capability changes over time and can be developed as well as disappear. We are talking here of a process, which may be impeded by risk factors or may, on the contrary, be fostered by protective factors within the psychosocial system, which contributes to its maintenance, development or disappearance. Reduced resiliency increases the vulnerability of a system to disturbances with which it could formerly have coped. And when it is lost or decreased, a system can shift to a qualitatively different state. Restoring a system to its previous state though is often impossible or too costly. Resilience may be a characteristic not only of individuals, but also of whole groups, including families, schools, institutions, associations, organisations, work settings, neighbourhoods and cities. However, there is a need at present to encourage research in the field of social psychology on collective resilience, especially if this would help to understand better the processes of rehabilitation of mass victims in the wake of terrorism.

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If looking at resilience from the viewpoint of victimology, rather than evaluating the pathological reactions of a victimized population and creating substantial and costly programmes based on international financial resources, using a top-to-bottom model, one could ask other types of questions, such as what is the degree of resilience of a population which has suffered from a conflict or natural disaster and how can it be measured? What potential has this population to adapt and change, while integrating a traumatic experience without too much drain on its strengths? What are the indicators of that capacity? In this way, programmes could be built not in a needs-oriented perspective only, but in a resourceoriented one, focusing on the empowerment of individuals and communities. The key to enhanced resilience is diversity. This is a basic finding in the field of ecology and extends to social ecology. When the management of resources is shared by the group of stakeholders, decision-making is widely informed, proposing more options and more solutions. It encourages learning and novelty and thus, in turn, increases resilience. It is interesting to note here that human rights have always fought for the principle of diversity in human societies, thus coinciding with research carried out in the field of social ecology. 9. Conclusion The recent evolution of humanitarian aid has put in the foreground the importance of addressing the "invisible wounds" in the rehabilitation of mass victims. Moreover, in latter years, it has been understood that it is not enough to offer mental health treatment only to alleviate the psychological consequences of violence, since humanitarian assistance has to address ever bigger numbers of traumatised people. It has also become evident that these people have to be convinced to take their destiny into their own hands, draw on their deepest resources, both psychological and social, and that the it cannot be for the international community alone to support the political, economic and legal forces if one wants them to heal from the horror. Humanitarian psychosocial aid is thus in the process of developing a conceptual framework, one of the key concepts being resilience, as well as practical tools with which to implement a new paradigm. This means more scientific research to give pertinence to programmes, using a multidisciplinary approach. It becomes then an important way of integrating the practice of human rights and its philosophy, objectives and content, directly into humanitarian aid. References [1] A. Ager and M. Loughry, "Psychology & Humanitarian Assistance", The Journal of Humanitarian Assistance (online journal) (2004); [2] Jo de Berry, A. Fazili, S. Farhad, F. Nasiry, S. Hashemi, M. Hakimi, "The Children of Kabul, Discussions with Afghan Families", Save the Children USA &UNICEF, (2003); [3] E.C. Grenne and A. Honwana, "Indigenous Healing of War Affected Children in Africa", in IK Notes No.10 (July 1999), Knowledge and Learning Centre Africa Region, World Bank [4] C.S. Holling, B. Walker, S. Carpenter and A. Kinzig, "Resilience, Adaptability and Transformability in Social-ecological Systems", Ecology and Society 9(2): 5, (2004); [5] R. Mollica, "New Principles and Practices for Recovery of Post-conflict Societies", The Fulbright New Century Scholars Program (2002) pp1-2; [6] D. Summerfield, "War and mental health: a brief overview", British Medical Journal (July 22, 2000); [7] K. Tusaie and J. Dyer, "Resilience: A Historical Review of the Construct", Holistic Nursing Practice (Jan/Febr 2004) Vol.18-1, pp.3-10;


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[8] B. Walker, S. Carpenter, J. Anderies, N. Abel, G. Cumming, M. Janssen, L. Lebel, J. Norberg, G.D.Peterson and R. Pritchard, "Resilience Management in Social-ecological Systems: a Working Hypothesis for a Participatory Approach", Conservation Ecology 6(1): 14, (2002). [9] Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), American Psychiatric Association (1994), pp.424-429; [10] The Psychosocial Working Group (PWG) www.forcedmigration.org/psychosocial/PWGinfo.htm.


V. Necessity to Reconstruct War-Affected Communities in Order to Counter-Terrorism



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Rebuilding War-Affected Societies: Implementing the ‘Responsibility to Protect’ Agenda Alistair D. EDGAR* Abstract. In an effort to move beyond the impasse between defenders of the notion of sovereignty and advocates of a new norm of humanitarian intervention, the International Commission on Intervention and State Sovereignty sought to develop concepts that could bridge these apparently contradictory positions. The ICISS argued that states held a special, primary responsibility to protect the rights and safety of all of their citizens. Should a state be unable or unwilling to meet its responsibility, according to the ICISS’ argument, this task then would shift to the international community, which would need to show that generally agreed criteria existed to justify such intervention. This chapter examines the practical benefits and challenges – political, economic, military and other – of trying to implement the conflict management and peace building agenda set out by the ICISS report for the international community in a time when smaller states are fearful, perhaps justifiably, that such an agenda could also be abused by powerful states looking to disguise narrowly self-interested intervention in other countries’ affairs with claims of broader international legitimacy in pursuing a “war on terrorism”.

Introduction The idea that it is important to assist in the rebuilding of war-affected states, societies and communities in order to counter the threat posed by terrorism and terrorist groups is based on the premise that a state or society caught up in large-scale violence may offer either a breeding ground and catalyst for new terrorists, or at least a convenient geopolitical space within which such groups can operate in relative freedom due to the absence of a strong law enforcement structure. This premise, it should be noted, is distinct from any discussions about undertaking pre-emptive or punitive actions against a state that may be known and internationally recognized as – or even just argued by some states to be – a sponsor and protector of terrorist organizations. The possibility that these two separate scenarios might overlap, or that norms developed for the former may be adopted (and abused) by a powerful state looking to justify a preemptive attack or even simple imperial designs, is a real problem for advocates of the report of the International Commission on Intervention and State Sovereignty (ICISS), The Responsibility to Protect [1]. However, setting that difficulty aside for the time being and for the purpose of the present analysis, efforts to counter terrorism may take several forms: first, direct actions such as the freezing of assets, or the pursuit and arrest of terrorists by law enforcement agencies; second, related passive or defensive activities to reduce states’ and societies’ vulnerability to terrorist attacks, such as monitoring external borders or improving domestic intelligence gathering; and third, working to reduce or to eliminate the *

Executive Director, Academic Council on the UN System, Wilfrid Laurier University, Waterloo, ON. N2L 3C5, Canada.

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A.D. Edgar / Rebuilding War-Affected Societies

conditions within those turbulent political-territorial spaces and contexts – that is, war affected states and societies - that may be conducive to terrorist activity. The first two sets of activities listed above fall largely within the rubric of ‘homeland defense’. The third concern is commonly referred to by American analysts discussing the war on terror as ‘draining the swamp’, but this term is both demeaning and misleading, and therefore ultimately unhelpful analytically and practically. It suggests that entire societies or communities may be thought of simply as ‘the swamp’ within which terrorists plan their activities. Such a view also reduces concerns about ensuring that possible intervention is undertaken for legitimate reasons, and is conducted carefully and constructively. As the continuing difficulties faced by the American forces in Iraq have demonstrated, failures in either or both of these measures can have the reverse of the intended outcome, damaging the unanimity of the international community in countering the threat from terrorism, or worse still adding to the appeal of terrorist groups in the eyes of many previously uncommitted observers. In this chapter I will examine the new framework developed by the ICISS. This is done in order to highlight the contribution that the norms and practices set out by the Commission in its report might offer to states looking for a constructive approach to making difficult policy decisions about whether, and how, to intervene in war affected societies in which populations are facing humanitarian crises as a result of large-scale systematic violence. I will then consider whether The Responsibility to Protect report could form the basis of a widely accepted set of criteria by which to manage – and to establish justification for – international intervention in situations of violent conflict within states. It is these situations of crisis, arguably, that create the local environment conducive to terrorists and terrorism. Such acceptance, if achieved, would be a valuable policy tool for distinguishing between legitimate intervention and the simple exercise of power that creates resistance and inflames opposition movements that may in turn actually create support for terrorism. However, the chapter will also highlight the many practical challenges that face those who support the so-called ‘R2P’ agenda. In particular, it suggests that even those governments which are the leading advocates of the R2P agenda may lack the political will – and perhaps the public interest – to make, and especially to sustain, the economic, financial and military commitments required from them in order to succeed in the daunting task of rebuilding war affected societies and states. 1. Prevent, react, and rebuild: humanitarian intervention and the ICISS report International intervention in Somalia, Bosnia and Kosovo were justified by those states conducting them as being undertaken on humanitarian grounds. NATO’s intervention in Kosovo in 1999 was especially controversial since it took place before any large-scale or widespread violence had broken out in the troubled province of Serbia, and was based instead on the claim that intervention was required to avert a planned campaign by Serb paramilitary forces, under the direction of the government of President Slobodan Milosevic, to ‘cleanse’ the province of its Muslim Albanian majority. Five years previously, in 1994, the international community (especially the western powers sitting as permanent members on the UN Security Council) had been angrily condemned by advocates of humanitarian intervention for their failure to act with sufficient speed and determination to avert the genocidal campaign of the Hutu majority against the Tutsi minority in Rwanda. It was against this background of conflict, confusion and the competing claims of humanitarian legitimacy or aggression against sovereignty that UN Secretary-General, Kofi Annan, called for the development of a new international agreement on the criteria used to justify and guide any future intervention. The Secretary-General asked the members of the General Assembly to consider how the United Nations – and the member states – should


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respond “to gross and systematic violations of human rights that affect every precept of our common humanity” [2]. In response to the challenge formulated by Secretary-General Annan, the Government of Canada announced in September 2000 that it was supporting the establishment of the International Commission on Intervention and State Sovereignty. The task of the ICISS was to investigate issues surrounding the topic of humanitarian intervention, and to develop a report that might offer concrete suggestions of suitable norms, principles and practices to act as guidelines for the international community. The ICISS was co-chaired by former Algerian diplomat, Deputy Secretary General of the OAU and the Arab League, Mohamed Sahnoun and Gareth Evans, former Foreign Minister of Australia. Other members of the Commission came from Canada, the United States, Russia, South Africa, Germany, the Philippines, India, Guatemala and Switzerland [3]. Meetings and consultations were held around the world over a period of several months in 2000-2001. The Commission presented its final report in December 2001, though this event was understandably overshadowed by the attacks in New York and Washington on September 11 that year. Looking to advance the debate beyond the stale and unimaginative confrontation between staunch defenders of state sovereignty and increasingly vocal advocates of a new ‘liberal’ humanitarian interventionism, the Commission instead adopted the concept of responsibility. The ICISS report argued that states were the primary actors responsible for the protection of their citizens from avoidable (i.e. deliberately caused) serious harm. In keeping with the traditions of state sovereignty, therefore, states held the principle position of authority in managing their domestic and international affairs. Sovereignty, however, included not just rights to be exercised but also obligations to be upheld. The ICISS report thus observed that if a state proved to be either unable or, more especially, unwilling to protect its own citizens, then that responsibility to protect devolved upon the international community and took precedence over the traditional principle of non-intervention [4]. This international responsibility was thus noted to be subsidiary to that of the state, but it existed and was in effect an obligation upon the international community. The notion of responsibility advanced by the Commission consisted of three separate elements: the responsibility to prevent, the responsibility to react, and the responsibility to rebuild. The first of these referred to efforts to address root causes of conflicts and crises that threatened harm to populations. The second involved responding to the needs of populations facing imminent danger, initially through non-coercive means but also, where necessary, with coercive measures, including direct military intervention. The last responsibility espoused by the Commission – the last but not the least – was the responsibility, especially after military intervention, to provide “full assistance with recovery, reconstruction and reconciliation, addressing the causes of the harm the intervention was designed to halt or avert” [5]. Some linkages between the three elements cannot be avoided in any analysis of the topic; after all, what precedes intervention, and how that intervention is justified and conducted, can also affect considerably the problems that must be dealt with in rebuilding that society. That said, however, it is the third responsibility in particular that is the focus of discussion in this chapter on the R2P agenda, war affected societies and efforts to counter terrorism. Before moving from this preliminary discussion of the R2P agenda to its application in the context of countering terrorism, one last matter should be considered, at least briefly, as it is of key interest for differentiating between international action taken on this basis (consistent with R2P), and that which may be described as motivated first and foremost by a state or a government’s narrower self-interested purposes. The distinction between these two types of intervention, as just noted above, also can make an important difference in shaping the political climate and the immediate, on-the-ground, context in which postconflict or post-intervention rebuilding activities must take place. This matter refers to the

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basic principles regarding how the proposed intervention is framed by those states that may be calling for it; that is, how the intervention is justified, authorized and undertaken. The literature on the Just War theory is extensive and I will not try to reproduce its depth and scope here [6]. For now anyway, it is sufficient to note that the Commission was careful to include in the argument for the international responsibility to protect, a set of “precautionary principles”, as well as references to threshold conditions that might trigger possible intervention and the right authority for the approval of such intervention. Together these reflect most, if not all, of the criteria discussed in the Just War theory – just cause, right intent, use of force only as a last resort, proportional use of force, and a reasonable prospect of success. Added to the set of basic operational principles also noted by the Commission, the R2P agenda is framed carefully and deliberately by the principles and doctrines of jus ad bellum and jus in bello [7]. The Commission, with its focus on learning from past cases of successful and, too often, failed international intervention, added to these core just war criteria some operational principles and practices such as ensuring that, in the event of international military intervention, “force protection cannot become the principle objective”, and that there must be “maximum possible co-ordination with humanitarian organizations” [8]. If intervention was to be undertaken and justified, the international community would have to ensure not only that it had just cause and that it was acting in accordance with the laws of war, but that it achieved a positive humanitarian outcome. 2. The responsibility to protect as a counter to terrorism Candidate theories abound for the causes of terrorism – religious or ideological extremism, economic poverty, social despair, lack of education and unmet expectations are possible causes frequently heard. Those who use terrorism as a tactic, however, may be religious zealots or they may be energized by secular political ambitions. Terrorists may be middle class or from wealthy backgrounds, with many social advantages. Terrorists may be poorly educated or well educated. Both governments and individuals use terrorism against other individuals, groups or states. There is no single causal explanation for why individuals or groups (or state governments) choose to employ terrorism as a means of achieving their goals. However, much though we may want to find an easy explanation (and hence, presumably, an easy solution), the actors, causes and objectives of terrorism are not readily reduced to a simple formula. What may be more readily agreed upon, however, is the argument that terrorists and terrorism operate without the least hindrance in territories where law enforcement is weak or non-existent as a result of corruption or violence. States and societies mired in civil war therefore provide opportunities for terrorists; these are spaces in which to base themselves for training and operations elsewhere; areas in which black markets and illicit trades – whether blood diamonds, narcotics, prostitution or other activities – allow them to raise funds; or sometimes, the conflict itself offers terrorists a cause around which to rally new supporters. Resolving these conflicts and rebuilding war affected societies, therefore, reduces the ‘safe’ operating space of terrorists and helps to take away other forms of support. This is where work of the ICISS in developing the R2P agenda may offer some useful and practical policy tools for states and the international community in countering terrorism, even though that is not necessarily the central purpose of any particular intervention. The tasks of post-conflict peace building operations are myriad and all of them are demanding of political commitment, money, and material resources from intervening states. Reform of the civilian security sector – police, the judiciary, and supporting activities – must often be accomplished at the same time as the daunting tasks of disarming, demobilizing and reintegrating ex-combatants into civilian life and the potentially contradictory goal of pursuing war criminals and providing justice for victims of mass crimes. To these al-


