INTRODUCTION

In 1974, the Irish Republican Army bombing of pubs in Guildford and Woolwich led to the wrongful jailing of eleven Irishmen. The individuals were arrested by the British police based on evidence that was later discredited. In 2005, Prime Minister Tony Blair apologized to the surviving victims and their families. Mr. Blair had been expected to make his statement in the House of Commons, but Members of Parliament did not offer him that opportunity. Instead, he recorded a TV statement immediately afterwards from his office and after that, he spoke in private chambers with the families of the victims without any press present, repeating the statement he just had made.

There had been a “miscarriage of justice”, Mr. Blair said in this statement. “I recognize the trauma that the conviction caused the (…) families and the stigma which wrongly attaches to them to this day. I am very sorry that they were subject to such an ordeal and such an injustice. That's why I am making this apology today. They deserve to be completely and publicly exonerated”.

Gerry Conlon, one of the Irishmen who were wrongly jailed for the bombings, stated to the press afterwards that “[the Prime Minister] went beyond what we thought he would, he took time to listen to everyone. He exceeded our expectations in apologizing, he said it was long overdue.” Conlon added that Blair spoke with sincerity and that “…the good thing is that he has acknowledged it, and he accepts that we are in pain, that we are suffering terrible, terrible nightmares and terrible post-traumatic stress disorder”. Mr. Conlon concluded that he had got all he had wanted from Mr. Blair “and more”.

PUBLIC FORGIVENESS

Can this official apology be seen as an act of public forgiveness? If we understand public forgiveness as (a) a mutual process of transformation: a change of mind and heart on the part of the victim and the wrongdoer to end a cycle of offense and resentment6 that (b) takes place in an open, accessible forum, then the aforementioned apology seems to match the definition. Mr. Blair's statement evoked a positive reaction; Gerry Conlon, one of the victims who personally suffered from the wrongdoing, responded with gratitude to the Prime Minister.

INTRODUCTION

One of the persistent challenges in post-conflict peace-building is negotiating the multiple frameworks out of which actors are working as they try to reconstruct societies together. Sometimes the differences are proper to the people who have been engaged in the conflict; indeed, differences in cognitive frameworks can be one of the causes of conflict itself. But alongside the participants in the conflict are those outside actors who enter the post-conflict zone to help build peace: international peacekeeping forces, NGOs, humanitarian organizations, expatriates, and other international institutions. Finding a way to translate principles and policies from one framework into another is now recognized as a major task that needs to be undertaken if peace-building is to be a successful and sustainable operation.

This chapter focuses on one such zone for translation; namely, the space where secular and religious frameworks meet in the post-conflict peace-building process. On the one hand, it has been widely recognized that such key concepts as forgiveness and reconciliation have – at least for the West – significant religious roots. But on the other hand the principles, policies and actions that flow from these concepts are not entirely congruous or even compatible with one another. There has developed a spectrum of positions regarding how – or even whether – secular and religious approaches to peace-building can work together. Some would argue that in rebuilding after conflict religion is as much the problem as it is the solution, and therefore should be excluded from the process. On this view, religion is seen as intrusive, coercive, and indifferent to certain matters of justice and of human suffering. On the other end of the spectrum, religion is seen as the most important component of peace-building. Attitudes toward Archbishop Desmond Tutu's deliberate use of Christian concepts and symbols in the sessions of the South African Truth and Reconciliation Commission are evidence of the array of opinions on the relation of the secular and the religious in peace-building.

INTRODUCTION

Emphasising the need for a multi-dimensional, multi-disciplinary, integrative framework for understanding massive trauma and its Aftermath, this chapter examines victims/survivors’ experiences primarily from the psychological perspective. It describes how victims are affected by mass atrocities, their reactions, concerns and needs. Delineating necessary elements in the recovery processes from the victims’ point of view, the chapter will focus in particular on those elements of healing that are related to justice processes and victims’ experiences of such processes. Reparative justice insists that every step throughout the justice experience – from the first moment of encounter of the Court with a potential witness through the follow-up of witnesses After their return home to the Aftermath of the completion of the case – presents an opportunity for redress and healing, a risk of missing or neglecting the opportunity for healing victims and reintegrating them into their communities and societies, or, worse, causing (re)victimization and (re)traumatization. While restitution, rehabilitation or compensation may only come After the process has concluded, there are still opportunities along the way. Although not sufficient in itself, reparative justice is nonetheless an important, if not necessary, dynamic component among the healing processes. Missed opportunities and negative experiences will be examined as a means to better understand the critical junctures of the trial and victims’ role within the process that can, if conducted optimally, lead to opportunities for healing. In what follows I therefore discuss why it is essential to devote resources to all elements of justice. In line with the focus of this volume, the chapter will cite related experiences in Africa.

