Security, Reconstruction and Reconciliation: When the Wars End

Security, Reconstruction, and Reconciliation

This key text brings together a team of leading contributors to address the complex issues of security, reconstruction, and reconciliation in postconflict societies. Security, Reconstruction, and Reconciliation is organized into four main parts: ● ● ● ●

the social, political, and economic dimensions of conflict; the impact of conflict on women and children; reconstruction and past human rights violations: healing the nation; and disarmament, demobilization, reintegration, post-war reconstruction, and the building of a capable state and the role of the international community in the peace process.

The chapters offer a detailed and succinct exposition of the challenges facing postconflict societies by articulating the vision of a new society. Throughout the book the experienced authors discuss the issues in the context of possible solutions and lessons learnt in the field. The book also has a foreword by Francis Deng, the Former UN Secretary General’s Special Representative on Internally Displaced Persons. This new book is a valuable resource for researchers, policymakers, and students in the fields of conflict resolution, security studies, law, and development. Muna Ndulo, LLB (Zambia), LLM (Harvard), DPhil (Oxon), is Advocate of the Supreme Court of Zambia. He is also Professor of Law at Cornell Law School and Director of the Institute for African Development at Cornell University, USA.

Security, Reconstruction, and Reconciliation When the wars end

Edited by Muna Ndulo

First published 2007 by UCL Press The name of University College London (UCL) is a registered trade mark used by UCL Press with the consent of the owner Taylor & Francis 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN Simultaneously published in the USA by UCL Press 270 Madison Ave, New York, NY 10016 This edition published in the Taylor & Francis e-Library, 2007. “To purchase your own copy of this or any of Taylor & Francis or Routledge’s collection of thousands of eBooks please go to www.eBookstore.tandf.co.uk.” UCL Press is an imprint of the Taylor & Francis Group, an informa business © 2007 Muna Ndulo for selection and editorial matter; the contributors for individual chapters All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging in Publication Data A catalog record for this book has been requested ISBN 0-203-96573-6 Master e-book ISBN

ISBN10: 1–84472–116–7 (hbk) ISBN10: 1–84472–117–5 (pbk) ISBN10: 0–203–96573–6 (ebk) ISBN13: 978–1–84472–116–0 (hbk) ISBN13: 978–1–84472–117–7 (pbk) ISBN13: 978–0–203–96573–3 (ebk)

Contents

List of illustrations List of contributors Foreword Acknowledgments List of acronyms Introduction

ix x xv xxvii xxviii 1

M UNA N D ULO

PART I

The social, political, and economic dimensions of conflict 1 Arms trafficking and the local political economy of conflict

11 13

WILLIAM RENO

2 HIV/AIDS, conflicts, and security in Africa

26

O B I J I O FO R AGINAM

3 Transparency and accountability in the use of petroleum revenues: a fundamental ingredient for security, reconstruction, and reconciliation in Africa’s booming petro-states

38

I AN GARY

4 Protecting and reintegrating displaced women and children postconflict ERIN MOONEY

58

vi

Contents

PART II

Impact of conflict on women and children 5 The impact of civil war on women and children in Africa

83 85

M E R E D I T H T U RSHEN

6 Security and reconstruction in Africa: role of Security Council Resolution 1325, Women, Peace and Security

97

S H E R R I L L WHIT T ING TO N

7 Progress and hurdles on the road to prevent the use of children as soldiers and to ensure their rehabilitation and reintegration

108

ILENE COHN

8 Enhancing the role of women in electoral processes in postconflict countries: constitutional and legislative measures

117

M UNA N D ULO

PART III

Reconstruction and past human rights violations: healing the nations 9 Truth commissions versus prosecutions: an African perspective

131 133

M AR K S. K END E

10 Justice for whom? Assessing hybrid approaches to accountability in Sierra Leone

145

C H AN D R A LEKHA SRIRAM

11 Victims’ responses to truth commissions: evidence from South Africa DAV I D BAC KER

165

Contents

vii

PART IV

Disarmament, demobilization, reintegration, post-war reconstruction, and the building of a capable state and the role of the international community in the peace process

197

12 Reconstruct governance to rouse Liberia, long forlorn

199

BYRO N TAR R

13 The postconflict security gap and the United Nations peace operations system

247

P E T E R H. GANT Z

14 Africa’s security dilemma: national stability versus world security

276

M A RC E L K I T I SSO U

15 US security assistance and Africa: challenges of weapon sales and military aid

284

M AT T HE W S C HRO ED ER

16 Concluding thoughts: after the fighting stops

307

M I LTO N J. E S M AN

Bibliography Index

310 339

Illustrations

Figures 11.1 Victims’ evaluations of the TRC process (pooled sample) 11.2 Victims’ evaluations of the TRC process (Cape Town sample) 11.3 Victims’ evaluations of the TRC process ( Johannesburg sample)

183 184 184

Tables 5.1 5.2 5.3 5.4 5.5 5.6 5.7 5.8 5.9 5.10 5.11 5.12 5.13 5.14 11.1 11.2 11.3 11.4 11.5 11.6 11.7 15.1 15.2

African women and children War dead Deaths in wartime Widowhood Household heads who are women Under five mortality in war-torn countries Children and HIV/AIDS in war-torn countries Poverty in war-torn countries Food insecurity in war-torn countries Health profiles Female life expectancy in war-torn countries Maternal mortality rate Births attended by skilled health staff Public expenditure Characteristics of Johannesburg survey respondents Characteristics of Cape Town survey respondents Survey respondents’ exposure to political violence Perpetrators identified by survey respondents TRC status of survey respondents Factors in statement submission Sequence of assessments State Department Section Defense Department Section

86 87 87 88 88 89 89 91 92 92 93 93 93 95 174 175 176 177 177 180 182 300 301

Contributors

Obijiofor Aginam, LLB (University of Nigeria), BL (Nigeria Law School), LLM (Queens, Ontario), PhD (British Columbia), is an Assistant Professor in the Department of Law, Carleton University, Ottawa. He teaches public international law, global governance and human rights, environmental justice, and the law of international institutions. His research interests include: globalization and global governance of infectious diseases, environmental justice and multinational oil corporations in the third world, south-north relations, law and development, and sustainable conservation of ecological and biodiversity resources by local communities. Professor Aginam practiced law in Nigeria 1993–96. He has worked as a Legal Officer for the World Health Organization, and as Research Fellow for the Social Science Research Council. David Backer, BA (Amherst), MA (Michigan), PhD (Michigan), is an Assistant Professor of Government at the College of William and Mary. During 2005–06 he was a Post-doctoral Scholar at the Stanford University Center for Democracy, Development and Rule of Law. His research interests include: comparative politics, African politics, human rights, elections in sub-Saharan Africa, ethnic conflict, democratization, and authoritarian regimes. Ilene Cohn, BA (Amherst), JD (Ohio), MIA (Columbia), is an international human rights lawyer and is currently Chief of Policy, Information, and Resource Mobilization with the United Nations Mine Action Service, in the Department of Peacekeeping Operations in New York. Previously, Ms Cohn was the Legal/Child Rights Adviser with the Office of the Special Representative of the Secretary-General for Children and Armed Conflict at the United Nations. From 1997 to 1999 she was a Visiting Fellow at the Harvard Law School Human Rights Program. She served as a Legal Officer with two United Nations Human Rights Verification/Peacekeeping Missions, ONUSAL in El Salvador and MINUGUA in Guatemala, and was Research Director of the Project on Children and War at Columbia University’s Center for the Study of Human Rights from 1988 until 1993. Francis M. Deng, LLB (Khartoum), LLM (Yale), JSD (Yale), is Research Professor of International Politics, Law and Society at the John Hopkins