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ready steep requirements we must add the restoration, or building from scratch, of a functioning physical, economic and political infrastructure [9]. None of these tasks are accomplished cheaply, easily or in short order. The missions in Bosnia and Kosovo cost roughly US $5 billion per year. Withdrawal of the international military presence may spell a return to the violence. Widespread anti-Serbian attacks in Kosovo in 2004 demonstrated how fragile the peace there remains, several years after the first NATO intervention. More than a year of ‘post-war’ US and coalition occupation in Iraq has cost Washington tens of billions of dollars, caused widespread destruction of infrastructure throughout Iraq and led to many thousands of indirect casualties amongst the long suffering Iraqi population [10]. Despite a date having been set for elections, there is no sign of a sustainable Iraqi state, let alone sustainable peace without the presence of over 100,000 American troops. In both of these otherwise quite different situations, heated controversy over the legality and legitimacy of external intervention has made the actions politically divisive internationally, and within the states that were subjected to intervention gave some unwarranted credibility to the cause of those groups – Milosevic’s Serbian government in Belgrade, Hussein’s Ba’athist Party leadership in Baghdad - whose actions had been the cause of the demand for intervention. An important premise behind the ICISS report is that whatever the supposed restrictions and guarantees provided by the concept of state sovereignty in international politics, external intervention into states’ affairs will continue to take place in the future. Against that fundamentally realistic understanding of the nature of international politics, the first task for anyone concerned with the issue is to arrive at a set of criteria accepted by the large majority of states which must be satisfied before international intervention may be considered both legal and legitimate. In recognition of the high value still placed by governments on the traditional concept of sovereignty, these criteria must place the burden of proof (or of argument) on the state or government proposing the intervention. However, this important initial deference to sovereignty must be balanced by an acceptance of the dual nature of the ‘responsibility to protect’. Sovereignty cannot serve either as a shield behind which a state can perpetrate mass abuses of human rights, or as an excuse-of-convenience for the international community to avoid its obligation to provide security for populations in desperate need of that help. Seen this way, the criteria proposed by the ICISS are much less idealistic – or unrealistic – than one might otherwise have believed without reading the ICISS report, and as many critics have argued. Having broad international support for an intervention also relieves one or two leading states of carrying the financial and military burden by itself/themselves, as is happening in Iraq, while at the same time removes any possible claim of ‘victimization’ or martyrdom on the part of the government or group which committed the harm that triggered the intervention. Especially where violence and intervention have occurred in situations of ethnic or religious differences, broad support for intervention by states of various religious, ethnic or other identities reduces the mass appeal of the government or leadership body to potential new supporters who might see it otherwise as being bullied (usually by the West/North). In this way the R2P agenda can help to differentiate more clearly between intervention which is legal or legitimate and intervention which is not; it leads to greater burden-sharing, and firmer alliances standing behind interventions; and it minimizes the potential catalytic effect of intervention on opposition groups, which can be particularly important when dealing with situations of religious, ethnic or other identity-defined violent conflicts. The R2P agenda, by itself, cannot provide guarantees that intervening states will make, and especially sustain over a 5-10 year time-frame, the political, financial and material commitment needed in specific situations for successful transitional peace building programs. It can, nonetheless, be of value in building a framework that is more conducive, and far less coun-

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terproductive or destructive. By reducing opposition to intervention in war-affected societies, cementing international co-operation and clearly defining the bounds of legitimacy, the R2P agenda provides an excellent framework for countering terrorism directly and indirectly. 3. Conclusion There are many limitations to the amorphous entity that we call the ‘international community’, and just as many weaknesses in the efforts to build a multilateral system of global governance that is guided by commonly accepted norms of behaviour. The most obvious limitation is that states and governments repeatedly demonstrate that narrow self-interests will trump a commitment to other actors based on some sense of moral or ethical responsibility. This especially is the case with the most powerful states that possess the greatest capacity to act for themselves, but self-interested actions are not unique to the great powers. Such narrowly defined interests may play themselves out in high profile and controversial foreign policy choices, but they also can be seen in the very limited resources devoted by wealthier states to foreign aid – hence the disheartening example of wealthy states pleading poverty when failing to meet their development aid funding targets. While recognizing the reality of this political environment of power and self-interest, it also is reasonable to argue that moderate progress has been seen in advancing new international concepts and norms. Although definitional ambiguities remain, the theme of human security, in particular, has been a significant central organizing idea around which policy initiatives such as the anti-personnel landmines ban treaty, the International Criminal Court and the Kimberley Accords (to limit the trade in ‘blood diamonds’) have been undertaken [11]. Resistance exists to all of these, of course, and the Republican Administration in Washington has led the attack against what it presumably sees as a challenge to American sovereignty and American interests. Despite such virulent opposition, however, new treaties have been signed and ratified, and have helped to reshape the international political landscape. After the US-led invasion of Iraq once again demonstrated that great powers can and will, at times, act for questionable narrow interests even against broad international opposition, many smaller states feel that they have reason to worry that the R2P agenda might be abused by powerful states. This leaves the smaller states less willing to support, or even to discuss, The Responsibility to Protect. It also makes these same states less willing to support other US initiatives that involve the potential for intervention in states’ internal affairs. This reluctance may have been partly to blame for the lack of interest in US Secretary of State Colin Powell’s efforts to press for international action against the humanitarian abuses taking place in Darfur, Sudan. Ironically, the perception that Washington acted hastily, aggressively and for publicly stated reasons that seemed doubtful to many during the heated debates in the week preceding the invasion, and which subsequently were proven wrong, might have hampered the US ‘war on terror’ had it lead to continued divisions in the international community. References [1] [2] [3] [4] [5]

The Responsibility to Protect, Report of the International Commission on Intervention and State Sovereignty (Ottawa, 2001). ICISS, op.cit., p.2. ICISS, op.cit., p.77. ICISS, op.cit., p.XI. ICISS, op.cit., p.XI.


[6]

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An excellent and thorough study of the topic is Brian Orend, War and International Justice: A Kantian Perspective (Waterloo 2000). An insightful analysis placing just war doctrine into the context of the debate over international humanitarian intervention is provided in Nicholas J. Wheeler, Saving Strangers: Humanitarian Intervention in International Society (Oxford 2000). Situating the debate also within different nations’ political and legal contexts is Charlotte Ku and Harold K. Jacobson, eds., Democratic Accountability and the Use of Force in International Law (Cambridge 2003). [7] ICISS, op.cit., pp.31-37. [8] ICISS, op.cit., pp.66-67. [9] These issues are dealt with concisely in Tom Keating and W. Andy Knight, Building Sustainable Peace (Tokyo 2004). [10] A Johns Hopkins University study estimated at least 100,000 Iraqis – mostly women and children - had been killed, primarily as a result of airstrikes and other attacks by US-led forces. Reported in ‘Study cites 100,000 Iraqi civilian deaths’, ISN Security Watch, 29 October 2004, available at www.isn.ethz.ch. [11] Lloyd Axworthy, Navigating a New World: Canada’s Global Future (Toronto 2003) offers an insider’s view of the development of human security ideas and their translation into policy practices.

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Post-Conflict Peace-Building as Terrorism Prevention Ivan ŠIMONOVIĆ* Abstract. Post-conflict societies are at a crossroads: their recovery must start fast or they face a serious risk of re-emergence of conflict. Post-conflict peace-building, the setting up of institutions and especially the establishment of the rule of law prevent conflicts from re-emerging and possibly from being transformed into local terrorism; they also prevent states from collapsing and becoming a safe heaven for international terrorist groups. Attention devoted to the fight against terrorism should result in the allocation of more resources and an improved organizational framework for these activities. The needs of post-conflict societies are qualitatively different from those of stable societies, and the Bretton Woods institutions’ criteria and conditions for obtaining resources do not seem suitable. Immediately after the conflict, economic rationality has to be balanced with the social preconditions of a sustainable peace. If peace-building operations continue to expand, the Security Council will have to share the burden with other UN bodies more suited to this particular task – perhaps with an adequately reformed Economic and Social Council (ECOSOC), or the resurrected and radically transformed Trusteeship Council.

Introduction Post-conflict peace-building is very important, not only for the recovery of affected societies, but also to avoid the re-emergence of conflict. In spite of its importance and conflict prevention potential, post-conflict peace-building has not been sufficiently practiced for two main reasons. Firstly, peace-building as conflict prevention is a non-event, and it is therefore difficult to attract attention and resources. Secondly, the organizational framework and mandate for such activities are not clear. Attention devoted to the fight against terrorism and the potential of post-conflict peace-building in this respect might help to overcome the afore-mentioned obstacles. In this article an attempt will be made to indicate the importance of post-conflict peacebuilding in the fight against terrorism. It assists in the prevention of local terrorism (often difficult to distinguish from guerrilla warfare), but also of global terrorism, by preventing failed or very weak states from becoming potential save heavens.1 Attention devoted to the fight against terrorism should result in more resources and clearer organization as well as a mandate for post-conflict peace-building. With respect to the fight against terrorism, some especially important dimensions of post-conflict peace-building are state-building and the establishment of the rule of law. State-building and the rule of law provide for a reliable framework, preventing a reoccurrence of conflict and risks related to its association with local or global terrorism. This framework also helps to deal with past injustices (gravest human rights abuses and war crimes), prevents their reoccurrence and enables societies to turn to the future and social and economic recovery. Of course, there is much more to be said and done on both post-conflict peace-building and the fight against terrorism. Post-conflict peace-building has many more merits then *

Legal Theory, International Relations and Diplomacy, Law School, University of Zagreb, Trg maršala Tita 14, 10 000 Zagreb, Croatia.

I. Šimonović / Post-Conflict Peace-Building as Terrorism Prevention

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merely the prevention of terrorism, and there are many other ways to fight terrorism besides post-conflict peace-building, but this article is particularly focused on the relationship between the two. The reason for such a focus is that the fight against terrorism and postconflict peace-building are performed by different sets of actors who, by not co-operating with each other, are not fulfilling their potential. While the fight against terrorism looks for new ways, post-conflict peace-building requires additional attention, better organization and more resources. By acknowledging their interrelatedness and by co-ordinating their efforts, the effects of both of these activities might be substantially improved. 1. Post-conflict societies: on a road to recovery or another conflict? Societies emerging from conflict, especially protracted conflict, are usually fragile, needy and generally in a mess. Their economies have collapsed, their infrastructure has been damaged, their human resources have been negatively effected (primarily because of the number of dead, disabled, refugees, and poor education during conflict), and there is still strong tension - especially in the case of internal conflict - between supporters of the two sides. Pre-war institutions have weakened or collapsed, and the technical capacity and requisite political consensus for their recovery or for the creation of new institutions may sometimes be lacking. At the same time the population’s expectations are usually high. After years of hardship, the people, including ex-combatants, expect dividends of peace.2 Their mobilization during the war was based on promises of a better future, but the reality does not look that way. If the conflict ended with some sort of compromise between the sides, they might also be feeling that their sacrifices were greater than their gains. The scarcity of necessary resources and a lack of organized measures aimed at recovery are not only having a negative impact on the quality of life but are also jeopardizing security. If there is no progress fast, if stability is not achieved, if the quality of life does not improve and if there is no clear indication of a better future, the danger of the conflict reoccurring in one form or another is high. It has been estimated that in the first year after the conflict there is a 40% likelihood of a reoccurrence of conflict.3 2. Post-conflict societies and terrorism If a conflict reoccurs, it might take a form of local terrorist activity. In fact, especially in internal conflicts, it is often very difficult to make a clear distinction between guerrilla warfare and terrorism. Of course, there is a general difference between the two: while guerrilla warfare is waged primarily against governmental military and security targets and property, terrorism involves deliberate attacks on civilian population and targets. Yet, the same groups can be involved successively (or even simultaneously) in both guerrilla and terrorist activities.4 Furthermore, in addition to armed confrontation, they are often involved in nonviolent activities such as community work, or even hold economic, political and religious functions – especially in failed or weak states, where they fill the gap in the delivery of public goods. In the post-conflict period there is an imminent danger that, if former combatants are not reintegrated into society (and especially if members of the losing side are subjected to revenge or unjustified persecution), they may turn to terrorism. Besides political reasons, in a poor country the return to conflict can also be motivated by economic reasons. During the conflict combatants and their leaders are exposed to high risks but they also enjoy numerous privileges. After a certain period they also adapt to a specific lifestyle and it might be difficult for them to return to normal life. Some former combatants and their leaders might

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therefore be anxiously waiting for an excuse to revert to their previous style of life. If they are too weak for guerrilla warfare, their terrorism may become their mode of operation. Prolonged conflict can also weaken states to such an extent that they can not fulfil their traditional role. It is not easy to establish precisely the criteria for what constitutes a failed state, but is easy to notice that some governments simply cannot provide basic public services: safety and security, control over territory, efficient administration or any of the usual services. States that have failed or been seriously weakened offer networking opportunities and the possibility of the relocation and transhipment of arms and people to external or transnational terrorists.5 There is also a chance of the local recruitment, or the use of valuable locally available commodities (such as gold, diamonds or drugs) for the financing of their activities. Finally, local guerrilla fighting and terrorism can be transformed into international terrorism, or become part of an international terrorist network. In all such cases, the impact of terrorism is not confined to a failed or weakened state, but has wider regional and international implications.6 From the perspective of international law, it is not easy to take action against terrorists in a weakened or failed state, especially if it is not deliberately harbouring or otherwise sponsoring terrorists.7 International terrorists can benefit from the combination of protection from the intervention of a third country, vested in the principles of state sovereignty, as well as from a weak state’s inability to take efficient action on its own against terrorists. To assist weak or failed states to strengthen or rise up is to help prevent potential conflict between the security needs of states that are terrorists’ targets (attacks on terrorists no matter constitute “pre-emptive self-defence”) and the international law.8 3. The most urgent needs of a post-conflict society The prevention of a reoccurrence of conflict, including in the form of terrorism, depends on satisfying the most urgent needs of a post-conflict society. Post-conflict societies usually have many needs and very few resources. The security priorities of a post-conflict society are disarmament, demobilization and the reintegration of former combatants into society, including with regard to employment (DDR). The number of soldiers has to be reduced because it is not sustainable to keep them, but those who are dismissed from service have to be offered an alternative new civilian life which, if not attractive, is at least acceptable. A large reduction in the military without fully disarming soldiers and helping them to find their place in post-conflict society may lead to tensions, insecurity and an uncontrolled use of arms. Disarmament should not be reduced to heavy weapons: small arms are a major source of loss of life in internal conflicts, and they are also suitable for criminal or terrorist activities. A large number of frustrated, armed people on the streets may lead to various problems: be it criminal activity, terrorism or continued armed conflict. In Sierra Leone, for example, when 8,000 ex-combatants had to leave the army because of budget cuts and were not offered alternative employment, they turned to guerrilla warfare, thus helping to reignite hostilities. Of course, “safe” demilitarization, including demobilization and disarmament, costs money. Providing demobilized soldiers with a sense of dignity helps but it is not enough. The most important – and the most difficult – to provide are job opportunities. In the early stages after the conflict the economy has not yet recovered, and it is not possible to employ ex-combatants without external financial support. Besides support for reconstruction and development, the reintegration of ex-combatants requires some additional public spending: at least in the beginning the public sector might be the only realistic opportunity for employment.