CONSPIRACY OF SILENCE

It was in the context of studying the phenomenology of hope in the late 1960s that I interviewed survivors of the Nazi Holocaust. To my profound anguish and outrage, all of those interviewed asserted that no one, including mental health professionals, listened to them or believed them when they attempted to share their Holocaust experiences and their continuing suffering. They, and later their children, concluded that people who had not gone through the same experiences could not understand and/or did not care. With bitterness, many thus opted for silence about the Holocaust and its Aftermath in their interactions with nonsurvivors.

Testimonial of Marie Louise Niyobuhungiro:

INTRODUCTION

Over the last decades, with landmark international crimes such as the genocides in Bosnia and Rwanda, war crimes in Liberia, the former Yugoslavia, Sderot, Israel and Gaza, the Palestinian territories, and crimes against humanity in Darfur (Sudan), Eastern DR-Congo, Uganda and Sierra Leone, there has been increased awareness of victims and victimization in the context of international crime. Unlike the eff ects of conventional criminality, which involves a relatively small number of victims, international crimes result in mass victimization. Furthermore, the scope of its resulting victimization is broader, as international crimes tend to encompass several circles of victims and incorporate aspects of victimization that are not merely additive but multiplicative in their impact.

Whereas the issue of responsibility for international crimes and blameworthiness of individual perpetrators has been the subject of much discussion and scholarly attention, victims of international crimes have for a long time remained invisible and the extent and types of their injuries have not received the same level of consideration. Although the establishment of international criminal tribunals to address the crimes committed in the former Yugoslavia and Rwanda, and the creation of the International Criminal Court, have provided initial opportunities to study victims of international crimes, there are still gaps in our understanding of the variety of victims and extent of victimization in the context of protracted conflict.

In this chapter, we explore the ref ection of victimization in the context of international crime through the lens of writers who experienced or witnessed the crimes. Specifically, we compare how national trauma is narrated by Israeli and Rwandan writers, both of whom have written against a backdrop of genocide and holocaust. We first present the socio-political background of Israel and Rwanda, their similarities and divergence, making the case for the comparative analysis. We then provide a framework for conceptualizing victimization in an international context, extrapolating from conventional to international crimes. We address aspects of victimization related to international crimes that have been ignored in mainstream victimological research and discourse – the ways in which victimization and national trauma of innocent civil society is presented in its literature.

INTRODUCTION

In Rwanda: Death, Despair and Defiance, African Rights (1994) described the horrific cruelties against and killings of Tutsi and moderate Hutu by extremist Hutu over a period of a few months only (see also Ruvebana, this volume). In 1994, the beautiful country of Rwanda – also known as the country of one thousand hills – was engulfed by one of the most eff ective and most public genocides of all time. with in 100 days, from April 7 to July 18, about 800,000 Tutsi and moderate Hutu were brutally murdered by extremist Hutu, including their neighbours, friends and acquaintances. In those 100 days, an estimated 250,000 to 500,000 women and girls, but also men, were raped and experienced other forms of sexual violence. As a 1996 United Nations report observed, “rape was the rule and its absence the exception”. For many survivors, rape and other forms of sexual violence, but also the resulting HIV infection, babies born from rape, and stigmatization and isolation by their family and community members, constitute the ultimate violation of their human rights. In addition, the genocide left hundreds of thousand children orphaned and a similar large number of survivors lost their husband, wife and/or child(ren). Many lost their houses and other possessions. The country's economy, its judicial institutions and social services were completely destroyed. Over 1 million people were involved in the genocide and survivors and perpetrators are now again living side by side. Slowly but withstrong determination, the country is recovering from its horrific past. Programs of reparation and reconciliation, national and local, have been developed, and (tradition-inspired) justice mechanisms put in place.

Many instances of mass atrocities and in many ways similar carnage preceded and followed the period of the Rwandan genocide in different parts of the world.