Contributors xi University School of Advanced International Studies (SAES) where he is also the Director of the Center for Displacement Studies and Co-Director of the Brookings-SAIS Project on International Displacement. From 2001–02 he was Distinguished Professor of Political Science at the Graduate Center of the City University of New York, and Co-Director of the Brookings-CUNY Project on Internal Displacement. From 1992–2004, he served as the United Nations Secretary-General’s Representative on Internally Displaced Persons. Dr Deng also served as Human Rights Officer in the United Nations Secretariat; scholar at the Woodrow Wilson International Center for Scholars; Distinguished Fellow at the Rockfeller Brothers Fund; and as the Jennings Randolph Distinguished Fellow of the United States Institute for Peace. He was Visiting Lecturer at Yale Law School and from 1996 to 2000 acted as Chairperson of the Africa Leadership Forum during the imprisonment of its Chairperson Olsegum Obasanjo. Dr Deng has also served in his country’s diplomatic service. He served as Sudan’s Ambassador to Canada, the Scandinavian Countries and the United States and as Minister of State for Foreign Affairs. He resigned in 1983 in protest to the Islamic Fundamentalist Orientation of the government which triggered the resumption of the civil war. Milton J. Esman, BA (Cornell), MA (Princeton), PhD. (Princeton), is Professor Emeritus, Department of Government, Cornell University. He specializes in development politics and administration. He served as Director for the Einaudi Center for International Studies at Cornell. Peter H. Gantz, BA (Keenesaw State University), MS (George Mason), is an advocate with Refugees International, where he manages advocacy in the areas of peace operations, postconflict rule of law operations, and related foreign policy issues. Mr Gantz also serves as the Executive Coordinator for the Partnership for Effective Peace Operations (PEP), a Washington, DC-based policy working group of nongovernmental organizations, academics, practitioners, and others that supports public policy initiatives to improve the capacity of national and global peace operations. Before joining RI, Mr Gantz worked with Citizens for Global Solutions in Washington and the Carter Center in Atlanta. Ian Gary, MA (Leeds), is the Strategic Issues Advisor for Africa, Catholic Relief Services (CRS). He is the lead staff person for the CRS Extractive Industries in Africa Initiative. Prior to joining CRS, he was with the Human Rights and International Cooperation unit in the Ford Foundation in New York. Gary has worked with local nongovernmental organizations in Ghana and Zimbabwe and has conducted field missions to 15 African countries, including Nigeria, Chad, Cameroon, and Congo-Brazzaville. Mark S. Kende, BA (Yale), JD (Chicago), is a James Madison Professor in Constitutional Law and Director of the Drake Constitutional Law Center at Drake University Law School. Prior to entering academia, he clerked for a federal judge and worked as an associate for a Chicago law firm. He formerly served as Visiting Professor of Law at Notre Dame Law School where he taught

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Contributors Constitutional Law and Civil Rights. In 2003, he served as Chair of the Association of American Law Schools Section on Africa. In 2000, Professor Kende was a Senior Fulbright Scholar and Visiting Professor of Law at the University of Stellenbosch in South Africa. While in Africa, he conducted a workshop on constitutional law topics for a group of civil society leaders in the Democratic Republic of the Congo. In March 2004, Professor Kende served as a Fulbright Senior Specialist in the former Soviet Republic of Moldova teaching constitutional law and training young professors on teaching techniques.

Marcel Kitissou, BA (Benin), PhD (Bordeaux), PhD (Syracuse), is Professor at George Mason University. He formerly served as the Executive Director of the Africa Faith and Justice Network in Washington, DC. Professor Kitissou taught at the University of Benin, Togo, 1991–92; and at Oswego State University (NY) where he directed the Oswego University’s Peace Institute. Marcel’s research interests include: peace and conflict resolution, US policy toward Africa, nonviolent strategies for social change, politics and conflict in Africa, and decision making in public administration. Erin Mooney, BA (Toronto), MPhil (Cambridge), PhD (Cambridge), is Deputy Director of the Brookings Institution-University of Bern Project on Internal Displacement and Senior Adviser to the United Nations Representative of the Secretary-General on the Human Rights of Internally Displaced Persons. Her research interests focus on protection of the rights of internally displaced persons. Muna Ndulo, LLB (Zambia), LLM (Harvard), DPhil (Oxon), Advocate of the Supreme Court of Zambia, is Professor of Law at Cornell Law School and Director of the Institute for African Development at Cornell University. In 1986, he joined the United Nations and served as Legal Officer in the Secretariat of the United Nations Commission on International Trade in Vienna, Austria. He has served the United Nations in various roles in relation to institution-building in postconflict situations and election monitoring. He has served as: Chief Political Adviser to the United Nations Observer Mission in South Africa (UNOMSA); Legal Adviser to the United Nations Mission in East Timor 1999 (UNAMET); Legal Adviser to the United Nations Mission in Kosovo, 2000 (UNAMIK); and Legal Expert to the United Nations Mission in Afghanistan, 2003 (UNAMA). He served as Dean of the University of Zambia School of Law and as Editor-in-Chief of the Zambia Law Journal and of the Zambia Law Reports. William Reno, BA (Haverford), MA (Chicago), PhD (Wisconsin), is an Associate Professor of Political Science at Northwestern University. He is a specialist in African politics and the politics of “collapsing states.” His current work examines violent commercial organizations in Africa, the former Soviet Union, and the Balkans and their relationships to state power and global economic actors. Reno’s research takes him to places such as Sierra Leone, Congo, and Central Asia where he talks to insurgents (including so-called warlords), government officials, and foreigners involved in these conflicts.

Contributors xiii Matthew Schroeder, BA (Wittenberg), MA (Columbia), is a Research Associate with the Arms Sales Monitoring Project. He received a Masters in International Affairs from Columbia University’s School of International and Public Affairs in 2002 and has served on the National Council (Board of Directors) of the Fellowship of Reconciliation (FOR). He recently completed a term as the Chair of the Arms Transfers Working Group. Chandra Lekha Sriram, BA (Chicago), MA (Chicago), JD (University of California, Berkeley), PhD (Princeton), is a lecturer in the School of International Relations at the University of St. Andrews. Her areas of specialization include international relations, international law and organizations, peacekeeping, and human rights. She was Senior Associate at the International Peace Academy in New York, directing its conflict prevention project, From Promise to Practice: Strengthening UN Capacities for the Prevention of Violent Conflict. She is a member of the California State Bar Association, the American Political Science Association, the American Society of International Law, and is a core advisory group member of the International Law and International Relations project of the Social Science Research Council’s Global Security and Cooperation program. Byron Tarr, BA (Cuttington), MA (Illinois), PhD (Illinois), is an Economist. He served as Minister in various capacities under the Tolbert Government in Liberia and as Finance Minister in the Amos Sawyer Interim Government, Republic of Liberia. Meredith Turshen, BA (Oberlin), MA (New York), DPhil (Sussex), is a Professor in the Department of Urban Studies and Community Health, in the Edward J. Bloustein School of Planning and Public Policy, Rutgers University. Her research focuses on political science, with special interest in the politics of health and healthcare in Africa. She serves as the Editor of African Women’s Health, Political Co-Chair of the Association of Concerned Africa Scholars, Treasurer of the Committee for Health in Southern Africa, contributing editor of the Review of African Political Economy, and is on the editorial board of the Journal of Public Health Policy. Sherrill Whittington, BA (Newcastle), Dip. Ed. (Newcastle), MA (New England), MA (Australia National University) is a consultant on gender, security, and peace-building. She is currently with Emergency Programs at UNICEF Headquarters, New York, where she returned after a three-and-half year appointment to the Department of Peacekeeping Operations. During this period she was head of the Gender Affairs Unit in the United Nations Peacekeeping Mission in East Timor (UNTAET), and then project manager on gender and peacekeeping. Prior to that she served at UNICEF headquarters, focusing on gender, humanitarian crises, and postconflict situations. She also worked with the Conference Secretariat for the Fourth World Conference on Women, the Commonwealth of Learning (Vancouver), and the Australian government in defense and security issues.