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4. A vicious cycle: how to get the necessary resources? It is very difficult to provide a post-conflict society with external resources.9 Bilateral donors tend to wait for the “green light” from the Bretton Woods institutions (especially the IMF). The IMF, on the other hand, imposes conditions that are not adjusted to the specific needs of post-conflict societies. As a prerequisite for financial support, the IMF requests a certain level of stability and applies economic rationality in its decision-making. On the other hand, in a post-conflict society, public spending (including spending on salaries in the public sector) are necessary for economic recovery, but also for the sustainability of peace. Of course a balanced budget must be envisaged in the future, but immediately after the conflict economic rationality has to be balanced with social preconditions of sustainable peace. As Ibrahima Fall, UN Assistant Secretary-General for Political Affairs, clearly pointed out, peace-building imposes a specific reordering of priorities: It is important to recognize that peace-building has a fundamental political character and is therefore distinct from normal development activities in non-crisis situations. This is because, when a society is sliding into conflict or emerging from war, its needs are qualitatively different from those of a stable society. This requires a reordering of normal developmental, humanitarian and other activities, so that they can contribute to the overarching goal of preventing the outbreak or reoccurrence of conflict.10 Providing necessary resources for post-conflict peace-building seems like a vicious cycle. In order to achieve stability, post-conflict societies need external resources. In order to obtain these resources, they first have to get approval from the IMF. Before that, bilateral donors or investors are hesitant to provide resources because there are no assurances of the effectiveness of their spending. IMF, on the other hand, is not willing to give its approval before a certain level of stability is reached and the criteria of economic rationality are fulfilled. Perhaps attention devoted to the fight against terrorism will stimulate out of the box thinking and the innovative approach necessary to resolve this deadlock. It is the same countries sitting on the IMF's executive board that will have to pay the price if the conflict reoccurs (the price of peacekeeping, humanitarian aid, refugees), and which may be exposed to risks related to terrorism to which the conflict and instability may lead. The Latin proverb bis dat qui cito dat11 is fully applicable to the situation of post-conflict peacebuilding. Furthermore, it is quite likely that investment in post-conflict peace-building helps to avoid paying a much greater price later. To paraphrase the proverb: the one who gives fast saves double. Besides the financial issue, post-conflict peace-building also faces institutional and organizational problems. In cases when post-conflict peace-building requires international presence, who should be in charge of it? Taking into account various possibilities for the misuse of this role for national interests, and the sensitivity of issues related to state sovereignty, the obvious candidate is the United Nations. It might not be the most efficient organization, but it is credible regarding its impartiality and respect of the sovereignty of the host country. Within the UN framework, peacekeeping falls within the mandate of the Security Council. However, complex peace-building activities (including the building of institutions and economic recovery such as, for example, in East Timor or Kosovo) fall outside its mandate as envisaged in the Charter and are not compatible with the nature and methods of its

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work.12 If peace-building operations grow in scope, as hopefully they will, the Security Council will have to share the burden with other UN bodies more suited to this particular task – perhaps with the adequately reformed Economic and Social Council (ECOSOC), or the resurrected and radically transformed Trusteeship Council.13 5. State-building and the rule of law Two aspects of peace-building are especially important for the prevention of terrorism: state-building and the establishment of the rule of law. State-building focuses more narrowly and specifically on political governance and institution-building (political authority, state administration and law and order). The development of a democratic, functioning state decreases the chances of both local and international terrorism within a post-conflict society.14 Democracy provides for the protection of fundamental rights and freedoms legitimizes different political options and provides for an institutional framework that regulates peaceful political change. Tolerance and the possibility of peaceful change decrease motivation for local terrorist activity. A functioning state helps to pre-empt terrorist activity, or to suppress it if it occurs. A democratic, functioning state also prevents international terrorist activities in its territory. Post-conflict states, especially after protracted internal conflict, are often weakened and at risk for use by international terrorists. It might be easy for them to buy hospitality, to be ignored, or just pass unnoticed by powerless authorities. In those cases the motivation to act against terrorists on behalf of states who are potential targets is therefore very strong. However, international law and the principle of state sovereignty limit their possibility to do so, especially if weak states are not sponsoring terrorism themselves.15 Security cooperation, as well as helping to strengthen weak states and state-building, are indirect ways of protecting themselves from transnational terrorism.16 State failure was, until the war on terrorism, mainly perceived as a local humanitarian problem: now it represents an international security threat. The impact on the sustainability of peace of the (re-)establishment of the rule of law in post-conflict peace-building is generally underestimated. In post-conflict societies there are many unresolved problems and conflicting interests, hatred, fears and mistrust. The rule of law facilitates the resolution of conflicts in an unbiased, legitimate way (perception of discrimination and unfair treatment are factors contributing to the emergence of terrorism). The re-establishment of the rule of law is not only a matter of institutional build-up: it also presupposes the re-emergence of the very idea of a state ruled by the law.17 For the rule of law to become a reality, the complete spectrum of components must be developed, including the legal code, judiciary and penal system.18 The rule of law provides for security from both criminal activities and terrorism. It facilitates the return of refugees and displaced persons who are otherwise afraid or unable to do so; the lack of security and unresolved property matters can otherwise represent great obstacles. The reintegration of these groups into society reduces frustrations and tensions and prevents them from becoming potential reservoirs of manpower for terrorism. The rule of law also prevents the misuse of power (after internal conflicts there is often a strong tendency of discrimination against members or supporters of the losing side and favouritism of one’s own political allies). Last but not least, the rule of law sets a reliable framework for the revitalization of economic activity (suppressing corruption is one of IMF’s main conditions in granting loans), including foreign direct investments.


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6. Addressing war crimes and human rights abuses A special aspect of the rule of law is dealing with past war crimes and human rights abuses. In this respect, to what extent is the key dilemma the attempt to forget or to establish the truth about past war crimes and human rights abuses, and to what extent is it the pardoning or punishing of the perpetrators.19 While human rights activists advocate the “no peace without justice approach”, diplomats and peace negotiators often favour amnesties as bargaining chips.20 Although every situation has its own specifics, it seems that in general the best conflict prevention and prevention against terrorism is to act quickly and combine amnesties for minor crimes with criminal proceedings for major crimes. At least some criminal proceedings are necessary because there is no sustainable peace without at least some justice. Without it, frustration might lead to revenge, including terrorism. For social stability it is probably best to proclaim amnesty fast and to start immediately with the re-integration and re-habilitation of the majority of former combatants. If the future of ex-combatants is not clear or if they fear revenge, they may go underground and finance themselves by combining criminal and terrorist activities. In order to prevent history from repeating itself, it is important that society accepts a fair and common view of the conflict, war crimes, their victims and their perpetrators. Besides criminal proceedings, truth commissions can be very useful in this respect.21 Their procedure is far less formal and facilitates much broader social participation, which has a healing effect on victims. Truth commissions are in a position to establish patterns of abuses and their root causes, and to issue recommendations regarding institutional reforms that can prevent the reoccurrence of crimes and abuses.22 Within the international peacekeeping framework, war crimes on one hand and terrorist threats on the other traditionally occupy very different positions on the list of security priorities.23 While war crimes are committed and have an impact on conflict areas, conflictgenerated terrorism has a wider international impact. War criminals rarely pose an immediate or large-scale security threat to the international community - terrorism does. In contrast to the local character of war crimes, counter-terrorism can be directly tied to the vital national security interests of the leading states which are also the main donors and decisionmakers in international peacekeeping and peace-building operations. This traditional approach underestimates the interrelatedness of war crimes, sustainable peace and terrorism. War criminals - if not arrested - often have a negative impact on peace-building efforts. A good example of this is the effect of Karađić's and Mladić's staying at large despite the ICTY's indictments and their leading role in the genocide in Bosnia and Herzegovina. While they are at large, international efforts in Bosnia and Herzegovina do not seem fully credible and Serbian extremists still hope that, in the end, Republika Srpska will eventually secede. War criminals are also inclined to finance their hiding through criminal and terrorist activities, thus destabilizing respective countries. Expeditious arrests prevent war criminals from obstructing the peace process or turning to terrorism. One of the practical lessons to be learned from the experience of dealing with war crimes issues within a framework of peacekeeping operations has been the need to create an international special unit team to carry out arrests that is separate from the military involved in regular peacekeeping duties, possibly supplemented by a team to track down indicted war criminals. 7. Sustainability of national institutions and the rule of law For peace to be sustainable, national institutions and the rule of law have to be sustainable as well. In post-conflict societies it is often not possible to (re-)build institutional systems

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or to (re-)establish the rule of law (and especially to prosecute war crimes) without support from outside, but there has to be a balance between foreign knowledge and local traditions, and between the use of foreign expert help and the development of national capacities.24 Institutions that are being (re-)built should follow a democratic model, but in order to be sustainable, they must also rely on local traditions. International experts can help a lot, but they spend resources that could be used to strengthen the local justice system. It is interesting to compare two cases of foreign assistance in dealing with war crimes, those of Rwanda and East Timor.25 Although it is too early to estimate the overall impact of different models of assistance on the rule of law and its sustainability, some of their effects are already quite clear. The feeling of guilt that genocide has not been prevented significantly contributed to the Security Council's decision to establish the ad hoc International Criminal Tribunal for Rwanda. The overall cost of the UN sponsored Rwanda Tribunal until the expiration of its mandate can be estimated at about $2 billion, the expected number of processed persons at about 100. The costs of the process can thus be assessed at about $20 million per person. Were the same amount to be spent per person for all the other 130,000 individuals being detained for crimes relating to the 1994 genocide, $2.6 trillion would be required, corresponding to about 300 years of Rwanda’s total GDP. It would cost every citizen of Rwanda about $370,000, while in Rwanda the GDP per capita is about $1,200. It is not only that Rwanda could not afford such expensive trials but it could not manage any further regular trials required. Trials (shortened and made less expensive by introducing plea bargaining) were preserved only for the gravest crimes, while for others a new mechanism relying on a traditional community-level system of justice called gacaca has been introduced. Gacaca lies somewhere between tribunals and truth commissions: participation is massive and almost a quarter of million people are envisaged as participating in the process as judges. In addition to revealing the truth (as envisaged by the Truth Commission in South Africa), those subjected to the procedure are expected to apologize, express remorse and ask for forgiveness.26 Could not those $2 billion been spent more wisely by contributing to the sustainability of the justice system in Rwanda? The example of East Timor indicates that they could have been. In East Timor, the UN transitional administration established a hybrid tribunal consisting of foreign experts and local lawyers. It was a dispensing of justice and a learning process at the same time: before the hybrid tribunal no East Timorese had any experience as a judge or prosecutor. Presumably the performance of the East Timorese was not ideal from the outset, but it is their improved professional capability which should guarantee the sustainability of the rule of law in East Timor. Particularly promising institutions, aimed at simultaneously lending international assistance to war crimes trials and increasing the capacity of local judges, are hybrid tribunals (active in Kosovo and Sierra Leone, envisaged for Cambodia). They benefit from international expert knowledge and impartiality, while in comparison to entirely international tribunals they have advantages in terms of financial costs, efficiency, legitimacy, psychological impact, and the capacity building necessary for maintaining legal standards and the rule of law. 27 In general, internationally assisted institution-building and establishment of rule of law should rely on local traditions and include local capacity building insofar as possible. It is not only a matter of respect for local values and traditions: even the most perfect institutional arrangements and rule of law mechanisms are of little practical value if they are not sustainable.


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8. Conclusion Attention devoted to the fight against terrorism increases the importance of comprehensive post-conflict peace-building, institution-building and especially the establishment of the rule of law. It should result in the allocation of more resources and an improved organizational framework for these activities. It is a good investment: they are a powerful prevention against the reoccurrence of conflict and its possible transformation into local terrorism. They also prevent states from collapsing and becoming a haven for international terrorist groups. Finally, this assistance is also an early and specific form of developmental assistance. The war against terrorism cannot be won without a global strategy and co-operation. With such a strategy counter-terrorist measures are just a small part of the required effort. It is understandable that the most directly affected countries tend to resort to a short-term reactive approach to terrorism, answering to public opinion pressure to act immediately and decisively.28 However this is not enough. “Addressing root causes of terrorism” might sound annoying to the most affected countries if it is not translated into concrete measures forming a robust, long-term preventive approach to terrorism. Within such an approach, post-conflict peace-building, and especially state-building and the establishment of the rule of law, have an important role. Efforts in this area of the fight against terrorism should be global, and shared by the states most directly affected and by other states. References 1 On concept of failed states, see Gerald B. Helman & Steven R. Ratner, Saving Failed States, Foreign Pol.' y, Dec.1992, and Ralph Wilde, The Skewed Responsibility Narrative of the “Failed States” Concept, 9 ILSA J. Int'l L&Comp. L. 425 (2003). 2 See Charles Cater, The Political Economy of War and Peace, International Peace Academy, (2002), p.8 3 See Paul Collier, Economic Causes of Civil Conflict and Their Implications for Policy, in Turbulent Peace: The Challenges of Managing International Conflict, Chester A. Crocker et al. (eds.), United States Institute of Peace Press, (2001), pp. 143-162. 4 See Ekatarina Stepanova, Anti-terrorism and Peace-building During and After the Conflict, Stockholm International Peace Research Institute, (2003), p.6. 5 On failed states as international security threats, see The National Security Strategy of the United States of America, 1, 10-11 (2002). For an analysis of the Strategy from the rule of (especially international) law perspective, see Winston P. Nagan and Craig Hammer, The new Bush National Security Doctrine and the Rule of Law, 22 Berkeley J. In'l L., (2004), pp. 375-438. 6 On importance of denying terrorists the sanctuary in failed states within antiterrorist strategy, see Sebastian Mallaby, The Reluctant Imperialist: Terrorism, failed States and the Case for the American Empire, Foreign Affairs, Mar-Apr. (2002). 7 Afghanistan intervention could, for example, be legally justified by implication of the Taliban regime in terrorism and protection of terrorist operatives, so the “terrorist state” has been invaded by victim, or potential victim states of terrorism. This argumentation has been used by Jack Straw, British Secretary of State for Foreign and Commonwealth affairs, when he addressed General Assembly of the UN on November 11, 2001 to make the case for war against Afghanistan within the framework of Article 51 of the UN Charter (the right to self defense). 8 Although some scholars rightly point out that the UN is not fully successful as a legal regime for regulating the use of force in international system, see Michael Glennon, The Fog of Law: Self-Defense, Inherence and Incoherence in article 51 of the United Nations Charter, 25 Harv. J. L. &Pub Pol.'y 539, (2002), pp. 540556, the obligation of obeying standards set up in the UN Charter cannot be simply ignored – not even when matters of national security arise. Although right to self defense under article 51 of the UN Charter can be interpreted with some flexibility, respect for state sovereignty and general prohibition of the use of force cannot be disregarded. 9 On difficulties in mobilizing financial support for post-conflict peace building and on problems regarding its most suitable organizational framework see Ivan Šimonović, Post-conflict Peace building: The New Trends, Int'l J. Legal Info Vol. 31:2, (2003) pp. 251-263.