In the 20th century alone, hundreds of millions fatalities occurred (Rummel 1994), and the scourge of international crimes – genocide, crimes against humanity and war crimes – remains a reality today. Attempting to do justice under the sceptre of such heinous cruelty and unspeakable suffering is a daunting task, withthe enormity of evil blowing up the limits of normally held trials and convictions.

In 2009, the International Victimology Institute Tilburg (INTERVICT/Tilburg University, the Netherlands), in collaboration with Together Against Impunity in the Great Lakes Region (TAI/GLR) (a Rwandan NGO focusing on victims’ rights), The Legal Aid Forum (a platform with member organisations engaged in the provision of legal aid services to indigent and vulnerable groups in Rwanda) and Ibuka (the umbrella organization for genocide survivors organizations in Rwanda), organized a five days international conference in Kigali, Rwanda, on developing victimological approaches applied to international crimes – genocide, crimes against humanity and war crimes – with a focus on Africa. A mix of academics and practitioners participated in the conference, composed of a combination of insiders describing the processes they helped establish and guide outsiders with more theoretical expert knowledge on these processes. The speakers came from different academic disciplines and from all over the world. Moreover, several speakers of Rwandan NGOs, universities and governmental organizations were invited who shared their experiences coming from a country in which genocide took place so recently. The valuable input from representatives of NGOs enabled to combine the academic perspective with ref ections from people working on the ground. In addition, the visits to various genocide memorials left an unforgettable impression on the participants and enriched our understanding of the complexities at hand. This book contains the results of the conference in four clusters, which ref ect the conference themes.

The wide range of topics addressed was instrumental in guaranteeing in-depth and constructive discussions on developing victimological approaches to international crimes. Correcting the unsettling observation that one stands a better chance of being tried and judged for killing one human being than for killing 100,000 has been a driving force behind the (international) criminal justice initiatives focusing on international crimes. The establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY) in 1993, followed a year later by a sister institution for Rwanda (ICTR), signalled the first steps of the global community in addressing these crimes. The move was later replicated in the form of internationalized tribunals, such as those for Sierra Leone, Cambodia, East Timor and Lebanon.

INTRODUCTION

The notion of ‘victim’ in relation to the genocide perpetrated against the Tutsi population of Rwanda is not easily translatable in Kinyarwanda, the national language of Rwanda. Generally, the concept of victimhood encompasses those who were killed and those who survived the atrocities. However, Kinyarwanda generally uses ‘victims’ to refer to persons who were killed while other victimized individuals who were not killed during the atrocities are generally referred to as survivors. Most survivors lost nearly all they had or cared for during the genocide or the civil war that preceded and accompanied it. They are the first to acknowledge that nothing can be done to give them back what they lost. This does not prevent the resolute action by individual survivors or their organisations to participate in endeavours aimed at ensuring accountability for perpetrators of the genocide. The quest for retribution and reparation only represents partial remedies as they can only provide minimal satisfaction to survivors who have endured tremendous pain and suffering.

The present analysis looks at how the needs and interests of the survivors of the 1994 genocide either have or have not been accommodated under various judicial procedures dealing with the genocide legacy. The chapter dwells on procedures in Rwanda as the scene of the crimes but also as the forum where the overwhelming number of cases were handled. However, it also touches upon the position of survivors in other proceedings – the ICTR and foreign domestic jurisdictions – dealing with the Rwandan genocide. The chapter is generally concerned with the various forms of involvement of survivors in legal proceedings, from the time of instigation of proceedings to the trial phase and the aft ermath or procedures of extradition. Analytical focus on survivors of the genocide is not intended to downplay any other form of victimization before, during and aft er the 1994 genocide. A number of authors have explored the fact from the end 1950s – with the country's transition towards independence from Belgium – until the 1990 civil war and the 1994 genocide, violent repression was part of the country's strategy of governance (Prunier 1995; Mamdani 2001; De Feyter et al. 2005).

INTRODUCTION

Writing about the role of ‘civil society’ in addressing problems faced by victims in post war and post genocide Rwanda is complex and challenging. The subject is too wide-ranging to be covered in one chapter and any attempt to do so would not do justice to the subject matter and the people it concerns. Such complexities exist for three main reasons.