Foreword

The crisis and the challenge The premise of the 1951 UN Convention on refugees was that refugees, by crossing international borders, had lost the protection of their own state authorities, and therefore needed international protection. Those uprooted within their own national borders were denied such protection because they were assumed to be protected by their governments, who, in any case, would keep the international community at bay to safeguard their sovereignty. Initially, the refugees who were guaranteed such protection were confined to Europe and the crisis was expected to be of a short post–Second World War timeframe. While the refugee crisis has spread across the globe and the African and Latin American conceptual and practical contributions have broadened the definition of a refugee, a large category of those uprooted within their own borders has emerged, in particular after the end of the Cold War. Over the last decade, the international community has been confronted with this new global crisis of internal displacement, involving some 25 million people in over 50 countries around the world, who have been forced by internal armed conflicts, communal violence, and egregious violations of human rights, but have not crossed international borders.1 Had they moved across the borders, these uprooted people would be considered refugees for whom the international community has well-established legal and institutional frameworks and mechanisms for their protection and assistance. But because they remain within their state borders, there is no legal or institutional basis for providing them with international protection and assistance, even though they are exposed to severe threats to their physical and psychological security, gross violations of their human rights, and denial of their basic for needs to shelter, food, medicine, sanitation, potable water, occupation, and education.2 The assumption that these people are protected by their own governments is belied by the fact that often they are victims of neglect and even persecution by their own governments. A personal observation confirms the identity crisis behind the conflicts that generate displacement and the response of the governments concerned. On my country missions as Representative of the UN SecretaryGeneral on Internally Displaced Persons from 1992 to 2004, I would, in addition

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Foreword

to discussing with national authorities and representatives of donor governments, international agencies, and national organizations, meet with the displaced people themselves. At the end of my discussions with them, I would ask them what message they wanted me to take to their national leaders. In one Latin American country, the response of the community leader was that they did not consider those in government their leaders. “To those people,” he said, “we are not citizens but criminals and our only crime is that we are poor.” In one of the former Soviet Republics, now an independent state, the response was virtually the same, though on the basis of an ethnic rather than economic class basis: “Those are not our leaders,” the leader of the group said. “None of our people are in that government.” And in Africa, a Prime Minister said about the displaced of his country, “Those are not my people. In fact, the food you the international community give them is killing my soldiers.” Although the crisis is global, Africa, with over half of the world’s refugees and displaced persons, is the worst hit. In addition, the plight of the internally displaced refugees often overflows into porous borders of neighbors through refugees who enter with their political baggage and an agenda of return with vengeance. Until now, the problem has been perceived as a humanitarian crisis and, to a more controversial extent, a human rights issue. It is, however, becoming increasingly apparent that what is involved in most cases is a fundamental crisis of national identity that goes to the heart of social, ethnic, cultural, and religious cleavages within a country. These cleavages determine who is in as a recognized citizen, and who is out, denied a sense of belonging on equal footing, with dignity and pride in the national identity framework. The challenge this situation poses for the affected countries is profound. It demands a fundamental restructuring of the equations of power sharing and resource allocation. What is required is a framework of peace with justice and a mutual sense of belonging and participation on equitable bases, without discrimination based on divisive factors of identity. Such factors as gender and age also often figure as grounds for discrimination that merit special attention and remedial action. Beyond the pressing need for protection and assistance, this is a long-term challenge of human security and nation-building that ultimately must be confronted by the nationals of the country in question, but in which the international community can and should play a constructive role in accordance with the universalizing norms of human dignity.

International response to displacement The United Nations Commission on Human Rights decided in 1992 to place the issue of internal displacement on its agenda and requested the Secretary-General to appoint a Representative on Internally Displaced Persons to study the problem and recommend ways in which the United Nations system and the international community in general might respond to the needs of the internally displaced. I was honored to have been appointed by the Secretary-General as his representative

Foreword xvii on the issue, a position I held until 2004, when I was succeeded by a Swiss Professor of International Law, Walter Kalin, who had been a close collaborator in our work.3 Since 1992, significant progress has been made in this area. Various studies have been carried out under the mandate and normative and institutional frameworks for protecting and assisting the internally displaced have been developed. More specifically, working in close collaboration with a team of international legal experts, chaired by Professor Kalin, and in a broad-based process of consultation involving representatives of relevant UN agencies, regional organizations, and nongovernmental organizations, we developed the Guiding Principles on Internal Displacement. These principles restate the relevant standards in existing international human rights law, humanitarian law, and analogous refugee law, with a degree of reform to clarify gray areas and bridge gaps in the law.4 We have also made recommendations for institutional arrangements, presenting various options ranging from the creation of a specialized agency for the internally displaced, to the designation of an existing agency to assume full responsibility for them, to a collaborative approach that utilizes the capacities of existing agencies. This last option proved to be the preferred one. Since the Guiding Principles were presented to the Commission on Human Rights in 1995, and taken note of by the Commission, they have been well received by the agencies of the United Nations, regional organizations, governments, and nongovernmental organizations, far beyond the expectations of all those who were involved in their development. While a number of governments have questioned the manner in which they were developed and launched, and would prefer their submission for formal adoption by the United Nations system, the Principles, though persuasive and not legally binding, appear to be firmly established.5 The coordination needed for the collaborative institutional arrangements to be effective has also evolved significantly. The reform agenda of the Secretary-General designated the Emergency Relief Coordinator (ERC) and Under-Secretary-General for Humanitarian Affairs as the head of the Office for the Coordination of Humanitarian Affairs (OCHA), to function as the focal point in the system charged with the responsibility of ensuring that the displaced are protected and assisted. A series of other measures included initially, the establishment of an interagency Working Group on Internally Displaced Persons, later succeeded by the more high profile Inter-Agency Network, which, though not operational, mobilizes the specialized agencies to be more effective on the ground. An IDP Unit established at OCHA to facilitate the role of the Emergency Relief Coordinator was elevated in 2004 to a Division within OCHA to assist the Emergency Relief Coordinator in discharging his responsibilities on behalf of the internally displaced.6 Within the UN system, as Representative of the Secretary-General on Internally Displaced Persons, I played the catalytic role of advocating the cause of the IDPs and engaging governments, intergovernmental and nongovernmental organizations, and all other pertinent actors in a dialogue on their behalf. In that connection, I focused the activities of my mandate in five interconnected areas: promoting the dissemination and application of the Guiding Principles at all

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levels, from local to global; appraising the performance of the operational agencies and how they can be made more effective on the ground; undertaking country missions to assess the conditions of the displaced and plead their case with governments, organizations, donors, and all those whose mandates and scope of activities impact on them; collaborating with regional, subregional, and civil society organizations in programs and activities aimed at protecting and assisting the internally displaced; and conducting studies into various aspects of the crisis of internal displacement and the response to it at various levels, from national, through regional, to international.7

The responsibility of sovereignty Perhaps the approach that has emerged as the most powerful in the dialogue with governments, whether on a bilateral basis or in the pertinent bodies of the UN system and other regional organizations, is to recognize the problem of internal displacement as inherently internal and therefore under state sovereignty, to affirm respect for the sovereignty of the state and its policies, but to uphold sovereignty positively as a concept of responsibility for ensuring the protection and the general welfare of the citizens and all those under state jurisdiction. Sovereignty must not be seen negatively as a barricade against international solidarity with people in need. This approach to sovereignty as responsibility was initially developed in the African Studies Program at Brookings which I established and directed from 1988 to 2001, with a focus on conflict resolution, human rights, democracy, and development.8 The Guiding Principles on Internal Displacement are indeed grounded in the responsibility of the state toward its citizens, with the international community playing a supportive role. In this positive conception of sovereignty as responsibility, governments are expected to provide protection and assistance to their needy populations, and when they cannot for reasons of lack of capacity, should invite or at least welcome international assistance. But when governments lack the requisite capacity or the political will to discharge their responsibility, whether on their own or in cooperation with the international community, and masses of their people face severe hardships and even the threat of death, they cannot expect the international community to remain aloof and not get involved. Such involvement can range from diplomatic dialogue, to various forms of coercive sanctions, to military intervention in extreme cases. The best way to protect national sovereignty is therefore to discharge the responsibilities associated with it and to seek the assistance of the international community, as needed.