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10 The Development of the United Nations Concepts and Strategies for Conflict-prevention and Peacebuilding, presentation to the Open-ended working group on the causes of conflict and the promotion of durable peace and sustainable development in Africa, 29 May to June 1 2001, para 32. 11 The one who gives fast, gives double. 12 During open debates on peace building convened by the UN Security Council in 1998 and 2001, the problem of the mandate for and the coordination of the complex peace building have been raised. 13 On the potentials of ECOSOC in post-conflict peace building, see Ivan Šimonović and Irena Zubčević (eds.), Croatia Presidency of ECOSOC 2002, (2003) pp. 20-21. ECOSOC seems to be a suitable body for coordination of various actors that can contribute to peace building such as the UN funds, agencies and programs, however, to assume this role ECOSOC would have to substantially improve its operational capabilities. An alternative might be to resurrect practically non-existing Trusteeship Council and transform it into a body with specific task of complex peace building, helping recovery of the failed states and coming into being of new ones. 14 Sharp division between local (or conflict related) terrorism and international (super, mega or strategic) terrorism seems somewhat artificial taking into account ties between the two (see Stepanova, op.cit. pp. 7-12). In this article distinction is used for analytical purposes only. 15 On problems regarding legality of using preemptive military force against terrorists in failed or week states, see Ben L. Dunlap, State Failure and the Use of Force in the Age of Global Terror, 27 B.C. Int'l &Comp. L. Rew, (2004), pp. 453-475. 16 See Robert I. Rotberg, Failed States in a World of Terror, Foreign Affairs, July-Aug. (2002), pp. 453475. 17 See Simon Chesterman, Justice under International Administration: Kosovo, East Timor and Afghanistan, International Peace Academy, September (2002). 18 See United States Institute for Peace, Special Report 97, Lawless Rule vs. Rule of Law in the Balkans, December (2002), pp. 12-13. 19 See Ivan Šimonović, Attitudes and Types of Reaction Toward Past War Crimes and Human Rights Abuses, 29 Yale J. Int'l L, (2004), 343-361. For comprehensive review of experiences with transitional justice, see Rudi G. Teitel, Transitional Justice, New York, Oxford University Press, (2000). 20 See Paul. R. Williams and Michael .P. Scharf, Peace with Justice? War crimes and accountability in former Yugoslavia, Lanham MD, Rowman and Littlefield, (2002), xiii. 21 On potentials of truth commissions, see Priscilla B. Hayner, Unspeakable Truths: Confronting State Terror and Atrocity, New York, Routlege, (2001). 22 See P. van Zyl and M. Freeman, The Legacy of Abuse – Conference Report, in A.H. Henkin (ed.), The Legacy of Abuse – Confronting the Past, Facing the Future, New York, The Aspen Institute and New York University School of Law, (2002), p.6. 23 See Stepanova, op. cit., pp. 20-21. 24 As the Final Report of the Executive Committee on Peace and Security Task for Development of Comprehensive Rule of Law Strategies for Peace Operations has bluntly put it: “…the goal of all UN personal working in the rule of law area should be to reinforce the capacities of, and not replace, local actors whenever possible”, ECPC Task Force Report 15 August (2002), p.4. 25 See Ivan Šimonović, Journal of International Criminal Justice 2 (2004), p.708. 26 On role of gacaca see Norwegian Helsinki Committee, Prosecuting Genocide in Rwanda: The Gacaca System and the International Criminal Tribunal for Rwanda, (2002), pp. 18-23, 32-33 http://www.nhc.no/ land/rwanda/Rwanda.pdf. 27 Transitional justice is unavoidably somewhat messy. There is little good in having highest standard proceedings couple of years, followed by vacuum. It seems more useful to accept compromises in sense of adjusting procedure to the case load and available standards from the outset, but to ensure through local capacity building that at least minimal acceptable standards will maintain after foreign experts are gone. 28 On short-term reactive approach toward terrorism and long-term preventive strategy, see Stepanova op. cit. pp. 44-45.


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Barriers to Social Reconstruction of Communities in the Aftermath of Organized Violence Dean AJDUKOVIĆ1 Abstract. War or massive terrorist attacks have distinct characteristics that disrupt social patterns, challenge the existing social institutions, may lead to shifts in social structures, question the social norms and value systems, and destabilize communities in other ways. Likewise, the social milieu in which the lives of survivors of armed conflicts are embedded has important consequences for individual and community recovery. A better understanding of interpersonal and intra- and inter-group processes can help us design intervention that may facilitate recovery from massive suffering during war. Our studies clearly identified interpersonal processes that lead to loss of mutual trust, disruption of norms and decreasing quality and efficiency in close social transactions. The task of effective community-based intervention is to help facilitate psychosocial reconstruction of the communities, decrease social tensions among groups that have been involved in a conflict, provide treatment for the most traumatized individuals and work towards re-connecting community members. The key process that may be conducive to such recovery at a community level is social reconstruction. We see individual recovery from violence and community social reconstruction as two parallel, interdependent and non-linear processes. The model of community social reconstruction is presented below.

There is evidence that major social events, such as natural disasters affecting thousands of people, disrupt normal patterns of social functioning causing social chaos and community destabilization, and have consequences also on the mental health of people [1]. The term loss of communality was coined [2] to describe the circumstances in which many socio-cultural support systems necessary for recovery after massive social and individual trauma are shattered. Research has shown [3] that a decline in social support and social embeddedness can explain much of the mental health consequences of natural disasters. Major man-made social events, such as war or massive terrorist attacks, have distinct characteristics in comparison to other similar turmoil. Such events not only disrupt social patterns but challenge the existing social institutions, may lead to shifts in social structures, question social norms and value systems, and destabilize communities in other ways. Research on the characteristics of social situations that determine the intensity and contents of symptoms of coping and the emergence of post-traumatic stress disorder has focused primarily on the extent to which affected individuals get support from others. However, much more work is needed on interpersonal and intra- and inter-group processes to help us understand factors that may facilitate or impede recovery from massive suffering after organized violence. Traditionally, research on trauma psychology primarily looked at the dose and structure of exposure to traumatic events, pre-morbid and current personality factors, and available social support as potential risk or resilience factors for post-traumatic stress reactions. 1

Department of Psychology, University of Zagreb, Croatia.

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D. Ajduković / Barriers to Social Reconstruction of Communities

Social context of organized violence We believe that both the social context in which organized violence happened and the social milieu required for recovery, are important factors for individual and community recovery. During the war massive pain and trauma is not inflicted in social isolation. On the contrary, it is intentional, meant to hurt and destroy people; it targets select groups and particular individuals in order to send a symbolic threatening message to targeted communities. In fact, such violence has a clear instrumental purpose – it uses horror to achieve political purposes, including ethnic cleansing. At the same time, everyday people have a profound need to understand why they have suffered. While the search for meaning in what has happened and why is extremely difficult, at the same time it opens space for distorted perceptions and biased interpretations. The well-documented processes of in-group and outgroup bias, stereotypes turning into prejudice and discrimination, distrust and eventually intra-group violence simply flourish during times of organized violence. People who have been exposed to such events also feel that they have suffered gross injustice and that their basic human rights have been violated. Therefore, they hope to see judicial trials against the individuals they see as perpetrators of human rights both within their own community and outside it, which probably indicates the depth of psychological wounds. This is probably true in all contemporary wars, as in the recent wars fought in Croatia, Bosnia and Herzegovina and Kosovo. In addition to trauma and suffered feelings of injustice, the affected people have experienced a whole range of losses, such as family, home, relatives, friends, jobs, professional identity, and a sense of belonging. The communities as the people knew before the war are fragmented; social networks and other support mechanisms to which they normally used to turn are shattered. The increase in family violence, child and spouse abuse and violence in public is a pattern that is evident in all countries affected by upheaval and social transition. Once these people were able to return to their devastated original communities, they also had to meet former adversaries, often the people whom they considered at least as accomplices to the suffering they had experienced. At the same time the expectations of those outside such communities are that the people should start functioning normally and see the hard work of rebuilding their homes and lives primarily as a constructive challenge. They are expected to put the past suffering aside, together with their disturbing trauma symptoms. Yet, the fact is that some of these communities clearly remain divided between ethnic groups, making life in them even more difficult and making the outsiders wonder what kind of people live there who cannot see that it is in their best interests to “forget what has happened” and work together towards a better future! In fact, people from outside such communities expect the insiders to behave as if they have not been deeply hurt, often feel betrayed by the very people they have trusted, and sometimes doubt that the trusting relationship can be rebuilt. “Turn towards the future” is what they are told by the rest of the world, by health workers, and above all by the representatives of the international community. Ironically, the only social agent that seemingly understands their needs to approach the future with one eye on the recent past are nationalistic political parties – not because they especially care for the people living in these communities, but rather because it is easier for them to manipulate people who feel frustrated, unsafe and whose psychological needs are not recognized by the outside world. In understanding the present social context in which destabilized communities need to heal, we believe it is important also to understand the processes that shaped the context leading to organized violence. The process of gradual violation of social norms as violence escalates was named social breakdown [4]. Since social norms are reflected in society’s values, the people know what is right, good and desirable. Social norms represent behavioural cornerstones in normal


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times. However, at times of upheaval social norms are violated seemingly without consequences. People start doubting the values that they previously upheld since the existing value structure may appear inappropriate. Seeing that other people do not abide by the norms and that more and more individuals achieve goals in previously unacceptable ways, people begin to wonder if they should also change and adjust. When social institutions no longer provide safety, people start looking for other means to protect them. When instability develops in a multi-ethnic country, ethnic minorities start suspecting that the ethnic majority will use its advantage and turn the state institutions into instruments of ethnic dominance, so they start to feel insecure. It leads to the formation of what Ignatieff calls “a fiction of nationalism” [5]. Individuals have the feeling that they cannot trust their friends and neighbours from a different ethnic group as they used to. An illustration is the case of a woman from our study who had been very close friends with a married couple from another ethnic group for thirty years. As she puts it, “we were closer than sisters and brothers”. However, in the spring of 1991, she became alarmed by the fact that her friends preferred to watch exclusively the television program aimed at their own ethnic group. She first started to doubt the sincerity of their friendship, and next started to interpret some of her friends’ statements as hostile toward her and her ethnic group. During the process of social breakdown people start feeling deeply confused, asking themselves: Who am I? Who are my neighbours? What is the future like for my family and me? How could my close friends have changed so much? The next stage is decreased trust and doubt about the intentions of other people who are gradually shifted into the “they” category, as distinctively different from the “us” category. The “us” category becomes redefined in a previously unimaginable way: relatives and ethnic or religious groups become increasingly important as they offer more and more psychological safety in a changing environment. In multi-ethnic societies, differences between in-groups (“we”) and out-groups (“they”) which previously have had no significance for social relations can, under circumstances ridden by fear and uncertainty, easily assume paramount importance – “communities of fear”, as coined by Ignatieff, [5] emerge. Under such circumstances, social institutions become inefficient and the out-group members cannot be trusted anymore. Minor differences among ethnic members become exaggerated, new social biases are shaped by rumours, the media and politicians, increasing prejudice and leading to discrimination. It is the confused people, in their search for minor differences that would make them distinct from members of out-groups, who enjoy discovering each of them. If social and political leaders encourage such behaviour, emphasize the need for homogenization within one’s own group and highlight differences in relation to the out-groups, the community can quickly become socially divided. Groups with conflicting interests start perceiving each other as enemies. Eventually, communities fall apart. Our study of feelings of trust and betrayal by close neighbours and life-long friends in the city of Vukovar [6] has clearly identified such a process. The study examined the circumstances, experiences and consequences of separation in 1991 between close friends of Croatian and Serbian ethnic background in the city of Vukovar in which some of the worst atrocities were committed at that time. We were interested in how Serbs and Croats view their pre-war relationships with the other side and how they interpret the actions of their friends during the war and in the post-war period. Increasing feelings of helplessness, fear and lack of full comprehension of what was going on were the major factors that were identified as setting the stage for the break-up of close relations. The crucial moment that made many of our Croat respondents feel betrayed and break off friendships was their belief that their life-long Serbian friends had information about what was going to happen to the Croats, but failed to share it. Even after 12 years they were convinced that their friends withheld information that could mean the difference between life and death for them and their family, and could not forgive their Serbian friends for leaving the city without telling

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them this. Respondents from the Serbian group insisted that they never had such information and often described their own fear of the Croatian military and the dramatic circumstances under which they urgently left the city out of fear for their lives, preventing them from announcing this to their best friends. It was impressive how narratives of what has happened in such close relations can differ enormously. The same was true when the two groups described what they did or did not do after the city fell to the Serbian paramilitaries and the army, when hundreds of Croats were executed and the rest forced to flee. Social context of community reconstruction At some point after the open violence is over, people tend to return to the original communities from which they had had to flee. In so doing, they confront destroyed homes and meet former adversaries face to face. For the traumatized and hurt people who have suffered multiple losses this is a very difficult experience. In addition, many people are missing family members and face unemployment, very harsh living conditions, insufficient social services and schooling, mine fields that obstruct farming and loss of personal and professional identity… Feelings of lack of control over one’s life makes people feel disempowered in a community that has changed dramatically since the war. Our research conducted over several years has clearly shown this [6, 7]. For instance, the residents of Vukovar agree that, before 1991, relations among ethnic groups were very close and that the ethnicity of neighbours, colleagues at work or friends was of no relevance. Nowadays, this social norm is drastically different and ethnic make-up became the key social marker in interpersonal and inter-group relations. The current practice of Serbian and Croatian children attending separate schools has never been seen before. The high level of division in the community is evident also in sports, arts, culture and even in coffee shops. Members of each ethnic group do not look approvingly upon those who maintain even superficial contact with persons belonging to the other group. Though some other countries have been living with similar divisions rooted in social, economic, racial or religious differences for decades, this was unknown until 14 years ago in the communities we were looking at. In such environments, the reconstruction of destabilized communities means working towards decreased social tension among groups, providing treatment for the most affected individuals and working towards re-connecting community members. We want to argue that to do this, an integrated, holistic approach that considers various levels of social ecology is necessary. Therefore, we see individual recovery and community social reconstruction as two parallel, interdependent and non-linear processes. As individuals need to deal with disturbing post-traumatic symptoms and integrate their experiences and losses, communities need to find ways to deal with a painful collective history and overcome conflicting narratives about who-did-what-to-whom among various groups. As individuals heal and communities reconstruct, they need to look for ways of integrating painful experiences in such a way that it contributes to the feeling of safety and self-worth of individuals, stability and a sense of community. A very important aspect of social context that can help the community in the healing process is the public perception of justice and accountability for crimes committed during times of violence. The expectation is that the individuals who are guilty of committing violent or criminal acts or atrocities should be brought to justice. There are different ways in which societies and the international community deal with this. One way is to establish truth commissions that collect testimony from victims of organized violence and call on the perpetrators to admit their wrongdoings. Another means are courts of law. For example, the International Criminal Tribunal for the former Yugoslavia (ICTY) was established to investigate and prosecute war criminals in that region of Europe. The assumption is that if the


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truth about who did what in the past becomes known, people who were terrorized can begin to heal. At the social and community level this implies that to fully account for crimes would facilitate reconciliation between former adversaries. In addition to uncovering the truth, trials should attribute individual responsibility and guilt to perpetrators of atrocities and crimes against humanity. This would help to separate them from the guilt attributed to a whole ethnic group. All this should contribute to the psychological, moral and spiritual process of reconciliation and social reconstruction. If the perpetrators were exempt from punishment, the people would go on living with strong feelings of indignation, disappointment and bitterness because their suffering was not fully recognized, so that such impunity would seriously hinder the recovery and reconstruction processes. Let us look at how appropriate are such assumptions. An extensive survey of a representative sample of 1,642 residents from three ethnic groups living in three ethnically divided cities in Croatia (Vukovar) and Bosnia and Herzegovina (Mostar and Prijedor), studied, among other issues, attitudes towards the ICTY and war crimes[8]. How international criminal trials are viewed depended very much on the group, study site and time of survey. Bosniaks, who were seen by themselves and the international community as the principal victims of the wars, were positive while the other groups held negative attitudes towards the ICTY. At the time of the first survey, other groups felt that members of their ethnic group were unfairly singled out for show trials. Two years after, during a further survey, these attitudes had changed – in the meantime, the Tribunal had indicted several highranking Bosnian military officers which probable led to more negative views of the ICTY among the Bosniaks. Given the overall negative perception of the Tribunal, its role in contributing to reconciliation is evidently problematic. At the same time, the participants strongly felt that punishing war criminals from all the sides to the conflict was important for themselves personally and for the reconciliation. These apparently contradictory findings were easily explained by respondents, who reported that they did not see the Tribunal as contributing to reconciliation in their community. They felt that the Hague trials were far removed from their reality. They were primarily concerned that, as they saw it, the perpetrators who terrorized them continued to live freely in their community. For them the Tribunal was not a relevant mechanism for the delivery of justice, which was their primary interest. Exposure to war trauma alone was not predictive of reconciliation, but its association with negative experiences with the other ethnic group, feeling discriminated and unsafe, predicted resistance to reconciliation process. Community social reconstruction The key process that may be conducive to recovery after individual and collective suffering, loss and destabilization is community social reconstruction. It does not imply a renewal of former social relations as people knew it. Too much pain will have been inflicted on community members to aspire to rebuilding the same community as before. It is only possible to search for new forms of relationships and develop social structures and institutions that would facilitate normal social functioning in a different context. This is why social reconstruction can be defined as a process which brings the community’s damaged social functioning to a normal level of interpersonal and inter-group relations and renews the social fabric of the affected community [9]. At a certain point social reconstruction can only reach a level of social functioning acceptable to the majority of its members. The window of opportunity for its advancement opens when people recognize that a common need cannot be fulfilled through separate efforts of any particular community group, but that they need to work in agreement. Until the majority of residents become convinced that renewed cooperation is necessary, social transactions remain at the same level, however low. Indeed, it is not easy for people to be-