Firstly, the definition of the civil society does not provide a border of clear bold lines and its composition is extremely vast. Civil society is understood as a complex of non-state / governmental organisations created for the promotion of a certain or some shared value(s) in society. It centres on a

Civil society is believed to be composed of

Discussing the role of civil society in a country like Rwanda where every person from at least a young age, is encouraged to belong to a certain mutual benefit cooperative or association for purposes of community development and social cohesion, is like being asked to tell a story about every Rwandan. Cooperatives which are coordinated by the Rwanda Cooperative Agency (RCA) bring together individuals in numerous professional categories, agriculturalists or farmers, small processing and marketing groups, workers/employees of different institutions, artisanal and handcraft s, fishery, consumers, youth and women.

INTRODUCTION

Since the publication of Gustave Le Bon's study on crowd psychology (1895) there has been a growing acknowledgement of the idea that mass or collective violence is essentially different from individual violence (Grimshaw 1970; Summers & Markusen 1999; Barkan & Snowden 2001; Tilly 2003). Horrific incidents, like those occurred during the decade of 1990 in the former Yugoslavia and Rwanda, renewed academia's interest in the most extreme forms of organized and systematic manifestations of collective violence (Ceretti 2009; Smeulers 2010). This brute reality fuelled the development of a new paradigm in criminal sciences, encapsulated in the unprecedented development of the branch of international criminal law (Bassiouni 2003; Cassese 2003; Werle 2009) and the criminology of international crimes (Smeulers & Haveman 2008). Genocide, crimes against humanity, war crimes and aggression, termed nowadays as core international crimes, offer the common ground of these two disciplines.

Although both disciplines converge on the centrality of the collective dimension of core international crimes, they diverge crucially in the way they address it: international criminal law seeks to develop concepts, categories and theories of liability apposite to determine individual criminal responsibility in the context of collective violence with systemic traits, whereas criminology urges for an ethically and legally appropriate allocation of responsibility to different kinds of actors (individual, state and state-like) with respect to different kinds of off ending conducts. In other words, whereas international criminal law analyses core international crimes mainly as instances of individual deviance, criminology analyses them as instances of organizational deviance (Chouliaras 2010c).

Another central issue is the consideration of state involvement in the commission of core international crimes. International criminal law scholars have characterized them as characteristic instances of “abuse of state power” (Bergsmo & Trifft erer 2008, 8), given that they “presume a context of systemic or large-scale use of force (…) typically a state” (Werle 2009, 32). In the same vein Schabas posits that “these are generally crimes of State, in that they involve the participation or the acquiescence of a government, with the consequence that the justice system of the country concerned is unlikely to address the issue” (2010, 40).

INTRODUCTION

Turning a blind eye, looking the other way, averting your gaze, wearing blinkers, living a lie, burying your head in the sand, putting a gloss on the truth. These are some of the expressions and phrases that are commonly used to describe the concept of denial. As individuals, we can be said to ‘live in denial’ when we avoid focusing our attention on information that is too disturbing, unsettling or shameful to be faced and openly acknowledged. The political echoes of these states of mind may be found in official defence mechanisms (‘It didn't happen’, ‘What happened is not what it looks like’, ‘It was an isolated incident’, ‘We had no idea that this was happening’, ‘They brought it on themselves really’, ‘Anyway it was justified’) through which entire societies try to conceal, suppress or dissociate themselves from a record of past atrocities. If such denials of past horrors are initiated by the state, or built into its ideological facade, few would doubt that something wrong is being done. This sort of official denial is immoral, because it involves treating the victims of those wrongs as if they simply did not matter, as if they were politically and morally negligible – an attitude that is disrespectful in its very essence.

The opposite of denial is acknowledgement. To deny that something once happened is to fail to acknowledge that it did happen. This distinction between denial and acknowledgement may look simple enough, but it becomes blurred when one considers the varieties of denial or gradations of acknowledgment (half-truth, evasions, legalistic sophistries and so on) that may appear in official discourse in the Aftermath of collective violence. So what exactly does it mean for a society to ‘acknowledge’ its record of public and political atrocities? And how can this acknowledgement be transformed into action? Part of the answer to these questions will depend on “the nature of the previous regime, its residual power, how the transition happened, and the character of the new society” (Cohen 2001, 222).