Opportunities in crisis Many of the conflict situations that generate internal displacement involve acute crises of national identity based on severe racial, ethnic, cultural, or religious cleavages. How groups define themselves or are defined by others and how the national framework is perceived, leave serious gaps of identification with the nation. Oftentimes, the populations that are affected by the conflicts are seen not

Foreword xix as fellow citizens who have the right to be protected or assisted by the state, but, through association with a warring party, as part of the enemy, if not the enemy itself. As a result, instead of being protected and assisted, they are neglected and even persecuted.9 During the Cold War, many of these internal contradictions and actual or potential conflicts were overshadowed by the bipolar control mechanisms and support systems of the superpowers and their alliance networks. As long as a government was seen as ideologically aligned with one of the superpowers, that government was shielded, protected, and assisted. Governments therefore had the capacity to oppress and repress internal dissention and the self-assertiveness of minority and other marginalized groups. When the warring factions in an internal conflict had the competing support of the two superpowers, the stakes became much higher and the balance of power tended to perpetuate the conflict, much to the suffering of the affected populations on both sides. The Cold War polarization of the world, therefore, meant that internal conflicts tended to be associated with the proxy confrontation of the superpowers and their domestic roots not well understood. The end of the Cold War removed this distortion and external support from the outside. The result was that the roots of internal conflicts as embodied in unmanaged or badly managed situations of diversity, with acute disparities or inequities, became exposed. Furthermore, in the conflicts, major powers no longer had vested geopolitical interests to justify their involvement in support of one side or the other or to welcome refugees. With governments weakened as a consequence, insurgent movements seeking various forms and degrees of autonomy, separation, or fundamental reform of the system became more effective in challenging the status quo. Consequently, the number of internally displaced persons increased exponentially.10 Equally important is the extent to which the resulting displacement alters the configuration of the settlement patterns in the country with the poor rural communities, normally the most affected, moving en masse to towns and cities and becoming exposed to the services and opportunities to which they had been denied in the prevailing national distributive system. Although many displaced communities find discrimination and the indignities they suffer in the new situations intolerable and wish to return to their areas of origin, as soon as the security conditions permit, many others no longer wish to return to the status quo. Whether they return to areas of origin, integrate into communities where they move, or seek resettlement elsewhere, these people can no longer be satisfied with their old position in the country. To the extent that peace, unity, stability, and viability of the nation are overriding objectives, a responsible and wise leadership must not only accept, but indeed initiate and lead a major reform with the view to establishing a new basis for sharing power, national resources, services, and opportunities for equitable development.

Addressing the root causes The response of the international community to the crisis of internal displacement continues to be seen largely as a humanitarian challenge, focusing on assistance

xx Foreword and to a more problematic extent, physical security and human rights protection. And yet, in many conflict situations, unless the root causes are addressed, which means not only ending the conflict, but also remedying the conditions of gross inequity, real or perceived, that generate the conflict in the first place, durable peace is unlikely to be achieved. An effective response to the crisis of internal displacement beyond the challenge of humanitarian assistance and protection must go to address the deeper, root causes that lie in the structural problems of nation-building: mismanagement of identity conflicts, gross inequities in the shaping and sharing of power, national wealth, opportunities for development, and chronic abuse of power resulting in egregious violations of human rights. With the end of the Cold War and the strategic withdrawal of the major powers, crises began to be perceived in their proper national and regional contexts, instead of being distorted as part of the proxy confrontations of the Cold War era. This was indeed a positive development. Commensurate to this was the need to reapportion responsibility, with the state concerned assuming the primary role, countries of the region, who are affected by the overflow of internal crises, coming next, with the international community still needed to play a supporting role as the ultimate guarantor of universal human rights and humanitarian standards. The tragic events of September 11 changed the world in a dramatic way. The United States successfully mobilized a united international front against terrorism, not only by staging a massive attack on the Taliban and their Al-Qaeda allies in Afghanistan, but also by setting in motion a global antiterrorism campaign. This new dynamic presents two potential directions for the world. The unity of purpose against terrorism, which the United States is championing, could bring the world together around fundamental values and principles of security, stability, and global law and order. Pursued in close collaboration with allies around the world and within the framework of the United Nations, this could be a monumental accomplishment for global governance and public order. On the other hand, there is the potential that the world could revert back to the Cold War divide between ideological camps, those committed to the war against terrorism and those outside this circle. What is even more ominous is that such a division could lead to accepting and supporting those who are, or purport to be, allies in the war against terrorism, irrespective of their domestic record in terms of democracy and respect for human rights. The challenge for the post–September 11 world order is whether the United States and its allies, indeed the international community, beyond welcoming the alliance of all nations against terrorism, will define terrorism universally and fight it wherever and by whomever it is practiced, including when it is inflicted by a state against its own citizens, as was the case in Afghanistan. The risk is that the world may be drifting back to the Cold War polarization of the world into those who are seen as partners in the war against international terrorism, and be accepted and supported, whatever evils they commit against their own population, and those who are classified as terrorists, and be condemned and countered whatever the legitimacy of the cause they may exploit to unacceptable ends.

Foreword xxi Ironically, displacement often exposes the affected rural population to the opportunities which citizens in urban centers enjoy and which they have been denied. It can have the effect of increasing their resentment and hostility. Unless effectively remedied, this may sow the seeds of further conflict in the country. Indeed, the crisis of displacement should be seen as a wake-up call and an opportunity for addressing the deeper, structural ills of the country to forge a national common ground and collective vision for nation-building.

A call to action Along with the current efforts at assisting and protecting displaced populations, it would seem that the time has come to urge and assist governments to begin addressing the root causes of displacement by seeking in earnest a constructive resolution of the conflicts through a just and lasting peace. Beyond that, the challenge of nation-building calls for the establishment of a constitutive process that ensures democratic participation, respect for fundamental rights and freedoms, and equitable opportunities for sustainable development. This new focus on the challenges posed by displacement will require a more strategic approach to in-depth studies of specific country situations, sharing the results with opinion-shapers and policy-makers, national political and administrative authorities, and international partners. The Guiding Principles could provide a conceptual framework for analyzing the country situations in terms of prevention, response, and solutions. Several questions corresponding to this three-phase approach would provide the appropriate framework for research and dialogue, and outreach activities, involving concurrently both analysis and advocacy: ●

●

●

First, what in ideal and practical terms is needed to create a constitutive national political, economic, social, and cultural framework with which all citizens can identify and which would provide them with a sense of belonging with pride and dignity as citizens and on more or less equal footing with national or other groups? Second, should a conflict or a crisis occur that displaces populations or otherwise affects civilian populations, what humanitarian and human rights principles should the government and other parties to a conflict observe to ensure that innocent citizens and civilian populations are protected and assisted without discrimination based on the identity factors behind the conflict? And to what extent should refugees and internally displaced persons continue to be treated separately when the causes for the displacement and their needs are almost identical? Third, what constructive measures could the parties to the conflict take to facilitate solutions for the displaced and other affected populations to ensure for them alternative options, including return to areas of origin in safety and with dignity, resettlement in other areas of their choice with appropriate protection and assistance, or otherwise integration into the communities where they happen to be according to their wishes?

xxii Foreword ●

Fourth, what are the main issues in the conflict that need to be addressed, the positions of the parties in conflict that need to be reconciled, and the principles that are likely to be accepted as the basis for a constructive system that guarantees peace with justice, as prerequisites for security and stability?

The search for answers to these questions could be the objective of research agendas, teaching programs in academic institutions, intellectual and policyoriented discussion groups, and outreach activities in which policy recommendations are widely disseminated and advocated.

Developing an African response Plans are underway in the African Union (AU) to develop an appropriate AU response to internal displacement focusing on an instrument for the internally displaced. To that end, it would seem appropriate to build on the experience within the United Nations, but with a natural orientation to the situation on the continent. As I have already explained, work on the Guiding Principles was a protracted, incremental process that involved initially requesting legal scholars to produce drafts, building on the three sources, human rights law, humanitarian law, and analogous refugee law. These drafts were then thoroughly discussed by a team of senior legal scholars over several sessions, with each session advancing the text and raising issues for further research and consideration. The discussion groups that considered the texts began to broaden to include representatives of relevant UN agencies, regional organizations, and NGOs. In these sessions, we tried to ensure African participation in a variety of capacities, but obviously, in retrospect, considering that the Continent is the worst affected, African contribution could and should have been stronger. Once the draft was finalized and endorsed by the UN Inter-Agency Standing Committee, comprising the heads of all the UN humanitarian, human rights, and development agencies, it was submitted to the Commission on Human Rights and later to the General Assembly. The response the Guiding Principles have received has already been presented earlier. It should be emphasized that in our cooperation with the regional organizations, the Organization of African Unity (OAU) was in the lead in organizing with us meetings on the Guiding Principles and called in strong language for their dissemination and application. In view of this experience, the question that poses itself is whether the AU should start from scratch or build on what has so far been achieved. It would seem that focusing on what has been achieved, but relating it to the African context would be the most constructive way to proceed. Indeed, since Africa would not be reinventing the wheel, the process would be less protracted. This, in my view, would mean commissioning a small team of legal experts to look at the Guiding Principles in comparative reference to relevant AU instruments, such as the Charter and the Convention on Human and Peoples Rights, to ensure that the provisions of the Guiding Principles conform with the African normative outlook and meet the needs of the displaced on the Continent. Their report would then

Foreword xxiii be presented to an enlarged team of regionally representative experts to consider and come out with an integrated text. An even broader forum involving pertinent stakeholders would then be organized to finalize the text before presentation to the relevant authorities for formal adoption. A group of experts, which should be regionally representative, would be convened to discuss the text at its various stages, before formal submission to the appropriate AU body for adoption. While there is a clear preference to see this as an African initiative and to use African expertise, it would be wise to utilize collaboration with non-African experts with experience on the international response to the global crisis of internal displacement.