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come functional neighbours and colleagues after they have contributed, whether actively or passively, to the disintegration of the community. One should not ignore the fact that the consequences of mass suffering and repression involve very strong emotions. For example, a study conducted in 1999 on mental health, social functioning and attitudes of the Kosovar Albanians, soon after NATO’s bombing of Serbia, found that 90% of the women and 89% of the men expressed severe hatred toward the Serbs; 43% of the women and 51% of the men expressed a strong wish and readiness to retaliate [10]. In our view, there are three interdependent, simultaneous and non-linear processes of community social reconstruction that can lead to outcomes at different levels (Figure 1). The starting assumption is that the existential needs of a community are met to a certain degree and that safety is at an acceptable level. One of the processes in the model refers to recovery from losses and exposure to violence. It includes raising awareness about mental health consequences from exposure to mass violence and social transition in the community and providing treatment to those who need it. It is especially important to determine the destiny of missing community members and to make it possible to provide dignified burial rituals for all members. A central and extremely sensitive issue is a recognition of suffering and of the status of victims of collective violence. Recognition of suffering of out-group members, and the possibility that someone from our group may have caused it, requires compassion and trust that is difficult to reach between former enemies who are overwhelmed by their own pain, victimization and suffering. Therefore, within the social reconstruction, mechanisms for the acknowledgement of suffering and loss that have affected community members should be put in place, regardless of who belongs to the group. In our studies in Vukovar [6] we clearly observed that the majority of Croats believe that the Serbs who were able to remain living in Vukovar after the Croats were forced to flee were either passive or active accomplices to Croats’ suffering. Consequently, they expect from the Serbs a gesture of remorse and active help in revealing the truth about their missing family members. On the other hand, the majority of the Serbs that we interviewed emphasize that they have not personally harmed anyone, could not possibly have known the fate of missing Croatian neighbours, and consequently saw no reason to show remorse or apologize for what had happened. The second parallel process includes actions that contribute to building new social norms and tolerance. The role of the authorities is important, because the messages they send have a strong impact on people's behaviour. Messages such as whether or not it is desirable to build contacts with members of other ethnic groups make people conform to what they think is the current behavioural norm or what is “politically correct”. Half a century ago, Gordon Allport [11] concluded that in order to improve relations between two conflicting groups, they need to maintain contacts and those contacts need to be on an equal footing, frequent and supported by people of authority. And last but not least, both sides should share a common goal and, while working towards it, they should keep their independence. In this context, conflict management and associated skills need to be introduced into a community that has a poor history of managing differences in a constructive way [12]. The third parallel process is the empowerment of the different players in community change. This process should help individuals to feel like dignified human beings and help them to increase the ability to manage their own lives. At the same time, different systems of social support need to be strengthened, including that of care-providers. Increasing feelings of self-esteem and self-efficiency is an important mechanism that improves the quality of life of community members, contributes to increasing the feeling of safety and community belonging, and can assist in the ability to recognize common, overarching goals.


Figure 1. Model for facilitation of social reconstruction

Stability and progress of a community

Reconciliation in a community

Cooperation and establishing trust in a community

Tolerance and ability to live together

Recovery from losses, violence and trauma • awareness about role of loss and trauma in the life of a community • treatment of traumatized • individuals • help in complicated grief • documenting losses and narratives about what happened in the community • recognition of suffering of all community victims • determining the destiny of missing community members • securing social support in the family and community • providing professional • mental health services

Establishing new social norms and tolerance • promotion of norms of tolerance and non-discrimination • events where people can meet members of other groups in a stimulating environment • introduction of constructive conflict resolution skills • social institutions that do not discriminate • legal processes against war criminals • responsible media • political parties that work in the best interests of public welfare • awareness of and respect for human rights

Community empowerment • •

• • •

increasing self-esteem of individuals and groups encouraging formal and non-formal leaders to establish contacts between parties to the conflict strengthening helpers and support systems awareness of common and overarching goals implementation of social actions for common good

Fulfilled existential needs and government that encourages social reconstruction

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Over the course of time, through both a spontaneous and a conscious effort, one can expect progress towards the normalization of the way in which a community functions. Social reconstruction, in its early phase, leads to increased tolerance and the ability to avoid conflict among community members. In the next phase, cooperation and the building of mutual trust among groups and individuals may be expected. Social actions that involve members of different groups are a good vehicle towards this phase. It can be expected that trust will grow as a consequence of increased and more frequent contact in a more favourable environment. For social reconstruction it is important to reach an interpretation of past conflict that is acceptable to all parties. Where there are significantly different narratives of events it is difficult to build relations because the narratives reflect very different sets of values. Experiences have shown that intervention programs during which people from conflicting community groups come together to discuss experiences of collective violence, learn about the consequences of traumatization and mechanisms for recovery and share personal experiences, lead to positive change [13]. Such changes are essential for social reconstruction, because they can diminish traumatic symptoms, increase cooperation among groups and readiness to accept sympathy if the other group expressed it. Our experience showed that good results in building connections between members of ethnic groups to a conflict can be achieved through a program which includes understanding the psychological processes related to loss and trauma, recognizing alternatives for constructive conflict resolution, sharing experience of loss and planning joint social action [14]. In the next phase of social reconstruction, issues of reconciliation will surface. The concept of reconciliation has different meanings for different people. Nadler [15] posits that the key concept is socio-emotional reconciliation that is oriented towards overcoming conflictinduced feelings. Among the predominant feelings is the wish for retaliation. But when victims retaliate against the perpetrators, they become perpetrators themselves and thus the vicious circle of violence is perpetuated. Instead, a community can cope with its past if the perpetrators (or their symbolic representatives) admit their wrongdoings and ask for forgiveness, and the victims (or their representatives) accept it. Nadler emphasizes that trust is a precondition for both offering and accepting apologies. Namely, the perpetrator must have the confidence that the victim will respond with forgiveness and readiness to open a new chapter in their relations. The victim must have the confidence that the perpetrator who asks for forgiveness is sincere, and not manipulative. Such basic trust is more likely when the conflict ends with a shared agreement as to who is the victim and who is the perpetrator. In such situations, continues Nadler, there is no need to prove who the victim is, and the perpetrator can expect that his confession of guilt will be returned with forgiveness. However, when there are different interpretations of the roles of victim and perpetrator, reconciliation is in trouble. And this is exactly the case in the ethnically divided communities we have studied – different narratives reflect different truths, which are very much influenced by ethnicity. When the conditions are not right for socio-emotional reconciliation, the process of instrumental reconciliation could be a good second choice. Instrumental reconciliation is the outcome of a series of steps in which one party needs and helps the other party and has to co-operate with the former enemy in order to accomplish a shared goal. In our opinion, the process of social reconstruction described by the model presented accounts for both of these forms of reconciliation. Mechanisms for healing from violence and loss, building social norms and tolerance and strengthening community resources can lead to more demanding levels of social reconstruction, including reconciliation.


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References [1] [2] [3]

[4] [5] [6]

[7]

[8]

[9]

[10]

[11] [12]

[13]

[14]

[15]

J.P. Wilson, Trauma, transformation and healing, Brunner/Mazel (New York 1989). K.T. Erikson, ‘Disaster at Buffalo Creek. Loss of Communality at Buffalo Creek’, 133 American Journal of Psychiatry (1976) pp. 302-305; F.H. Norris, C.B. Byrne, E. Diaz, E. and K. Kaniasty, Psychosocial Resources in the Aftermath of Natural and Human-Caused Disasters: A Review of the Empirical Literature, with Implications for Intervention, National Center for PTSD (White River Junction VT 2002); B. Useem, ‘Breakdown Theories of Collective Action’. 24 Annual Review of Sociology (1998) pp. 215-238; M. Ignatieff, The Warrior’s Honor. Ethnic War and the Modern Concscience, Henry Holt (New York 1998); D. Ajduković and D. Čorkalo, ‘Trust and Betrayal in War’, in E. Stover and H. Weinstein, eds., My Neighbor, My Enemy: Justice and Community in the Aftermath of Mass Atrocity. Cambridge University Press (Cambridge MA 2004) pp. 287-302; D. Čorkalo, D. Ajduković, H. Weinstein, E. Stover, D. Djipa and M. Biro, ‘Neighbors Again? Intercommunity Relations After Ethnic Cleansing’, in E. Stover and H. Weinstein, eds., My Neighbor, My Enemy: Justice and Community in the Aftermath of Mass Atrocity. Cambridge University Press (Cambridge MA 2004) pp. 143-161; M. Biro, D. Ajduković, D. Čorkalo, D. Djipa, P. Milin and H. Weinstein, ‘Attitudes Toward Justice and Social Reconstruction in Bosnia and Herzegovina and Croatia’, in E. Stover and H. Weinstein, eds., My Neighbor, My Enemy: Justice and Community in the Aftermath of Mass Atrocity. Cambridge University Press (Cambridge MA 2004) pp. 183-205; D. Ajduković, Socijalna rekonstrukcija zajednice’ /Community Social Reconstruction’/, in D. Ajduković, ed., Socijalna rekonstrukcija zajednice: psihološki procesi, rješavanje sukoba i socijalna akcija /Community Social Reconstruction: Psychological Processes, Conflict Management and Social Action/, Society for Psychological Assistance (Zagreb 2003) pp. 11-39; B. Lopes Cardoso, R. Kaiser, C.A.Gotway, and F. Agani, ‘Mental Health, Social Functioning, and Feelings of Hatred and Revenge Among Kosovar Albanians One Year After the War in Kosovo,16 Journal of Traumatic Stress (2003) pp. 351-360; G. Allport, The Nature of Prejudice, Addison-Wesley (Reading, MA 1954); M. Ajduković and B. Sladović Franz, ‘Razumijevanje sukoba’ /‘Understanding conflicts’/ in D. Ajduković, ed., Socijalna rekonstrukcija zajednice: psihološki procesi, rješavanje sukoba i socijalna akcija /Community Social Reconstruction: Psychological Processes, Conflict Management and Social Action/, Society for Psychological Assistance (Zagreb 2003) pp. 195-210; E. Staub, ‘From Healing Past Wounds to the Development of Inclusive Caring: Contents and Processes of Peace Education’, in: G. Salomon and B. Nevo, eds., Peace Education: The Concept, Principles, and Practices Around the World, Lawrence Erlbaum Associates (New Jersey 2002) pp. 73-86; D. Ajduković, M. Ajduković and D. Čorkalo, Community Social Reconstruction, Conflict Management and Community Mental Health – pilot project report, Society for Psychological Assistance (Zagreb 2002); A. Nadler, ‘Postresolution Processes: Instrumental and Socioemotional Routes to Reconciliation’, in: G. Salomon and B. Nevo, eds., Peace Education: The Concept, Principles, and Practices Around the World, Lawrence Erlbaum Associates (New Jersey 2002) pp.127-141.

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The Role of Religion and Spirituality in PostConflict Reconstruction Phyllis Fierro ROBINSON * Abstract: The majority of the world's religions teach the values of peace, justice, and forgiveness which leaders and followers through their spirituality make manifest in the world. Yet, war and conflict are often caused by issues related to religious identity. This equivocation is played out on the global stage at all levels of post-conflict societies, as those involved in international intervention decide whether to include indigenous religious and spiritual leaders in the peace-building process. Using case studies in a variety of postconflict settings, the reasons for including spiritual and religious leadership in an integrative approach to both the healing process after trauma and in postconflict reconstruction are considered.

All the sacred traditions make a strong point that we are flawed human beings … And if we get right down to the source, it is the basic problem of our egocentricity which keeps us from doing what desperately needs to be done. Huston Smith [1] A Moment to Reflect Any conversation about spirituality and religion these days is fraught with controversy. For this reason I begin with a definition, a distinction and a request. Spirituality and religion, for the purposes of this chapter, are defined and distinguished from each other: Spirituality is our search for purpose and meaning involving both transcendence (the experience of existence beyond the physical/psychological) and immanence (the discovery of the transcendent in the physical/ psychological). Religion can be considered as the organized attempt to facilitate and interpret that search. [2] The majority of the world's religions teach the values of peace, justice, and forgiveness which leaders and followers through their spirituality make manifest in the world. And now, would you be willing to take a moment to reflect on the following with me? What is your inner climate as you hold the seemingly contradictory ways that spirituality and religion show up in our own and in other people's lives these days? I feel constriction in the area of my solar plexus. I attribute it to having conflicting thoughts and feelings. Here in the U.S. not only do we have prayer in the White House (a *

Ed.D, Community for Integrative Learning and Action, University of Massachusetts.

P.F. Robinson / The Role of Religion and Spirituality in Post-Conflict Reconstruction

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discomforting idea to some), but a president who has just won four more years based on the strength of the religious right. During the 2004 U.S. election, people's polarization over moral values ran rampant as right-wing religious constituents were pitted against progressive humanists. I am one of those progressive humanists, and yet through spiritual practice have awakened to the possibility of healing not only from this election, but also from even the most horrendous of conflicts. I am fearful, however, of religious teachings and religious leaders who breed in their followers a social and psychological attachment to one right and true way. I realize that it is common for an individual or group to look to their religion as a source of cultural and psychological identity. However, all too often anger and violence are advocated against those who would threaten that identity. A United States Institute of Peace publication states: "The dynamics of recent intermediate and war-level conflicts suggest they are motivated by psycho-social elements - long-standing animosities rooted in perceived threats to identity and survival. Contested issues of substance (such as territory or governance) are intimately rooted in the cultural and psychological elements driving and sustaining conflict" [3]. Ever since 9/11, our slogans of "united we stand" have played on our sentimentalities, as well as our identity as Americans (including my own), and for some it has become the basis of a fear-based decision to put a war-mongering administration back in the White House. The behaviour of the Bush administration scares me and yet I do not want to see them as my enemy. The only way I have learned to avoid the "us versus them" mentality is by practicing what my spiritual teachers have taught me about approaching fear, that is by going into it [4]. When fear itself becomes an object of awareness, I can discover its root cause, which in this case is attachment to view, and that allows for a widening circle of awareness of self as an object, conditioned socially and constructed thought by thought, a self to protect or defend. My reasoning mind is strengthened by this awareness, allowing wisdom to arise and helping me to distinguish between the need to protect and defend due to an attachment to a dogmatic ideology and a situation in which defence and protection is appropriate for physical survival. This spaciousness and its natural inclusiveness lets me know when to let go in the interest of a higher principle, that of healing a world shattered by conflict and revenge. I could not live this process without daily meditation. I might also add that I have found it nearly impossible to carry out this process of letting go in the midst of controversy or in a heated conversation. I can only imagine what it must be like when one's dearly held beliefs and values or one's family and home are being threatened or have been destroyed. Humbled by this probability, I still pause and envision a peaceful world in which each one of us, regardless of our faith system, are offered the gift of discovering our own inherent wisdom. Whose healing is this? Now, let's move on to the lives of those we write about or do research on or with. How do we feel about how spirit manifests itself in the lives of victims, the lives of those we serve? Reflect on this for a moment. Notice confusion? I do. To what degree do the victims themselves include spirituality as a factor in both their individual and their community's healing? When things fall apart, what happens to an identity spurned on by attachment and hatred, or to an identity dependent on a benevolent god petitioned to help hold it all together? Supported by spiritual leaders, is this crisis an opportunity for transformation into a more loving, forgiving existence in the world, or is it a chance for proselytizers to entertain the possibility of conversion, or both?