INTRODUCTION

It is widely acknowledged that the latter part of the 20th century and the early years of the 21st century witnessed a shift in both the tactics and targets of modern warfare. Whereas armies of one nation once confronted those of another, during this period most wars were waged and fought between factions with in the same nation. A shift in targets from trained and uniformed soldiers to unprotected, innocent civilians also occurred. The international justice community recognized the plight of the victims of such armed conflicts which, in many cases, included entire communities of people. In efforts to ensure an appropriate criminal justice response to international crimes (including war crimes, crimes against humanity and genocide) committed either in international or internal armed conflict settings, several international criminal tribunals and courts were created. The establishment of these criminal justice mechanisms served to increase attention to victims of international crimes in general and also to particularly vulnerable victims. In this regard, while victims of gender and sexual violence have attracted attention, child victims of international crimes – perhaps the most vulnerable of all victims due to a combination of physical, psychological, economic and political factors – are the focus of this chapter.

In the years since the above statistics appeared in UNICEF's 2005 Humanitarian Action Report, they have been routinely quoted in numerous publications relating to children and armed conflict. This fact has signalled a critical need to respond to this particular group of victims. Child victims of international crimes represent a priority for the international community as the needs of arguably the most vulnerable victims of the most heinous crimes known to humankind must be addressed.

INTRODUCTION

The genocide that hit Rwanda in 1994 has been the topic of many publications, academic and journalistic alike. From the start, a specific focus was put on sexual violence committed during the genocide. Many are the stories of women and men being the victims of rape and sexual torture. By including rape and sexual torture in the list of crimes to be tried, first by state courts, later shift ed to the gacaca tribunals, these crimes have officially been acknowledged as acts of genocide within the Rwandan judicial system.

Rape and sexual torture were among the last crimes to be tried by the gacaca tribunals. Starting mid-2008 and running to mid-2009, about 7,000 cases of rape and sexual torture were tried by 17,000 gacaca judges (Inyangamugayo) in 1,900 gacaca tribunals. Although it is extremely difficult to distinguish between bad and worse acts during genocide, rape and sexual torture may be considered among the worst. Trying genocide cases in general is not an easy task, but it may easily be assumed that trying sexual torture cases are amongst the most difficult; for the judges, and even more so for the victims involved, who have to narrate and relive the most intimate details of acts committed to them.

It is therefore that early 2008 it was decided that the Inyangamugayo should receive at least some training about how to deal with rape and sexual torture cases. Because of the language and the very specific experiences, it was decided that the experts/trainers should be Rwandans. Two trainers were identified: a lawyer for the legal issues (the first author of this chapter) and a psychologist for the psychological part of the training (Jeanne Marie Ntete). However, as it would have been impossible for two expert trainers to train all 17,000 Inyangamugayo within a reasonable time, it was decided to train a group of about 250 trainers, forming teams of a lawyer and a trauma counsellor, who together would train all Inyangamugayo during a three month period. This chapter describes sexual violence during the 1994 genocide on the Tutsi in Rwanda, and the way the Inyangamugayo were trained to handle these cases in the gacaca tribunals.

GENERAL INTRODUCTION

Over the centuries, rape has been a by-product of many wars and armed conflicts and its scale in some conflicts has led to its description as a weapon of war. Although there are no comprehensive statistics on the occurrence of rape during conflicts, 14,200 registered rape cases in South Kivu province of the Democratic Republic of the Congo (DRC) between 2005 and 2007, may suggest how high and common the incidence of rape in times of war is.

The Rome Statute of the International Criminal Court (ICC or Court) has made very significant progress in recognizing several gender-based crimes, including rape, as genocide as well as crimes against humanity and war crimes. This focus has also led to significant strides in the description of the off ence, its elements and profile. This is in contrast to the Statutes of the ad hoc International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) where the definitions of the offences are given in general terms. In recognising the mere fact that both sexes suff er sexual violence in times of armed conflicts, the boundaries of justice are expanded to the inclusion of assistance to both female and male victims/survivors (OCHA 2008). The Rome Statute and the practice of the ICC envisage and include support to victims, which is eff ected by the establishment of the Victims and Witnesses Unit (VWU), the Victims Participation and Reparations Section (VPRS), and the Office of Public Counsel for Victims (OPCV).

In this manner the ICC recognizes the right of every individual to his or her physical integrity and self-worth and for the first time, victims/survivors of sexual violence are empowered to fight such breaches of their physical integrity, through actively participating as victims in the criminal proceedings before the ICC. Where the personal interests of the victims are affected, the Court permits their views and concerns to be presented and considered at different stages of the proceedings, thus departing from the ad hoc Tribunals practice of considering the victims as witnesses only.