The challenge in perspective It should be reiterated that the displaced populations are a microcosm of the wider communities affected by conflict and that their plight is therefore the plight of the communities to which they are an integral part. Often, the affected countries suffer from acute crises of national identity which creates cleavages within the populations and between the dominant groups and the marginalized sections of the country. The differences involved are not the source of the problems, but rather the implications of the differences in terms of disparities and discrimination. The marginalization of the affected groups becomes tantamount to virtual statelessness. Oftentimes, perspectives on the conflicting identities involve elements of subjectivity and objectivity, with a gap between how people perceive themselves and the objective facts about their respective identities. In Burundi, I asked the Foreign Minister whether one could always tell a Hutu from a Tutsi. The answer was, “Yes, but with a margin of error of 35%.” In the Sudan, between the so-called Arabs and Africans, the margin of error would be roughly the same, if not greater. There is a tendency in Africa to vacillate between, on the one hand, denying ethnicity as a myth that was constructed by the colonial powers in their divide and rule policies and has no basis in objective reality, and, on the other hand, a subjective exaggeration of the differences and their conflictual implications. The crisis of national identity is then reflected in two sets of discrepancies. One is that subjective, strongly felt views of self-identification do not always reflect objective factors of identity. The other is that differences are denied as a justification for imposing the dominant identity on the nation as a homogeneous entity, despite objective facts of diversity. Equally striking are conflicting versions of historical memory of interethnic relations. One version has it that the groups involved have always lived together in peace and harmony, have shared their happy and sad occasions, and have indeed intermarried. The other version is one of perpetual competition, tension, and conflict. In a way, both versions are valid. When communities live as neighbors, they are bound to come into conflict every now and then. But, by the same token, they develop conventional ways of managing their differences and resolving their conflicts when they occur. Whenever conflicts break up again, old wounds get opened and hostile memories surface.

xxiv Foreword The choices for resolving intercommunal conflicts are limited. Assimilation is often not acceptable to groups that are different, self-respecting, and obviously undervalued. The inequities of marginalization and exclusion are equally unacceptable and provide grounds for conflict. Partition threatens the unity and integrity of the nation and could lead to endless fragmentation and disintegration on the continent. The only real viable option is to develop a national framework with decentralized power so that all groups can manage their own affairs through a system of self-administration, while also participating equitably in the national power process. The objective must be to make every individual and group feel a sense of belonging on equal footing and with all the rights and dignity of citizenship. What this means with respect to the challenge of internal displacement is that while the immediate needs of the displaced should be addressed in terms of humanitarian assistance and protection of human rights, the goal must be to find lasting solutions that would allow for their return in safety and with dignity, their reintegration in their areas of origin, or their choice of alternative areas of settlement. But, even when the conflicts that had displaced them end and peace is achieved, there are often still contingencies. Conditions must be created that provide the type of services that the displaced become introduced to in the urban areas into which they often gravitate. These include education, health services, safe water, sanitation, infrastructure, and other social amenities. Indeed, often, the desire to return is more an expression of nostalgia for the homeland than a fully considered option. The critical issue is not only to identify the problem and what needs to be done to remedy it, but also to determine who is to do what about it. In line with the normative principle of sovereignty as responsibility, the first line of action in the apportionment of responsibility must rest with the governments of the affected countries. Since the problems of these countries often spill over the borders to neighboring countries in the form of refugees, the next step in the process of displacement is for the countries of the subregion to assume the second tier of responsibility. Continental organization, primarily represented by the African Union, but involving also members of other entities such as the New Partnership for Africa’s Development (NEPAD), can also play an important role through the peer review mechanism to promote appropriate reforms. Ultimately, however, the promotion of human dignity with all the human rights that it implies must be a global responsibility. To conclude, as a symptom of the structural problems that generate conflict, displacement is a national challenge that ultimately calls for creating an environment in which all citizens feel a sense of belonging on equal footing: an environment in which their human rights and fundamental liberties are respected without discrimination on the grounds of race, national origin, ethnicity, religion, culture, gender, or other grounds; a framework in which the state will respond effectively to their needs for protection and humanitarian assistance; and a system of governance under which, in the end, they are guaranteed lasting solutions to return to their homes, or are resettled and assisted in resuming self-reliant and integrated development as citizens on par with all other citizens, individuals, and groups. Otherwise, gross inequities will always breed tension, conflict, and instability. Francis M. Deng

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Notes 1 Initially, the working definition of the United Nations described internally displaced persons as “persons who have been forced to flee their homes suddenly or unexpectedly in large numbers, as a result of armed conflict, internal strife, systematic violations of human rights or natural or manmade disasters, and who are within the territory of their country.” Analytical Report of the Secretary General on Internally Displaced Persons, U.N. Doc. E/CN4/1992/23 (1992). For a preliminary discussion of definitional issues on the basis of this definition see Report of the Representative of the Secretary General on Internally Displaced Persons, U.N. ESCOR, 51 Sess., Agenda Item 11(d) 116-27, U.N. Doc. E/CN.4/1995/50 (1995). Further points for consideration and the rationale for refining the definition appear in Cohen and Deng, Masses in Flight: The Global Crisis of Internal Displacement. Washington, DC: The Brookings Institution, 1998, p. 10. The present definition in the Guiding Principles on Internal Displacement, Principle 2, is: “a person or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence in particular as a result of, or to avoid the effects of, armed conflict, situations of generalized violence, violations of human rights, or natural or human-made disasters and who have not crossed internationally recognized State borders.” 2 For a detailed overview of the crisis of internal displacement, see Roberta Cohen and Francis M. Deng, Masses in Flight: The Global Crisis of Internal Displacement, and The Forsaken People: Case Studies of the Internally Displaced. Washington, DC: The Brookings Institution, 1998. See also Francis M. Deng, Protecting the Dispossessed: A Challenge for the International Community. Washington, DC: The Brookings Institution, 1993 and David Korn, Exodus Within Borders: An Introduction to the Crisis of Internal Displacement, 1999. Other publications on the global crisis of internal displacement include: Norwegian Refugee Council, Global IDP Projects, Rights Have No Borders: Worldwide Internal Displacement, 1998. See also, Norwegian Refugee Council, Global IDP Project, Internally Displaced Persons: A Global Survey, Second Edition. London: Earthscan Publications Limited, 2002. 3 In 1994, Roberta Cohen and I cofounded and codirected The Brookings Project on Internal Displacement to assist my mandate with research and outreach activities, including collaboration with regional organizations and nongovernmental organizations. When I left Brookings in 2002, to join the City University of New York Graduate Center and then the Johns Hopkins University’s School of Advanced International Studies (SAIS), the project changed names to reflect Brookings’ collaboration with these institutions. In 2004, when Professor Walter Kalin of Bern University in Switzerland succeeded me, the Project became Brookings-Bern Project on Internal Displacement. 4 Work on the Guiding Principles began with the compilation of existing standards in human rights law, humanitarian law, and analogous refugee law that were pertinent to the protection of IDPs. This resulted in Compilation and Analysis: Report of the Representative of the Secretary-General, U.N. Doc. E/CN4/1996 add 2 (1996), submitted pursuant to the Commission on Human Rights resolution 1995/57. See also Report of the Representative of the Secretary-General on Legal Aspects Relating to the Protection Against Arbitrary Displacement, U.N. ESCOR, 54th Sess., Agenda Item 9(d), U.N. Doc. E/CN.4/1998/53/add 1 and Report of the Representative of the Secretary-General on the Guiding Principles on Internal Displacement, U.N. Commission on Human Rights, 54th Sess. Agenda Item 9(d) U.N. Doc. E/CN.4/1998/53. Add 2 (1998). The Guiding Principles were finalized in January, 1998. For a comprehensive review of how the Guiding Principles were developed, see Simon Bagshaw, Developing the Guiding Principles on Internal Displacement: The Role of a Global Public Policy Network [available online at www. globalpublicpolicy.net] (last accessed May 20, 2005). 5 For responses to The Guiding Principles within the United Nations see Strengthening of Coordination of Emergency Humanitarian Assistance of the United Nations,