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This essay explores existing research, mostly in the form of case studies on the role religion and spirituality play in healing following war. The data is meant for an audience of mostly academic researchers and so there needs to be a clear acknowledgement that the process of healing in both refugee and post-conflict settings must ultimately be taken up by the people most affected. The results of a global opinion survey called "The People on War Report" carried out in 1999 by the International Committee of the Red Cross (ICRC) and marking the 50th anniversary of the Geneva Conventions, contained views on war from over 20,000 individuals with first-hand experience – civilians and combatants – and revealed the following: Though the people in the war zones across the globe have suffered greatly in today’s wars, they strongly believe that war should have limits. The principle has not been buried under the weight of the atrocities or the growing normalcy of civilian deaths. Nor is it seen as a remote theory that is only of interest at international conclaves. In places around the world where war has taken such an ugly toll, people re-assert the principle, indeed, speak of it in normative terms – as a question of "morality"… This suggests that any effort to reaffirm the legitimacy of international humanitarian law must begin with the people who have lived through these wars and armed conflicts [5]. Where do we go from here? These points of reflection are important insofar as they help me and you to see how formidably complex all of this is. So, thank you for taking the time. Unless they are languishing in refugee camps for years, the time for reflection is a luxury that may be unaffordable to the group who are the object of this volume. Yet, to truly heal from deep wounds takes time and reflection. What to do? My own spiritual leanings are towards Zen Buddhism. It was my Zen teachers who taught me about the principle of walking the "razor's edge". Rather than jumping to conclusions on one side or the other, our wise teachers suggest taking the courageous path, walking with paradox and uncertainty. In groundlessness, as we walk the razor's edge, we are asked to keep an open heart and an open mind. I have made the mistake in the past of using theories and research literature to try to tie everything up in a neat little package. As much as I want to be the "one who knows" in order to be loved, in order to feel powerful and in control, I am making a promise not to fall prey to these habitual patterns here. Introduction Fifteen years ago, as I sat in a sweltering bamboo hut in the refugee and displaced persons camp called Site Two on the Thai-Cambodian border watching a Cambodian-American human rights worker as he trained the attending Buddhist monks, nuns and lay leaders in the principles of the Universal Doctrine of Human Rights, I pondered how foreign these concepts of individual rights must be to a people who consider self to be an illusion. Except in the overall context of freedom of religion as part of the panoply of international human rights, bi- and multi-lateral and non-governmental international development and aid agencies have historically been reluctant to consider indigenous spirituality and religion as having a role in the reconstruction process. There are a plethora of reasons, not least that individual policymakers may be ambivalent about their own spiritual lives, may lack spiri-


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tual literacy or may consider religion best kept out of politics altogether.1 A case in point is Cambodia, where $1.8 billion was spent on the work of the United Nations Transitional Authority in Cambodia (UNTAC) between 1992-93. Using a top-down technology transfer approach which marginalized local knowledge and skills, few resources were put into sustained research to elicit Cambodian approaches to conflict resolution and peace-building [6]. Slowly things seem to be changing as a cautious consideration of spirituality's role in peace-building is beginning to emerge. I attribute this to the rise of secular spirituality emanating from Europe and the U.S. and the fact that some policymakers are exploring their own spirituality and thus seem more open to the possibilities presented here. I recently found, within the pages of an inspiring book by Scott Appleby called The Reluctance of the Sacred, reason to believe that there is some truth in my speculation. I also have personal evidence, having recently been invited to a NATO-sponsored conference to make a presentation on the role of spirituality in post-conflict stabilization, this book being the outcome of that event. Dr. Appleby is far more eloquent than I as he speaks of the need to recognize the … non-violent religious militants who serve in increasing numbers as peacemakers in conflict zones around the world. That story is less familiar than the exploits of holy warriors armed to the teeth in Lebanon, Israel, Algeria, Egypt, India, Iraq and elsewhere. It tells of believers inspired by “sacred rage” against racial, ethnic, and religious discrimination; unjust economic policies; unnecessary shortages of food, clean water, and basic education for the poor; corruption and hypocrisy in government; state or corporate policies that cause environmental pollution and deforestation; the presence of millions of land mines in the soil of developing nations; and the systematic or collateral violations of human rights, whether by state security forces or by religious or secular combatants. Rather than demonize their opponents, however, these militant believers hope to be reconciled to them and seek to prevent the familiar slide from conflict into violence. Thus they focus rage at execrable acts and policies, not at “peoples” as a class or tribe or community. They plumb their respective religious traditions for spiritual and theological insights and practices useful in preventing deadly conflict or limiting its spread. In greater numbers since the end of the Cold War, these religious peacemakers have been shaping indigenous and culturally appropriate processes of conflict management and transformation by adopting and adapting concepts and vocabularies from universal rights discourse and from the NGOs with whom they increasingly collaborate [7]. The exploration in this chapter has gestated through a decade and half of watching the escalation of war and conflict in areas around the world and wondering if my experience working to strengthen the role of the Cambodian Buddhist leadership in the ThaiCambodian border camps during the period of preparation for repatriation (1989-93) might prove useful in other settings where healing and peace-building are needed or underway. I am humbled by the enormity of both the healing process and the peace-building task. I want to honour the existing work already done and also propose some as yet unexplored areas for future research. This essay will highlight several case studies from post-conflict sites on the ThaiCambodian border and in Angola, Sierra Leone, South Africa and Cambodia that demon1

I am aware that religious and spiritual leaders and local customs can just as easily contribute to harmful cycles of violence and encourage acts of revenge and hatred. There is evidence that when religion has been part of the source of the conflict, adaptation of mutual integrative and adaptive principles have been rejected by all participants in peace-building on the grounds that moral, ethical, and spiritual religious dimensions would often prevent individuals from adopting integration or adaptation responses [8]

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strate the integrative role spirituality and religion can play in the healing process following trauma. In addition, the case studies highlight the role of spirituality and religious and spiritual leaders as important resources in peace-building during the refugee camp period and in post-conflict reconstruction. I will make a case for the inclusion of religious leaders and spiritual principles in local mid-level and grassroots leadership peace-building training as a part of an integrative approach to reconstruction efforts. The need for an integrative approach to reconstruction and peace-building Our understanding of peace-building and post-conflict reconstruction changed dramatically after 11 September 2001. After the end of the Cold War, it had become commonplace to assert that peace and development were intimately linked and that the United Nations (UN) and other international actors needed to address the twin imperatives of security and development through integrated policies and programs. Shedding its early definition of “postconflict reconstruction,” the term “peace-building” broadened its scope in the 1990s to encompass the overlapping agendas for peace and development in support of conflict prevention, conflict management and post-conflict reconstruction. The use of development assistance to address violent conflicts, more effective peace operations for peace-building, and post-conflict reconstruction became officially declared goals and objectives at an international level. The window of opportunity that opened in the 1990s enabling the UN and other international actors to begin dealing with security and development through integrated peace-building approaches changed when the United States and Great Britain declared war on Iraq, as international attention again turned to issues of hard security. A 2003 International Peace Academy Studies in Security and Development report called Peacebuilding as the Link between Security and Development: Is the Window of Opportunity Closing? found that: The UN’s relevance and credibility are in grave jeopardy, yet there are no other international institutions that can play a global role in pushing forth the peacebuilding agenda … The case has to be made continuously that development and security need to be mutually reinforcing – especially when many of the threats that confront the international community emanate largely from failures of development [9]. At its core, peace-building seeks to prevent and resolve violent conflicts and consolidate peace once violence has been reduced and post-conflict reconstruction, with a view to avoiding a relapse into violent conflict. Human rights organizations, development NGOs like OXFAM and CARE, regional economic organizations such as SADC and ECOWAS, and even the international financial institutions, including the World Bank, have begun to identify ways in which they could better implement their current mandates or expand them in order to respond to the multiple peace-building requirements of conflict-torn, conflict-prone or post-conflict countries. Notwithstanding internal debate, there has been a significant shift in thinking on the part of many humanitarian aid agencies to identify a peace-building role for humanitarian actors in complex political emergencies. The University of Victoria's Centre for Studies in Religion and Society, and the Centre for Global Studies in their newly released book "Religion and Peacebuilding",2 assert that: "To be effective, peacebuilding and reconstruction initiatives require careful and participa2

The two Centres book called Religion and Peacebuilding examines the spiritual and ethical resources for peace-building within the world's major religions, including Christianity, Buddhism, Hinduism, Islam, Judaism, Confucianism, and Aboriginal traditions. Several case studies are included in the chapters on Cambodia, Bosnia, South Africa, and Ireland.


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tory planning at various levels of society and coordination among efforts and sustained commitments by local and donor partners" [10]. Even researchers in the international community insist that: Peacebuilding is ultimately a political exercise and one of the main challenges that all external actors face is how to influence that political process in a constructive way. Peacebuilding requires a fundamental rethinking of the terms of engagement between the “internationals” and national or sub-national actors, including governments, communities, NGOs, and other social or political groups in conflict zones. [11]3 The above quote seems to confirm what most of us who watch CNN have observed, that conflict resolution in war-torn countries seems to focus mostly on politics at a government or public level. However, the quote alludes to the fact that the resolution of contemporary conflicts requires holistic or integrative reconstruction processes, conducted simultaneously at a mid-range level with leaders who are highly respected and may have formal positions in sectors such as education, business, agriculture or health and with leaders at the grassroots level whose lives are most directly and significantly affected by the conflict [12]. Religion and spirituality as part of the integrative approach Approaches to reconciliation can be complex and controversial. International approaches often neglect the spiritual make-up and needs of local populations. Foreign approaches can be most helpful by strengthening indigenous processes of reconciliation and forgiveness and seeing how they strengthen rather than weaken an integrative process. When spiritual leaders and indigenous spiritual principles of healing and forgiveness have been invited into the peace-building and reconciliation process, a more sustainable peace becomes possible [13] [14] [15] [16] [17] [18]. Spiritual and religious leaders and their organizations are found at all levels of war-torn societies. Their involvement in the spiritual lives of the traumatized has proven effective in helping with the process of coping with trauma in refugee camps and other post-conflict settings [19] [20] [21] [22]. The healing process following trauma is also inextricably linked to the reconciliation process. A peace-building visionary, Jean Paul Lederach, explains: Contemporary conflict resolution demands innovation, the development of ideas and practices that go beyond the negotiation of substantive interests and issues. This innovation, I believe, pushes us to probe into the realm of the subjective --- generationally accumulated perceptions and deep-rooted hatred and fear. In the peacebuilding process people need to find ways to address the past without getting locked into a vicious cycle of hatred. People need the opportunity and space to express with one another the trauma of loss and their memory of injustices experienced. To endure this process requires that there also be an envisioning of a future that enhances interdependence. Opportunity must therefore be given for people to look forward and envisage a shared future. [23] Lederach suggests that reconciliation engages the sides of the conflict with each other as "humans-in-relationship". He also alludes to developments in the new sciences, in which

3 Dr. Necla Tschirgi is Vice President of IPA and Director of the Security-Development Nexus Program. Previously, she was the Team Leader of the Peacebuilding and Reconstruction Programme Initiative at the International Development Research Centre (IDRC) of Canada, where she was actively involved in the design and management of research projects on peace-building in the Middle East, Central America, and Southern Africa.

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both quantum and chaos theory strongly indicate the need to look at whole systems and the relationship of the parts within that system [24]. Human wholeness includes our personal relationship with the physical, psychological and spiritual aspects of our being. When things fall apart, all aspects of this system can break down. As we begin to heal, our interpersonal relationships are key in helping us decipher what has happened. Our helpers come in many guises and meaning-making can come from family, friends, clergy, and even from perpetrators. Meaning making can also come from belief in a power beyond the physical. If our aim is to restore peace, why would we want to leave any part of the human out of the process? The variety of ways in which religion and spirituality contribute to peace-building and reconstruction: examples and case studies

∞ Grassroots capacity building After the war ended in Angola in 1994, recognizing the emotional burdens placed on children who had been socialized into a system of violence at the family, community and societal level, the Angolan government invited the Christian Children's Fund, a nondenominational NGO headquartered in the U.S., to provide psycho-social assistance to the children in Luanda. Luanda had absorbed massive waves of displaced people. By putting emphasis on building local capacity, cultural relevance and sustainable approaches, the project focused on training local leaders to recognize the multi-faceted needs of the population and the importance of integrating psycho-social assistance into wider systems of service. The goal of the intervention was to increase the capacity of adults who work with children to recognize psychological trauma and to assist war-affected children. Ninety-four per cent of the village’s children had been exposed to attacks. In reaching out to the larger community, the outsiders began to build relationships with traditional healers and learned about centuries old practices that constituted key community resources. During the training, the content of the curriculum took into account the fact that trainees came from different communities and that each region or ethnic group described variations in local beliefs and rituals. These beliefs and rituals were regarded as forming part of a new body of knowledge and were integrated into the training curriculum. Trainees were encouraged to take activities out into the community and to develop collaborative relationships with local leaders. In one case, unaccompanied children in an orphanage reported an inability to sleep since a spirit haunted the premises. A trainer sought the assistance of a local healer who conducted a traditional ritual for correcting spiritual contamination. The healer restored the children's sense of well-being. "This experience and others like it strengthened the respect and valorisation of traditional healing that became a hallmark of the project" [25] In rural areas of Sierra Leone, as in much of sub-Saharan Africa, spirituality is at the centre of people's lives [26]. The Christian Children's Fund describes a program for the reintegration of former youth soldiers in Sierra Leone that interconnects economic, psychosocial, and spiritual elements. In addition to the dominant Islamic faith, most people believe that the events in the visible world are caused by good and bad spirits. Respecting traditions of animism involving ancestor worship, they practice rituals to restore harmony between the living community and the community of ancestors. For returning soldiers, the conduct of particular rituals is a crucial part of community reconciliation. Local healers were invited to perform purification rituals. For example, a young woman who had been abducted and raped is regarded as spiritually contaminated, and local beliefs hold that if she returns home, she will bring spiritual pollution into the community. Spiritual pollution is believed to cause misfortune, bad harvests, health problems, and a host of other issues. A local


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healer was invited to rid the girl of contamination and to enable her to return to her community [27].

