Reparative justice and global trauma

by Kennedy Graham

The Opening of the official ICC Review Conference occurred today.  About 20 PGA members attended to submit its Declaration that came out of last week’s parliamentarian conference.

The gathering was opened by Ambassador Wenaweser, President of the Conference and one of the world’s experts on international criminal justice.  Speaking with him were the UN Secretary-General, Ban Ki-moon, former UNSG Kofi Annan, Ugandan President Museveni, and ICC Prosecutor Ocampo.  The first time Annan and Ban Ki-moon had ever shared a podium – a gracious touch.

In fact the whole thing was very nice and dignified. More so perhaps than the previous afternoon which had featured a friendly soccer game for war victims with the UNSG and the Ugandan President trotting onto the field with faint bravado.  Ban was decked out in a fetching blue 8, Museveni in a sublime white 7.  The numbers seemed to matter little. Both strove to avoid crimes against humanity with the quality of their play.  Prosecutor Ocampo was mercifully absent.  Everyone gave the President extensive concessionary treatment, including helping him onto his feet when the laws of physics mercilessly plotted against him.  But it was all good fun.

The Conference delved into plenary with statements by all 111 states parties, each offering a refined calibration over the essential issue – inclusion or not of aggression as a justiciable crime.  But the first day was more memorable for the civil society meeting on victims’ trauma in the evening.  From the refined, clinical series of logical abstractions by governments, to the human drama and passion of civil society, convening only metres away, comprised one small step for a delegate, one giant leap for the heart of mankind.

Psychologist Dr Yael Danielli has studied, through extensive interviews, 32 cases of traumatised communities around the world, starting with Holocaust survivors and finishing with Rwandans.  No community had been aware of the others.

Their common characteristic, she says, is the ‘conspiracy of silence’ that attends such tragedies.  With the Jewish diaspora, with Japan’s hibakusha , with Argentine’s and Chile’s disparados families , with South Africa’s Bantustan dwellers, and elsewhere, the most profoundly destructive feature in the aftermath of tragedy was the “conspiracy of silence”.  Silence not only by the perpetrators of crime but their own communities.

So direct trauma morphs into the indirect trauma of bitterness.  Non-one wants to know them.  Non-one wishes to acknowledge collective guilt.  All prefer to move on.  Ely Wiesel once said of the death camps: “The victims suffered more, and more profoundly, from the indifference of onlookers than the brutality of the executioners.”

A variant of silence, says Danielli, is impunity, generating recurrence of violence and moral and psychological obstacles to the re-building of communal trust that linger for generations.  And silence, empirical evidence shows, itself leads to early death.  If the Argentinean parents of the disparados spoke of their torment, they lived longer.  If not, they too died young.  Not speaking intensifies the inter-generational suffering – five generations later, the Armenians continue to grieve.  “You cannot build democracy with the hands of broken souls”.

What to do?  Merge, says Danielli, reparative (read restorative) justice with legal redress.  As Alby Sachs once put it, “Justice lies also in the process, not just the outcome”.  I once met Sachs, in Cape Town.  He strikes a poignant figure, wildly waving his arm to accentuate every pungent point he makes about truth and reconciliation.  The other one was blown off in a car-bomb attack by agents of apartheid.  Against all odds, Sachs survived and went on to haunt the regime in its declining years.  Today he is a retired Constitutional  Court judge.

Carla Ferstmann is a soft-spoken Canadian.  She works for Redress in London.  She has, as they say, ‘walked the walk’ in the killing fields.  Carla has seen survivors of torture “come into my office”, keen to see justice.  What they are seeking, she says, is self-vindication, and through that, relief from stress.  The ensuing court cases don’t do it.  The ‘steps of justice’ should promote the well-being and dignity of the traumatised.  The legal process influences suffering in different ways, some positive, some negative.  There is no magic wand, but somehow the balance between reparative justice and legal accountability has to be achieved.  Trauma affects 99% of victims, and its effects are not ‘isolated’ – they disturb the personality for life.

The media can make things worse.  Ferstmann recalls a case with a Rwandan victim, being interviewed.  The journalist was trying to hurry her up.  He must have had deadlines.  She would slow down, at the tough bits, become halting, and vague.  He would speak sharply and became irritated at a lack of precision.  This increased her trauma.  Publicity and healing on intimacies are anything but naturally intimate.