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7 8

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U.N. Doc. A/53/139-E/67 (1998); Report of the Secretary-General to the Security Council, 409 1st mtg. U.N., U.N. Doc. SC/RES, 1286 (2000); and G.A. Res. 167, U.N., GAOR, 54th Sess. U.N. DOC. A/RES/54/167 2000. For a study of the sources of the law that guided the development of The Guiding Principles, see Walter Kalin, Guiding Principles on Internal Displacement: Annotations. Washington, DC: The American Society of International Law and the Brookings Project on Internal Displacement, 2000. For other publications on The Guiding Principles, see Susan Forbes Martin, The Handbook for Applying the Guiding Principles, the Brookings Project on Internal Displacement and the Office for the Coordination of Humanitarian Affairs (OCHA) 2000 [available online at http:/www.reliefweb.int/ocha ol/pub/IDPprinciples.PDF], and Manual on Field Practice in Internal Displacement, Inter-Agency Standing Committee Policy Paper Series No.1, Office for the Coordination of Humanitarian Affairs (OCHA) [available online at http:/www.reliefweb.int/ocha ol/pubIDPmanual.pdf]. For reports on how NGOs around the world have made use of the Guiding Principles, see The Brookings Institution, The Brookings Project on Internal Displacement, Report on the International Colloquy on the Guiding Principles on Internal Displacement, 2002. See the report of the Secretary-General Kofi Annan, Renewing the United Nations: A Program for Reform, U.N. Doc. A/51/950 (1997); The Inter-Agency Standing Committee policy paper, Protection of Internally Displaced Persons, 1999 [available online at http:/www.idpproject.org.pdf_files/protectionpolicypaper]; and the Inter-Agency Standing Committee, Supplementary Guide to Humanitarian/Resident Coordinators on Their Responsibilities in Relation to Internally Displaced Persons [available online at http:/www. idpproject.org.pdf_files/suppguidance.pdf]. My reports on my activities, including country missions, were presented to the Commission on Human Rights annually and to the General Assembly biannually. Francis M. Deng et al., Sovereignty as Responsibility: Conflict Management in Africa. Washington, DC: The Brookings Institution, 1991 and Francis M. Deng and Terrence Lyons (eds.), African Reckoning: A Quest for Good Governance. Washington, DC, 1998. This concept has since been reinforced and vigorously promoted by The International Commission on Intervention and State Responsibility. See The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty, 2000. See also The Brookings Institution-University of Bern Project on Internal Displacement, Addressing Internal Displacement: A Framework for National Responsibility, 2005; and Edmond J. Keller and Donald Rothchild (eds.), Africa in the New International Order: Rethinking Africa in the New State Sovereignty and Regional Security. Boulder, CO, Lynne Reiner Publishers, 1996. See Crawford Young, The Politics of Cultural Pluralism. University of Wisconsin, Madison Press, 1970; Fredrick Barth (ed.), Ethnic Groups and Boundaries: The Social Organization of Culture Differences. Boston, MA: Little Brown, 1969; and Francis M. Deng and I. William Zartman (eds.), Conflict Resolution in Africa. Washington, DC: The Brookings Institution, 1991. See, in particular, the chapters by Ted Gurr, Donald Rothchild, Otieno Odhiambo, I. William Zartman, Crawford Young, and Stephen John Stedman. See also Joseph V. Montville (ed.), Conflict and Peacemaking in Multiethnic Societies. Washington, DC: Heath and Company, 1991. When IDPs were first counted in 1982, it was estimated that there were 1.2 million internally displaced persons. By 1992, when the issue was considered by the Commission on Human Rights, the number had increased to between 20 and 24 million. With the end of the Cold War, super power rivalry ended and Western governments’ geopolitical advantage in accepting refugees began to wane, which led to the desire to find solutions that would keep potential refugees within their own borders. Today, the number of IDPs in estimated at 24 million in about 50 countries. Norwegian Refugee Council, Global IDP Project, 2004.

Acknowledgments

This book is a collection of papers given at a symposium entitled Security, Reconstruction, and Reconciliation: When the Wars End held at Cornell University from April 23–24, 2004. The conference was sponsored by the Institute for African Development (IAD) in collaboration with Africa Faith and Justice Network (AFJN). The conference focused on examining the challenges that conflicts present to the state, its institutions, development, and the welfare of its people. It was driven by the underlying belief that our understanding of conflicts and their consequences is directly related to our ability to manage, resolve, and prevent them. The symposium participants reflected the symposium’s interdisciplinary focus. It brought together an interdisciplinary group of experts in comparative constitutionalism, conflict resolution, governance, development, gender, and security. The conference would not have been possible without the hard work of Jackie Sayegh, IAD’s Program Coordinator, and Jackie Cervantes, the Assistant Program Coordinator. They handled the logistics of the conference and the book with patience, a dexterity, and unconditional support. The book could not have been written without the help and work of many people. In addition to the participants who contributed their symposium papers to the volume, I would like to thank my research assistants Sonia Gioseffi, Tamika Bent, Nalaamle Amissah, Alexis Boyce, and Joanna Hooste who helped me research, edit, and in various other ways in the preparation of the manuscript for publication. I would also like to thank Thomas Mills from the Cornell Law Library for help with citations.

Acronyms

ACCORD ACS ANC AZAPO CEDAW CSVR DRC ECOMOG ECOWAS ERC ESCOR EU FARC GA HIPC ICC ICGL ICTR IDP IFP KSFOR LTTE LURD MODEL MONUC NPP OAU OCHA OSCE

African Center for the Constructive Resolution of Disputes American Colonization Society African National Congress Azania Peoples Organization Convention on the Elimination of All Forms of Discrimination Against Women Center for the Study of Violence and Reconciliation Democratic Republic of the Congo Economic Community of West African States Cease-Fire Monitoring Group Economic Community for West African States Emergency Relief Coordinator Economic and Social Council Report European Union Revolutionary Forces of Columbia (Fuerzas Armadas Revolucionarias de Colombia) General Assembly Highly Indebted Poor Countries International Criminal Court International Contact Group on Liberia International Criminal Tribunal for Rwanda Internally Displaced Persons Inkanta Freedom Party Kosovo Stabilization Force The Liberation Tigers of Tamil Elam Liberians United for Reconciliation and Democracy Movement for Democracy in Liberia United Nations Organization Mission in Democratic Republic the Congo National Patriotic Party Organization of African Unity Office for the Coordinator of Humanitarian Affairs Organization of Security and Cooperation in Europe

Acronyms PAC PRC PTSD RPF RUF SAIS SFOR SPLA TRC UN UNAIDS UNAMISIL UNCJS UNDP UNHCR UNICEF UNMIK UNOB UNTAC USAID WOMEN

Pan African Congress People Redemption Council Post Traumatic Stress Disorder Rwanda Patriotic Front Revolutionary United Front School of Advanced International Studies Stabilization Force Sudan Peoples Liberation Army Truth and Reconciliation Commission United Nations United Nations AIDS United Nations Mission in Sierra Leone United Nations Criminal Justice Standards for Peace Keeping Police United Nations Development Program United Nations High Commissioner for Refugees United Nations Children’s Fund United Nations Mission in Kosovo United Nations Operations in Burundi United Nations Transitional Authority in Cambodia United States Agency for International Development Women Organized for a Morally Enlightened Nation