∞ Training of mid-level leaders Religious leaders from every religion and culture who have worked successfully for peace have worked first of all for justice. One thinks immediately of renowned leaders like Mahatma Gandhi, Martin Luther King Jr., and Nelson Mandela. But there are thousands of unsung peacemakers for every such legendary figure. Peace is a universal hope but begins as a local reality. And no actors are more local—and trustworthy— than the leaders of worship at mosques, synagogues, churches, or temples. [28] There are leaders in societies with protracted conflict whose positions are not necessarily connected or controlled by the authorities or structures of the formal government or opposition movements. These mid-range leaders are often prominent within their institutions. They can hold positions of leadership in health, agriculture, business or education. Religious or spiritual leaders are also found at this level where a priest or head monk has gained prominence in a given region. The key is that they enjoy the respect of the people in a particular region but are also known and have a network outside that region. Poets or writers too would fall into this category. Reconciliation policy-makers, theorists and practitioners are particularly interested in peace-building training at this level because their trainees may have connections both with top-level leaders and at the grassroots level. They also know the context of the people at the grassroots level but are not encumbered by the survival issues plaguing those people. The local leaders must take responsibility for educating and forming their constituents in the spiritual and religious ethics of peace and to name the peace-building task as a sine qua non, a “fundamental” of religious identity. In the final analysis, the popularization of a spiritual and religious basis for peace and a second-order religious-cultural discourse capable of transcending divisive ethnic and religious particularities must be the task of the religious leaders of the communities in conflict. Yet spiritual and religious notions of peace and discourses of religious tolerance stand at various stages of development in different religious communities and traditions. It is therefore significant that religious individuals, communities, and organizations are contributing not only to the transformation of conflict itself but also to the way in which politicians, human rights activists, international lawyers, social psychologists, political philosophers, and policymakers conceptualize conflict and its peaceful resolution. Working whenever possible at a physical remove from the war zones, scholars, human rights advocates and religious leaders are conducting theological, ethical, and legal research into religious traditions and their inherent resources for the peacemaking process. There are many examples to be found in literature (see especially [13] [14] & [15]). I was personally involved in the work of the Cambodian Buddhist head monk, Maha Ghosananda. As founder and spiritual leader of the Dhammayietra movement, aimed at teaching and exemplifying active non-violence as a way to peace and reconciliation, Maha Ghosandanda has been nominated four times for the Nobel Peace Prize. He worked at both the government level as a presence during the 1992 Paris Peace Accords (The Mission for Peace) and also with several international non-governmental organizations, including the Coalition for Peace and Reconciliation (CPR), at the grassroots level in planning a peace walk through Cambodia. The annual peace walks beginning in 1992 went through conflicted zones. Planning and preparation for the peace walks were necessary and included training in the theory and practical disciplines of non-violence and conflict resolution. Preparation for the 1996 walk included twelve training workshops in eight provinces for

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about 600 people. This has led to the training of monks and nuns in community conflict resolution. The CPR still works in the prevention of violence in Cambodia to this day.

∞ Education and training of spiritual leaders in refugee camps: a case study In camps for the displaced there may be leaders who fit the description of mid-level leaders but who are disempowered by their refugee status. They may be well known enough to take their leadership training into their lives and locality after repatriation or resettlement and to contribute to the healing process from trauma, a key and often forgotten aspect of the reconstruction and reconciliation process taking place in refugee camps. It was with this in mind that my colleagues and I approached our intervention on behalf of the Cambodian Buddhist Sangha in Sites 2, B and 8 … In 1989, I accompanied a team of concerned volunteers to the Thai-Cambodian border. We were shocked by not just the conditions in the camps, but by the numbers - 279,000 displaced Cambodians, 80% women and children, had been living in the three camps of Sites Two, B and 8 for over 10 years. An escape from the hell of Pol Pot from 1975-79 and then the Vietnamese invasion of Cambodia in 1979, these camps represented a city in exile for people suffering from over two and half decades of displacement, civil war and attempted genocide of Cambodians by Cambodians. Pol Pot's Khmer Rouge cadres removed children from their families and trained them to be informants. The wealthy city-dwellers were forced from their homes and made to live in the countryside engaged in hard labour. With little to eat and in perpetual fear of execution, the educated hid their identity by acting dumb. One doctor told us the story of his wife's sickness and rather then reveal that he was a doctor he had to watch her die. According to Cambodian Buddhist scholar, Yang Sam, 90% of Cambodians living in Cambodia prior to 1975 were Buddhist [29]. The Buddhist temples were at the centre of every Cambodian village, hamlet, provincial capital and city. In the words of one of the head monks we interviewed in Site Two, "Buddhism and the Khmer are like the spirit and life, they are inseparable" [30]. The Mao-backed and Tito-inspired Pol Pot regime, critical of religion, had targeted the older, learned monk leaders and tortured and executed them. Fewer than 5000 of Cambodia's 65,000 monks survived the 1970s. Most endured hard labour, starvation or torture. An estimated 25,000 monks were executed. In addition, between 1975-1989 1.5 million Cambodians died of starvation, execution, disease or in the war and bombings by the U.S. and Vietnam [31]. Representing the Khmer Studies Institute (KSI) and the American Institute of Buddhist Studies (AIBS), it was our intention to document through video-taped interviews and observation the condition of the Buddhist leadership and their educational needs and to find out more about how the people living in the camps saw the role of Buddhism in their coping and healing process. As outsiders, we felt that aiding the Buddhist leadership would go a long way towards helping the people cope as well as towards preserving their culture after such massive and multiple trauma. With the temple or wat being so central to daily life in each village, there was a need for a well-educated monk leader, especially during the reconstruction process when mistrust of secular leaders was seen to be a huge hindrance in rebuilding infrastructure at the village level. Our goal was to take the results of our month-long assessment and raise the funds to bring educational assistance to the Sangha, the community of monks and nuns ministering to the ethical, psychological and spiritual needs of their people. Our assessment revealed that in the camps there were either very old or very young monks (the younger monks were


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primarily avoiding being drafted into the resistance forces fighting the Vietnamese invaders along the border). Many of the older monks were suffering from what we could only guess was PTSD. Knowledge of and the ability to transmit the teachings, memorization of the chants in the Pali language (the language in which the Buddha delivered his sermons), as well as meditation instruction were essential skills that only learned, older monks or lay leaders called 'Achaa' were trusted to impart. We were asked for Buddhist teachers, books in the Pali language and skilled meditation instructors. During our needs assessment we did discover a few inspired monk leaders. One in particular had founded a Buddhist Research Center whose primary aim was the reproduction of books for the lay population and for teaching the novice monks. We also found lay leaders teaching meditation to the nuns. Another monk leader reinforced the role which the temple played in cultural preservation by finding people in the camps who could teach the arts of dance, music, shadow puppetry, temple design and painting to the younger generation. The efforts of our documentation were effective in attracting small funds for the reproduction of books and video and audio tapes for teaching both the monks and the nuns. We began a search to locate Cambodian Buddhist leaders in exile. We found Maha Ghosananda (see above), living in Rhode Island, Hok Savann, a master teacher of the Pali language living in Montreal, and a meditation master living in a trailer at the Cambodian Peace Pagoda in Leverett, Massachusetts. We produced a series of teaching video tapes of Maha Ghosonanda and Hok Savann, and reproduced the audio tapes of the meditation instructor and brought them back to the camps. They were given to the five temples in Site Two and played on monitors and tape decks donated by the Fredrich Naeman Foundation. Support for the Sangha over the next few years also came from the United Nations Border Relief Operations (UNBRO) and other NGOs working in the camps, and most importantly from exiled Cambodian leaders in the United States, Canada, France and Australia. The entire experience was a great teacher for our well-meaning group of volunteers. In the face of untold trauma and misfortune, there were some Cambodians in the camps who had found a wellspring deep in their beings to motivate the need to keep their culture and their belief system alive as a symbol of hope in the midst of despair. Two years later, in 1992, I returned to the camps with a small grant to conduct another needs assessment, this time for the nuns in the five temples of Site Two. From our first trip I had learned that the older Khmer women who shave their heads and enter the monastery were actually a key resource for the women in the camps suffering from depression and suicidal tendencies. These women would go to the nuns for advice and solace from within the Buddhist teachings on suffering. It was our intention to help strengthen this resource by bringing the nuns from each of the temples together to share their knowledge of the Buddhist teachings on healing and social care. We also invited several younger lay women currently undergoing training in mental health counselling by staff from Harvard Public Health and the Indo-Chinese Psychiatric Clinic in Brighton, Massachusetts, to participate. In the Autumn of 1988, the World Federation of Mental Health and Harvard Public Health conducted a large-scale epidemiological field study to assess the seriousness and prevalence of the mental health problems of the camp population in Site Two. "It was their aim to formalize recommendations aimed at solving the major mental health problems unique to the Site Two context." [32] The results reinforced the need for the camp administration to modify certain risk factors, but repatriation happened before analysis of this data could be undertaken and shared with the camp authorities and policy-makers. The preliminary report was made available and the results guided our own assessment with a view to intervention. In April and May of 1992, with the help of several of the monk leaders mentioned earlier, I joined a Cambodian-American colleague who had a Masters Degree in Social Work coupled with extensive case work experience from within her Cambodian community in Con-

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necticut. She conducted a month-long workshop in social care with 15 nuns and 6 lay women in Site Two. It was our intention to help strengthen the traditional healing methods used by the people in this culture. The nuns who were students of meditation were very clear that the women who came to them were not able to meditate and were too agitated by their state of mind (the nuns did feel that their own practice of meditation was essential to their ability to minister to the women). Instead, the nuns gave teachings from the Buddha that would comfort the depressed and suicidal women and help them see things from a broader perspective particularly the principle of human suffering. The nuns seemed to also want the women not to be victims and to examine their own khamma (karma) as a cause of their mental state. A monk (the one mentioned above who created the Buddhist Research Center) introduced the nuns to a holistic approach to healing. He helped them to see that each human being is a product of environmental forces and conditioning that make up their sense of wholeness. He wanted the women to know that when they intervene on behalf of the women who come to them for help it was important to take into account all the forces that might be influencing their lives. He did not have training in PTSD, nor did he even have a background in psychology. Instead, he relied on the Buddhist principle of dependent origination, the Abhidhamma (part of the Buddhist Canon on psychology), and his own experience to know what intervention would be the most healing for his people. This was an important lesson for the international camp administration in respecting traditional healing methods. In 2002, the analysis of the data collected previously by the World Federation of Mental Health and Harvard Public Health in Site Two was released in an article in the Journal of Nervous and Mental Disease [33]. Their results suggest: the extraordinary capacity of refugees to protect themselves against mental illness despite horrific life experiences. The recommendations emerge for refugee policy-makers to create programs that support work, indigenous religious practices, and culture-based altruistic behaviour among refugees [34]. The Harvard Program in Refugee Trauma (HPRT) at Harvard Medical School has spent the past 20 years investigating the diagnosis and treatment of post-traumatic stress disorder and depression in refugee populations around the world. Their research has demonstrated the critical importance of actively involving survivors in their own recovery. They have observed that the tremendous resiliency of survivors must be harnessed to produce therapeutic outcomes. Maximum potential for healing has been observed to come from three areas: "Spirituality, altruistic behaviour and work" [35]. These recommendations were not developed in a vacuum. In 1993, Harvard attended and contributed to the Utrecht Guidelines for the Evaluation and Care of Victims of Trauma. Twenty-five European mental health experts, including several from the former Yugoslavia, members of the European Community Task Force in Zagreb and the Warburton Committee, participated in the consultation [36]. In 1997, Harvard's Program in Refugee Trauma and Waseda University gathered in Tokyo to discuss issues of economic and social recovery of communities extensively damaged by human and natural disaster. Equal time was given to Bosnia and Herzegovina, Croatia, Cambodia and Kobe Japan. The Tokyo Guidelines for Trauma and reconstruction, among others things, emphasize the importance of altruism and self-help, the importance of work, the importance of cultural efficacy and the need to include refugees in their own healing [37]. It is important to make a connection here between training leaders to do the work of peace and training leaders to do the work of healing from trauma and stabilizing themselves


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within their religious and spiritual practices. They are inextricably entwined. In order to practice reconciliation, it is obvious that people need to understand the past and to achieve some kind of healing and reconciliation with a broad basis, as well as relief from physical, psychological, emotional and spiritual trauma.

∞ The role of faith-based international NGOs Faith-based NGOs can work collaboratively with local religious groups to promote reconciliation, respecting local faith traditions and empowering local groups. By scrupulously avoiding any hint of religious superiority, faith-based NGOs can help repair broken relationships using culturally appropriate processes. Local norms, cultures, and religions need to be seen not as problems but as possible solutions to conflicts and as a means toward reconciliation [38]. The United States Institute of Peace hosted a day-long workshop on 20 June 2001 to enable faith-based NGOs to share their experiences in international peace-building. The holding of this workshop reflected both the increasing involvement of international faith-based NGOs in attempting to promote peace in the countries where they operate, as well as the desire of many other faith-based NGOs to engage in peace-building projects. The participants in the workshop concluded that "there is much more openness now than in the past on the part of governments, United Nations organizations and other international organizations to initiatives taken by faith-based organizations. "But this openness should not be taken for license to operate in isolation; faith-based groups need to forge partnerships with secular NGOs, the diplomatic community, international organizations, and even international military structures."[39] Almost all faith-based NGOs serve people without regard to their religious affiliations and most faith-based NGOs also recruit staff from a variety of religious backgrounds. Training Plowshares Institute has been conducting faith-based training in several countries for nearly 30 years. The purpose of their peace-building training is to equip participants with skills of conflict transformation from a spiritual and moral perspective. The Plowshares approach elicits often forgotten traditional community consensusbuilding processes. It also builds skills in listening, problem analysis, and problem solving, making use of local cultural resources and focusing on local problems in case study format. In multi-faith contexts the trainers use sacred texts; Muslim, Jewish, and Christian participants work collaboratively on the Koran, the Hebrew scripture, and the New Testament. In these situations, the spiritual dimension is central to the training process. The overarching purpose is to promote empowerment and recognition of the worth of those considered to be the enemy, as well as to equip the participants with the ability to solve their own problems. Non-violent methodologies The Fellowship of Reconciliation, founded in 1914, had its original basis for its advocacy of non-violence in the Christian faith, but later became an interfaith organization with branches in 40 countries. As explained by Richard Deats, FOR realized that Christians have no monopoly on peace-building or non-violence; effective non-violent peacemakers can be found within Christianity, Hinduism, Buddhism, Islam, Judaism, and other faiths. FOR gained much of its theological and methodological inspiration from Gandhi and later from Martin Luther King. It views religion as having potentially transformative power within

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society. The FOR philosophy is based on an alternative view of power and an alternative view on how to change history. The local capacities for the Non-Violence (LCN) Program of the American Friends Service Committee supports peace-building and violence-reduction in Cambodia. One of the goals of the LCN project is to facilitate grassroots peace by helping villagers develop their own responses to rebuilding social structures, relationships and trust [41]. Interfaith dialogue and reconciliation The World Conference on Religion and Peace is a multi-religious organization that seeks to promote dialogue and joint action across lines of religious division. WCRP promotes dialogue based upon mutual respect for the primary language of each member religious community, while also seeking to discern the deeply held cares and concerns that the communities commonly embrace. Such major concerns as abuse of children, human rights violations, unequal economic development, and armed conflict are shared by the member religious communities. After identifying these shared concerns, WCRP then uses these as terms of reference for organizing collaborative action. Collaborative work for justice and peace is a fundamental commitment of virtually all religious communities. Moreover, religious communities generally have well-articulated and differentiated structures that provide a basis for collaboration. Whenever possible, WCRP honours the structures that are already in place, rather than devising new structures. Yet WCRP also recognizes that many religious communities have social assets and traditions for addressing conflict transformation that are frequently underutilized. Religious assets such as schools, publishing houses and convening capacity can be mobilized to effectively address situations of armed conflict. WCRP tries to find new ways to enable its member communities to express their own religious traditions and to capitalize on their own peacemaking genius. WCRP has facilitated the work of the Inter-Religious Council of Sierra Leone both by assisting with the mediation that helped end the civil war in Sierra Leone and by helping implement the resulting peace agreement through such acts as obtaining the release of significant numbers of child soldiers. The Inter-Religious Council of Sierra Leone is now repositioning itself to work regionally, reaching across political boundaries to religious counterparts in Liberia and Guinea. This regional work in West Africa demonstrates the impressive capacity of interfaith groups to work internationally [42]. The Center for Strategic and International Studies has conducted more than 35 conflict resolution seminars for religious groups in various parts of the former Yugoslavia. CSIS started their work by utilizing the standard problem-solving approach to conflict resolution, but found that they needed to give greater attention to building relationships, particularly across lines of religious division. CSIS enables participants to work through their suffering, largely through storytelling and then by asking how the person's religious faith has helped him or her cope with this suffering. This is done in small groups to enable the ‘other’ to be humanized. The participants then share their fears and needs with each other by trying to put themselves in the shoes of those on the other side. Next there is confession of personal sin and acknowledgment of wrongdoing on the part of one's group. This is done by preparing a list of wrongs that one's own group has committed and sharing this list with those in the opposing group. The participants then face the challenge of forgiving those on the other side and making decisions to move beyond hatred and revenge. Finally, the participants are asked to work together for justice by addressing high-priority needs. This entails identifying concrete projects to be undertaken collaboratively, that is on an inter-ethnic or interreligious basis. The purpose of this process is to achieve reconciliation and restore proper relationships. Beyond this effort to advance interpersonal and inter-group reconciliation,


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CSIS is also promoting local institutional development by helping to create new NGOs in Bosnia, Croatia, and Serbia dedicated to expanding this work of inter-religious reconciliation. According to CSIS, the critical elements in the reconciliation process include empathic identification with all sufferers and the opportunity to express acceptance of one's own suffering and that of others. Individuals need a chance to tell their stories and to know that their pasts have been acknowledged. Empathetic listening is essential. Injustices cannot however be overlooked or belittled in the process. Central to the reconciliation process is the acknowledgment of the terrible wrongs that have been committed, and an effective grief process that enables one to move beyond victimization to a true spirit of forgiveness. While individual reconciliation is critical, reconciliation must also involve whole communities and the nation [43].