A courtroom can be a foreign place to victims.  Its solemnity and protocol induces, or heightens, insecurity, and anxiety.  This impacts on their testimony.  To insecurity is added fear of retaliation, and shame, especially for women.  That, too, increases trauma.

And there is the danger of feeling used by the legal process.  There is a tendency of tribunals and courts to objectivise the victims.  They are treated as all-important until the moment they have delivered themselves of their testimony, then they are thanked and dismissed.  They have instantaneously lost their importance to the judicial process.  In short, the victim feels used, not for the first time, albeit in a more subtle way.

But the ICC is displaying a capacity to learn.  Ferstmann recalls the occasion of the very first witness testifying in the Court’s first-ever trial – in the DRC’s Lubanga case.   This was an 18-year-old former child-soldier, whisked from Central Africa to The Hague for the purpose.  From the outset the teenager froze, and recanted his earlier testimony.  A disaster was imminent.  The Judge ordered a pause, then the Court went into closed session.  At his instructions, all judicial officers including the Judge and lawyers took off their robes.  The teenager responded, the testimony went smoothly, second time round.  Compared with the Yugoslav and Rwandan tribunals, the ICC was better.  Even professionals can learn.

Professor Eric Stover teaches at the University of Southern California.  Stover has laboured 28 years on mass graves.  He built the first forensic teams to go into Argentina in the mid-80s – some 15,000 disparados killed in 260 secret detention centres.  Most had been buried in unmarked mass graves.  Under President Alfonsin’s reforms, the (reformed) military ordered exhumations.

The families were so desperate, they would hover around the yellow-tape, offering photographs.  “Please find him, please find him.”  They would implore the teams to come to their homes, and friendships would develop.  Most times a bedroom would be left preserved, untouched, no item moved since the Day.  Teams would, respectfully, ask for a strand of hair from the brush on the dressing-table.  It helped.  In so many different ways.

It was pretty much the same the world over, in Chile, in Guatemala, Kurdistan, Bosnia, Rwanda – the latest halls of human shame.  .

“I Decided Not to Wear Them Today”:

Betty Hurungi is Kenyan. She runs the ICC Trust Fund for War Victims.  She had just returned from Northern Uganda, meeting with twenty survivors.  Most had limbs missing.  This time they had been victims of army brutality, not from the guerrillas.  Some soldiers were sitting in the room, but the victims were not intimidated.  One young man had two stumps for arms.  “I have prosthetic arms”, he explained.  “And I am very grateful to the doctors.  They were very kind to me.  But I decided not to wear them today.  I wanted the soldiers to see me as I truly am.”

During the discussion, one African woman took the floor.  “I am from Darfur, in Sudan.  I am still living in a IDP camp.  We are raped at least once a year – that is an average.  The ICC and its judicial process – it has come as a big relief.  But recently the Bashir Government has re-elected itself, and things are deteriorating again.  I am lucky. Today, I am safe.  But the presidential inauguration was yesterday.  Individual trauma makes for communal trauma. The whole community is completely traumatised.  The international community must help.”

What does all this suffering mean to New Zealanders?  It is all so remote – ‘far away countries of which we know little’.   Well, that was last century’s thinking.  If we are human, we shall care.  And in fact we do.  Back in 1997, during the negotiations for the Rome Statute, a young Italian, Davide Donat Cattin, was an active promoter of international criminal justice.   He and others conceived the idea of victim reparation being written into the Rome Statute.  Not many sympathised.

It got support, however, from one Government.  A New Zealand diplomat was instrumental in getting Article 68 (3) into the Statute.  The diplomat was Felicity Wong.  I knew Felicity in previous days, but had lost track.  Congratulations, Felicity.  And congratulations, Davide.  Today, he works for PGA.

Yael Danielli closed the session with a poem.  It comes from a Holocaust survivor. She had lost her mother and sister up the chimney.  She wrote: “Mother, I look into the sky.  I see your heart floating.  How do you bury smoke?  How do you place a grave in the sky?  For me, you never died.  You are eternally there.”

It is the eternal presence of the victims of human hate and brutality – evils that live on in the human drama – that necessitates the International Criminal Court.  And it necessitates the support for the Court by the NZ Government, none of whose cabinet ministers or backbenchers was able to make the trip.  And it explains the reason for my being here, in Kampala, when I could be elsewhere doing other things.  And why we, citizens of our own beloved country, should cry out against injustice, not only at home in Aotearoa, but urge our Government to give support to the Court that works, in far away countries, for all of humanity.