xxix

Introduction Muna Ndulo

This volume is an interdisciplinary study of conflict with the overriding focus being an in-depth examination of ways and means to promote reconciliation and reconstruction in postconflict societies. Armed conflicts continue to occur in many parts of the world and have escalated over the last two decades.1 In Africa, over one quarter of the continent’s countries were embroiled in conflict in the late 1990s.2 At the end of 2002, a total of 25 countries were experiencing ongoing or sporadic conflict. Thirty countries are emerging from recent conflicts.3 The United Nations report has observed that today’s armed conflicts are predominantly internal, with regional and subregional repercussions; and the victims of those conflicts are disproportionately civilians. While during the First World War, only 5 percent of all casualties were civilians, during the 1990s civilians accounted for up to 90 percent of casualties.4 The causes of these conflicts comprise a complex, interlocking web of factors that are sometimes steeped in both history and contemporary realities, including economic, social, and political conditions. The conditions of capturing and maintaining political power in many parts of the world is a key source of conflict. Frequently, the candidate who wins a political victory assumes a “winner-take-all” mentality with respect to patronage, wealth, and resources as well as prestige and prerogative of office. A feeling of communal sense of advantage or disadvantage is often closely linked to this phenomenon, which is heightened in many cases by reliance on centralized and highly personalized forms of governance. The stakes for political control become dangerously high in jurisdictions with insufficient accountability of leaders, lack of regime transparency, inadequate checks and balances, nonadherence to the rule of law, absence of peaceful means to change or replace leadership, or lack of respect for human rights. Whoever captures power can dispense the spoils of office to his or her followers. The situation of political control is exacerbated when, as is often the case in Africa, the economic pie to be shared is small and the state is the major source of accumulation. Often political conflict, given the multiethnic character of most African states, leads to a violent politicization of ethnicity. In extreme cases, rival communities believe that they can ensure their survival only through control of the state power and thus conflict becomes inevitable.

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Conflict is intensified as there is usually no countervailing force, given the limited existence of a middle class due to lack of industrialization to blunt the excesses of warlords, or the state itself. The World Bank in a study entitled “Breaking the Conflict Trap: Civil War and Development Policy”5 concluded that the roots of civil strife are more economic than ethnic. According to the report, in a given five-year period, a low income country has a 17.1 percent chance of falling into civil war. That risk drops to 12.3 percent if 2 percent of economic growth is sustained. Economic diversification is also an important factor. If primary-commodity exports (oil particularly) account for 10 percent or less of the GDP, the risk is reduced to 11 percent but rises to 33 percent when such exports exceed 30 percent of the GDP. During the Cold War, external interference in the internal affairs of developing country governments was a familiar feature of superpower rivalry.6 Today, external interests continue to play a large and sometimes decisive role, both in suppressing and in sustaining conflict in the competition for oil, diamonds, timber, and other natural resources.7 A number of other factors are especially important in particular subregions. These factors include the competition for scarce land and water resources in densely populated areas. In oil producing areas, conflict often arises from local complaints that the communities, where the resources are located, do not adequately reap the benefits from the oil exploitation, or do not receive compensation from the environmental degradation and pollution. In yet other situations, conflicts result from tensions between different factions holding opposing visions of the nature of society and the state. For instance, in the Sudan, a clash of vision between the Arab Islamic north and the culturally and religiously more diverse black south threatens the state’s territorial integrity. Increased access to inexpensive and lethal weaponry fuels and perpetuates armed conflict. These weapons are used by state and nonstate actors, irregular forces, private militias, guerillas, warlords, and civilians. Conflicts weaken the authority of the state, breed insecurity, and erode institutions of civil society. They result in mass displacements, use of child soldiers, violence against ethnic/religious groups as well as gender-based and sexual violence. Postconflict societies are characterized by lack of respect for the rule of law, gross human rights violations, impunity, and economic devastation and decay. The end of conflict does not automatically bring peace, security, or an end to violence. Demobilization is typically accompanied by an upsurge in criminality and other forms of violence. There is always a continuing risk that the conflict might resume. A country that has just emerged from conflict runs a 44 percent risk of return to conflict within five years. In such societies, some of the most difficult tasks include articulating a vision of a new society, dealing with past human rights violations, defining the fundamental principles by which the country will be transformed, distribution of power within the country among the various segments of the population, engaging in effective reconstruction, reconciliation, and establishing and securing enduring peace. The manner in which these processes are handled can play an important role in the consolidation of peace. Many of the issues if not handled properly can accentuate fundamental differences and lead to renewed conflict. Reconciliation, for example, if not dealt with properly, may open old wounds or reignite ethnic or other rivalries.

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Women and children constitute the majority of victims and are disproportionately affected in contemporary armed conflict. Where cultures of violence and discrimination against women and girls exist prior to conflict, they will be exacerbated during conflict. If women do not participate in the decision-making structures of a society, they are unlikely to become involved in the decision to end the conflict or the peace process that follows.8 A continuing problem in peace processes is how to mainstream women’s concerns in the postconflict processes. Countries emerging from conflict will almost always need to depend upon the international community to varying degrees for resources (financial, technical, and human) in order to conduct effective reconciliation, institution-building, and reconstruction. Typically, the international community plays its role through the United Nations. International intervention may contribute to the legitimacy of the peace process. On the other hand, the legitimacy of the peace process may be undermined where the international community is perceived as attempting to impose a result. A matter of considerable importance, therefore, is a consideration of the appropriate role for the international community and regional organizations in the resolution of conflicts and reconstruction in postconflict societies. This book brings together an interdisciplinary group of experts to explore issues identified above. The book attempts to draw common lessons learnt; identifies pitfalls to be avoided; and articulates issues and guidelines to be considered in the design of postconflict processes. In this way it attempts to contribute to the determination of the variables that underline success in the approaches adopted to achieve reconciliation and reconstruction in postconflict society. It is organized into 16 chapters. In Chapter 1, William Reno discusses arms trafficking and the local political economy of conflict. He discusses the problem within the current analytical framework of the proliferation of small arms and light weapons. Reno argues that the current debate fails to take into account variations in the correlation between the acquisition of small arms and light weapons and the eruption of widespread violence. Reno notes that there are certain situations where widespread violence has not erupted in the presence of small arms and light weapons. He proposes three explanatory hypotheses and explores several conflict situations involving small arms that demonstrate varying degrees of conflicts. In sum, the issue of arms trafficking cannot be resolved by using social categories or by assuming that legitimacy runs along state-defined boundaries. Rather, it is important to pay attention to legitimate authorities, regardless of whether those authorities are members of formally recognized states or not. In Chapter 2, Obijiofor Aginam considers HIV/AIDS, conflicts, and security in Africa. First, Aginam highlights the increase in multilateral declarations and commitments – the UN Security Council, World Health Organization, G8 Summit, and the African Union – on the security implications of HIV/AIDS and other communicable diseases. The various declarations acknowledged HIV/AIDS and other communicable diseases as a global security threat. Second, Aginam argues that with the development of a new challenge comes the need for new techniques – analytical and policy tools – to battle these challenges. The crisis of HIV/AIDS, he argues, should be explored in the context of the debate

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between the traditional school of security that focuses on external military threat to geopolitical boundaries of a nation-state and the new school that explores security from the perspectives of nonmilitary threats to the nation-state and its citizens. Third, Aginam argues that globalized health threats require a global policy universe and humane global health governance framework, involving a multiplicity of actors – international organizations, private and corporate actors, and civil society – and built on the notion of state and human security as complimentary paradigms. In Chapter 3, Ian Gary discusses transparency and accountability in the use of petroleum revenues as fundamental ingredient for security, reconstruction, and reconciliation in Africa’s petro-states. Gary observes that the oil boom in developing African countries is both a moment of opportunity and peril for countries plagued by wide-scale poverty. According to Gary, this failure is due to a lack of government transparency, accountability, fairness, mismanagement of oil wealth, poor democratic institutions, and administrative capacity. Gary argues that we should look at how revenues are raised, what percentage remains inside the producing country, and how the government utilizes these revenues. He looks at the economic and political problems involved in managing petroleum and suggests that a reformation of Africa’s government and a big push by relevant actors can improve a transformation that will benefit the poor. All actors need to change some of their practices and work together in a more concerted manner to change the incentive structure surrounding the management of Africa’s oil wealth. In Chapter 4, Erin Mooney examines the protection and reintegration of displaced women and children in post-conflict societies. Mooney observes that by stating that displaced women and children are at high risk during conflicts and during periods of settlements and reintegration, the “one-size fits all” solutions overlook their particular needs. She discusses the positive effect of Guiding Principles on Internal Displacement in addressing problems of internal displacement. Mooney notes that problems persist and proposes seven key issues related to the protection and reintegration of displaced women and children in the aftermath of conflict: engagement in the decision-making process, participation in the peace-building process, creation of conditions enabling the safe return or resettlement of the displaced, enactment of particular efforts to protect girls and women from sexual violence and abuse, improving understanding and overcoming the barriers to education, the creation of economically meaningful opportunities, and finally, the security of the right of women to inherit, own, and purchase land and property. In Chapter 5, Meredith Turshen examines the long-term impact of war on women and children with specific reference to Africa. After a brief introduction differentiating the effects of liberation struggles, interstate wars, and civil conflicts, she focuses on civil wars, which are particularly destructive of society. Looking at gender dimensions of conflict, Turshen notes that higher mortality rates for men shifts the burden of death to women and children. The author proposes three levels of analysis to explore the impact civil conflicts have on women and children: the familiar fallout of war, the historical legacies of conflict, and the