∞

Issues raised about faith-based NGO peace-building

During the 2001 conference, some questions were raised about the faith-based INGOs’ role in peace-building: (1) the danger of pushing people to see all religions as the same; (2) these approaches may engender fear among those who want to affirm the particularity of their faith, who fear syncretism, and who do not see common ground with other faiths; (3) opposition of those convinced that they hear a divine call to proselytize and who are more concerned about spreading their faith than about solving some shared economic or political problem; and (4) the danger of emphasizing dialogue at the expense of the justice issues that sometimes divide faith groups and breed distrust. In response, INGOs countered that: they honour the distinctiveness of all faiths and had no intention of eroding the particularities of specific faith traditions. They recognize the right of people to share and promote their faith but also recognize the destructiveness of proselytizing when it is conducted insensitively. Justice is central and the action programs adopted by co-operation circles often focus on such justice issues as economic inequality [44]. Accessing indigenous religious virtues in finding the "true spirit of forgiveness" in reconciliation processes When I began my work with the Buddhist Sangha in Site Two, I was struck by the fact that even though I had been a practicing Buddhist for many years, my understanding of the teachings was quite different to theirs. Many animistic practices and hierarchical belief systems from Brahminism had seeped into their worldview which rendered difficult crossover in our shared values in the religion. I found especially in my work with the nuns that I had to suspend my desire for commonality in order to fully comprehend their epistemology and their cosmology. This learning curve was a painful but important one [45] [46] [47]. Even though I thought they oversimplified the principles of karma (cause and effect) and looked inside themselves for blame for the atrocities done to them, I later learned that instead I was the one oversimplifying (see below). They were living fully in their dharma (the laws that govern absolute and relative reality) and I was merely conceptualizing. Often the texts of a religion are open to conceptual interpretation by each person and we make an effort to live by that understanding (or not). Messages can strike a chord that resonates and the heart is opened to some force or power beyond the thinking mind's grasp. More commonly the conceptual messages are interpreted by someone who translates them

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for the masses according to their usefulness in getting an inspirational moral message across to others, be they family, friends, parishioners or an entire nation. There is, as we have discussed earlier, both a huge danger in this and a blessing. Probably the most internationally known religious actor in peace-building has been Archbishop, Desmond Tutu. His role in South Africa's Truth and Reconciliation process is well known. His use of the distinctive virtue of the South African peoples, "ubuntu" which when translated means you are generous, you are hospitable, you are friendly and caring and compassionate, you share what you have. It is to say, my humanity is caught up, is inextricably bound with yours. We belong in a bundle of life [48]. South Africans understood the spiritual nature of the political process they were undertaking. Tutu admits that “umbutu” gave South Africans a disposition for forgiveness and civic amnesty which was absent in other divided societies such as Rwanda and Burundi4. Irregardless, the South African example might encourage social scientists, international aid workers and civil servants and even military personnel engaged in peacemaking work to examine the cultural preconditions for reconciliation in divided societies. It is my experience that when a religion or spiritual tradition of another is completely outside our frame of reference, we abandon it and return to our own set of codes, in most cases moral codes that accompany human rights law - that which we non-reflexively5 consider to be universal. This may explain the reluctance to enter into the frames of reference of the “other” and, out of ignorance, we pass over their potential to aid the reconciliation process. Professor Elham Atashi of George Mason University, after returning from a trip to the Middle East, intended to convene reconciliation workshops and found no one prepared to attend. Atashi asserted that the international approaches often neglect the spiritual makeup and needs of local populations. She shared: In Islam reconciliation has specific meanings, including mercy, pity, compassion, and forgiveness, and it necessitates prescribed rituals. The process is spiritual and Allah is the ultimate reconciler. People are not able to achieve reconciliation on their own, but they are able to contribute to the process. A person can move on a journey toward forgiveness and restoring the dignity of those on both sides [50]. In Judaism the ultimate theological basis for forgiveness is that God himself is forgiving and the human imitates divine forgiveness and thus considers forgiveness to be a moral duty [51]. There are many definitions of forgiveness in Buddhism. A global religion with many languages, Buddhism uses a variety of Pali and Sanskrit terms for forgiveness which are probably unfamiliar to the day-to-day practitioner. During the time of the Buddha, Pali was the vernacular language in northern India and, because the Buddha believed that the Dharma should be taught in ways that even the simplest people could understand, he gave his discourses in Pali. My experience is that even the educated in Cambodia have only a rudimentary grasp of Pali, but do have Pali words in their day–to-day language such as Kamma (Karma) and Dhamma (Dharma) and Sangham (Sangha). The Cambodian concept of justice (juttethor) is tied to the Dhamma (the relative and absolute laws which govern reality) and is also linked with the concept of Kamma. Forgiveness comes from the notion 4

Ervin Staub's work in Rwanda raised questions about the adverse role religious leaders can play when people say they forgive because they believe they are expected to by religion or authorities, or cultural custom. "Genuine, rather than superficial forgiveness requires significant psychological change. Religion and authorities may, but not necessarily, promote the processes that bring these about" [49]. 5 Reflexivity is the ability to deconstruct a value system, seeing the historical systems of power and domination inherent in its adoption.


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that wrongs done by another become the perpetrator's karma to be worked out through many lifetimes. Human rights leaders in Cambodia distinguish between Khmer-Buddhist versions of forgiveness and juttehor (both of which operate within the religious framework of Kamma), and Western concepts and processes of international human rights. International human rights are based primarily on Western theories of natural law. Civil society leaders and human rights leaders see the need for social institutions, structures and attitudes that support deterrence, accountability and justice in this lifetime without waiting for karmic forces to take care of things. It is seen as a psychological necessity to have truth and justice served in order for mercy to be lasting and for true reconciliation to be possible. In Zen Buddhism, in order to forgive authentically, our teachers ask us to look into our own hearts and see the child abuser, the rapist, the terrorist. This takes tremendous courage and it cannot be faked. A poem by Vietnamese Zen Master and peaceworker, Thich Nhat Hahn, exemplifies this practice…

Please Call Me By My True Names By Thich Nhat Hanh [52] Don't say that I will depart tomorroweven today I am still arriving. Look deeply: every second I am arriving to be a bud on a Spring branch, to be a tiny bird, with still-fragile wings, learning to sing in my new nest, to be a caterpillar in the heart of a flower, to be a jewel hiding itself in a stone. I still arrive, in order to laugh and to cry, to fear and to hope. The rhythm of my heart is the birth and death of all that is alive.

I am the twelve-year-old girl, refugee on a small boat, who throws herself into the ocean after being raped by a sea pirate. And I am the pirate, my heart not yet capable of seeing and loving. I am a member of the politburo, with plenty of power in my hands. And I am the man who has to pay his "debt of blood" to my people dying slowly in a forced-labour camp.

I am a mayfly metamorphosing on the surface of the river. And I am the bird that swoops down to swallow the mayfly.

My joy is like Spring, so warm it makes flowers bloom all over the Earth. My pain is like a river of tears, so vast it fills the four oceans.

I am a frog swimming happily in the clear water of a pond. And I am the grass-snake that silently feeds itself on the frog.

Please call me by my true names, so I can hear all my cries and laughter at once, so I can see that my joy and pain are one.

I am the child in Uganda, all skin and bones, my legs as thin as bamboo sticks. And I am the arms merchant, selling deadly weapons to Uganda.

Please call me by my true names, so I can wake up and the door of my heart can be left open, the door of compassion.

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In conclusion For those who have managed to make it to the end of this paper, I owe an apology. First, for not considering more evidence for why religion and spirituality should not be a part of reconciliation and post-conflict reconstruction and second for not providing the empirical basis for my assertions which I should have provided. There are plenty of reasons for leaving religion out. In the news today, American soldiers have entered a mosque in Fallujah killing three clerics who they have declared terrorists and who probably are. The clerics and their followers are also fighting for their own and their people's survival in the face of, among other things, a botched U.S. reconstruction plan that would have closed the state-run factories leaving thousands of people without jobs; this, while the U.S. waited for the global economy to rush in and create new jobs provided, miraculously by foreign investors [53]. No investor in their right mind would venture into this country of hatred and violence. With regard to the lack of scientific evidence, let me tell you about my plan… There is a decade and a half of studies in psychology and social science that delves into the social psychology of religion's role in coping during crisis [54], including whole books and multitudes of articles outlining the psychology of the forgiveness process [55] [56] [57]. This reflects over five decades of theoretical papers and modest empirical work designed to shed light on the psychology of forgiveness. The scientific study of love and forgiveness is currently being funded here in the U.S. by the Fetzer Institute and the John Templeton Foundation. McAdam's comprehensive framework for understanding the individual has helped to provide an integrative model of personality description which guides theoretical and empirical efforts on forgiveness within personality psychology [58] [59]. And then there are Loevinger's studies on ego development that have even been done cross-culturally [60], which provide a glimpse of what level or stage of ego development might be possible for a genuine transcendent experience of love and forgiveness to become manifest in behaviour. There are also Kohlberg's studies on the moral stages of development which outline the basis of public moral education in civil society [61]. At the higher stages of moral development we even come to realize that "our consciousness of justice and moral law are not arbitrary culturally relative societal norms, but rather outcomes of universal human nature developing under universal aspects of the human condition" [62]. My personal favourite area of study is consciousness transformation and research on how people change by Robert Kegan [63]. Before I jump to draw this evidence into the fray, I must tell you that I am deeply concerned that the majority of the research has been gathered within U.S. and European populations and apply a Western paradigm of analysis within Western frames of reference. Only a few of the studies that I have mentioned (Mollica, 2002, Staub, 2004 and Wessells, 2001) have been implemented in post-conflict societies, and the others are mostly anecdotal. Even fewer, if any, have been conducted during a period of reconstruction or during a process of reconciliation. I was not encouraged therefore to include these findings. I then imagined for a brief period conducting participatory action research [64] during a training session in peace-building. I envisioned mid-level leaders participating in a process in which scientifically-proven theories on the transformation of consciousness [65] [66] and the transformative learning theories of Jack Mezirow [67] would be employed to determine the levels of consciousness of the trainees and whether the training caused any shifts in their frames of reference or value system towards a more integral or unitive consciousness. I wanted the data from this research approach to be used directly to modify the training curriculum. As interesting as this might be for me, I have grave doubts about its legitimacy. I learned from my experiences on the Thai border and later in Cambodia that theories and research, especially those based on empirical studies within Western paradigms, do not hold


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up in context. Even supposedly universal human rights laws are only useful when made valid for those who must live by them. Is there any scientific field that has universal implications for crossing cultures in conflict resolution and healing from trauma? In keeping with the theme of this chapter, I would propose a research agenda that is integrated into the reconstruction process – longitudinal research that contributes to the further documentation of successful peace-building in which indigenous and exogenous principles of spirituality and religion are accessed and utilized for lasting peace. I would see a cataloguing and codifying of transformative processes that identify the elements that bring resolution. I recommend that grounded research be done during training sessions with leaders – research that has immediate feedback for its participants and might still provide extractable data, worthy of codification, useful for the modification of the curriculum and perhaps in other settings. I am still sceptical and yet, in the span of an in and out breath, even in the midst of this challenge, I can let go and in that moment I notice my heart's yearning that all beings be liberated from suffering - a butterfly wing’s desire to be touched by and to become one with a transcendent love, unconditionally inclusive of the multi-faceted ego/self-illumined by Huston Smith's opening quote. What if the ego weren't a problem, but merely the part of our psychological make-up that creates the same attachment and identity described above – the one that induces us to feel anger towards our loved ones, our boss, the injustices in the world. What if our awareness was vast enough to include a love beyond and inclusive of all boundaries and intellectual barriers? Can our objectivity spread its wings from within and imagine an even bigger container that holds it all in a love beyond limits – the suffering and the joy, the beauty, the horror and the grace? Take a moment to allow yourself to feel that transformational possibility. See what happens. Rough-going, eh? And that too…

References [1] H. Smith, 'Can Religion Save Us: Huston Smith on Tradition, Transcendence, and Ultimate Reality an Interview by Jessica Roemischer' in (Spring Summer) What is Enlightenment Magazine (2003), p. 75. [2] L.R. Decker, 'The Role of Trauma in Spiritual Development, 33 (4) Journal of Humanistic Psychology (Fall, 1993), p.33. [3] J.P. Lederach, Building Peace: Sustainable Reconciliation in Divided Societies (Washington, D.C. 1997), p.17. [4] P. Chodron, The Places That Scare You: A Guide to Fearlessness in Difficult Times (Boston and London 2001). [5] International Committee of the Red Cross (ICRC) and Greenberg Research, Inc. The People On War Report (Washington, D.C. 1999), p.8. [6] C. Morris, 'Peacebuilding in Cambodia: The Role of Religion' in www.Peacemakers Trust.ca/research/Cambodia (2000), p.2). [7] R. S. Appleby, The Ambivalence of the Sacred: Religion, Violence, and Reconciliation (New York 2000), p. 16. [8] M. Abu-Nimer 'Conflict Resolution, Culture, and Religion: Toward a Training Model of Interreligious Peacebuilding' (38) Journal of Peace Research (Oslo 2001), pp.685704.

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[21]

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Large-Scale Victimisation as a Potential Source of Terrorist Activities U. Ewald and K. Turković (Eds.) IOS Press, 2006 © 2006 IOS Press. All rights reserved.

299

Author Index Agirre Aranburu, X. Aguirrezabal Quijera, I. Ajduković, D. Albrecht, H.-J. Colliard, C. De Nike, H.J. Edgar, A.D. Erez, E. Ewald, U. Fischer, K. Gerits, R. Getoš, A.-M. Kiza, E.

151 137 269 30 242 208 253 89 171 67 217 125 73

Lobwein, W. Nikolić-Ristanović, V. Parmentier, S. Robinson, P.F. Schmid, A. Šeparović, Z.P. Simeunović-Patić, B. Šimonović, I. Turković, K. Valiñas, M. Vanspauwen, K. Weitekamp, E.G.M. Young, A.

197 112 217 278 3 20 112 260 54 217 217 217 103


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