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altered political environments in which women in war-torn societies live. These perspectives highlight dramatic demographic changes in size and structure of populations, historic wars as roots of contemporary conflicts, and the long-term consequences that alter women’s lives, from physical health to economic environment. To resolve the collective traumatic effect of conflicts, Turshen advocates engendered treatment that also accounts for prolonged, repeated, and collective trauma. In Chapter 6, Sherrill Whittington examines the position and role of women in peace keeping and peace processes. Whittington first notes that women’s rights, needs, issues, views, and voices are often not equally represented during peace negotiations. Although the Security Council Resolution 1325, Women, Peace, and Security, was intended to prevent the marginalization of women’s concerns, Whittington argues that there is still a need for high-level executive commitment that supports integrating gender equality into all stages of the peace process. She posits that the real value of a resolution lies in its implementation, from the security council chambers to field level personnel, not rhetoric. Whittington identifies gender-based violations that disproportionately affect women as a major problem in conflict and postconflict situations and looks to the terms of Resolution 1325 as a tool to obtain gender equality during repatriation and resettlement, rehabilitation, reintegration, and postconflict reconstruction. Whittington also looks at several countries that have implemented remedial measures. In countries such as Burundi. Democratic Republic of Congo, and other West African countries, partnerships with local women’s organizations ensure their direct involvement in national reconstruction. In Chapter 7, Ilene Cohn examines the intractable problem of child soldiers. Cohn commences by noting that despite a strengthened legal regime governing child rights – the Optional Protocol, domestic legislations, and country-specific tribunals – children still continue to suffer from armed conflict and violence. Despite the Secretary-General’s attempts to have countries comply with their international obligations to stop recruiting child soldiers and using them, there continues to be a huge gap between law and reality. Cohn presents four tendencies that need to be addressed in order to narrow the gap between progress in the law and progress on the ground. First, that there is a tension between human rights impulse to strengthen norms and humanitarian rights impulse to assist waraffected children, which exacerbates the gap. The second advocates more of an analysis of the political, social, economic, and military dynamics of particular conflicts to generate compliance with commitments and obligations. The third suggests that more credible, long-term program evaluations will better implement or guide the demobilization process of child soldiers. The fourth suggests that we focus even greater attention and resources on appropriate reintegration measures that will ensure the former child soldier the chance to function as a member of his or her community and individual accountability for child soldiers who commit egregious crimes as a form of rehabilitative interventions. In Chapter 8, Muna Ndulo examines ways and means of enhancing the participation of women in postconflict elections. First, Ndulo looks at the constitutional and electoral processes and describes elements of the process by which to

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attain a legitimate electoral process, including formulating a suitable legal framework, selecting an election system, delimitating constituencies, ensuring voter participation and campaigning. He then examines factors that prevent the participation of women in the electoral process, such as poverty, male-dominated power structures, disparity between equality in law and practice, lack of education, and gender-role stereotyping. Ndulo looks at legislative measures that can be taken to increase women’s participation in the electoral processes, noting that the problem is at the implementation level and suggesting both legislative and nonlegislative remedies. From a legislative perspective, he suggests the implementation of true democratic structures and the use of quotas – gender-quotas, gender-neutral quotas, or double quotas as affirmative measures in improving women participation in the electoral process. From a nonlegislative perspective, the author suggests measures such as civic education programs, gender-awareness in national legal systems and institutions, media portrayals, and improved female representation in the statutory bodies that administer elections and election officials. He advocates cooperative efforts between government agencies and NGOs in order to increase women’s participation in postconflict elections. In Chapter 9, Mark Kende examines whether truth commissions or prosecution are best suited to deal with past human rights violations in a postconflict society. Kende describes divergent views on the benefits and disadvantages of both approaches by exploring issues of truth-finding, restorative justice, forgiveness, selectivity in granting amnesty and in prosecuting, notions of justice, and speed of resolution. He then looks at the case of Rwanda and describes the advantages and disadvantages of the International Criminal Tribunal for Rwanda (ICTR), noting that despite its success in prosecuting many human rights violators, the process remains slow and ineffective in gaining cooperation from national governments. He then looks at Sierra Leone’s hybrid court, noting that although it is very promising, it has not gotten off to a smooth start. Kende emphasizes the importance of context – societal goals, social geography, the nature of society – as essential to transformational justice. He concludes that neither approach can fully remedy massive human rights violations and suggests that countries would be better served with truth and amnesty and only prosecuting for deterrence rather than retribution. In Chapter 10, Chandra Lekha Sriram examines the question of how to deal with past human rights violations in the context of Sierra Leone. She begins her discussion by looking at what is at stake in transitional justice and suggests that discussions take a look at the needs of each transitional context. These needs include: stability, democratization, and the rule of law; the needs of victims; social and pedagogical effects of trials; and national reconciliation. Sriram looks at the flaws of externalized justice, justice elsewhere, and domestic justice, arguing that externalized justice will be even less likely than domestic justice to achieve all of its putative goals. She looks at the alternative of internationalized tribunals and their limitations in meeting the flaws of internal and external justice. Sriram compares the Special Panel for Serious Crimes in East Timor and the Special Court for Sierra Leone, and argues that the court’s shortcomings are likely to limit successful judicial contribution to postconflict countries.

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In Chapter 11, David Backer examines the question whether truth commissions offer advantages relative to blanket amnesties, in as much as past human rights violations are investigated and exposed and whether victims of violations accept this compromise. If not, what are the implications for political legitimacy, social stability, and democratic consolidation? The chapter is based on research carried out in South Africa. Backer argues that the South African process demonstrates that even the victims who participated in the South African Truth and Reconciliation Commission process perceived a strong sense of injustice. He argues that there are three ways victims could act upon these sentiments. One is to exact retribution, which presents a risk of ongoing cycles of conflict. Another is to become disillusioned by the new political dispensation, thereby disposing victims to antisystem activities. The third is to organize and advocate for further redress: an acceptable exercise of democratic freedoms. In this chapter, Backer evaluates the prevalence of these responses in South Africa. He tests the hypothesis that participation promotes organized advocacy while reducing the inclination toward both vengeance and alienation. In Chapter 12, Byron Tarr examines the challenges of reconstructing Liberia. Tar begins by offering an explanation as to why the Liberian state failed. He argues that it failed because its governance structure originated in and remained faithful to the peculiarities of its founding and the nineteenth-century governance philosophy that underlay its constitution and legal regime. He notes that previous unsuccessful reform efforts were very limited-purpose reforms or sector-specific reforms and advocates long-term commitment to comprehensive governance reform to resolve endemic political, economic, and humanitarian crises. The necessary reforms to be successful must be implemented within the historical and cultural context of Liberia. He advocates a “participatory approach” led by competent and experienced Liberians and friends of Liberia (to catalyze commitment) to reform the constitution and legal regime to specify policy instruments and reduce overlaps to attack dysfunctional governance. He details the benefits of several aspects of the program, its assumptions, methodology, strategy, and program outputs and impact. Tar discusses the role of civil society in the transformation of Liberia. He talks about the Liberia that it seeks to reform as opposed to the Liberia of historic past. It is an oligarchy whose elitist ruling parties disavow interest in recruiting the masses. Tar also outlines the Comprehensive Peace Agreement (CPA), the fourteenth peace agreement accord signed by the warring factions, generic and specific limitations toward emphasizing the necessity of early commitment to comprehensive governance reconstruction, the irreducible requirement for resolving Liberia’s endemic crises. In Chapter 13, Peter Gantz takes a look at the role of civil police in peace keeping operations. First, Gantz identifies a public security and safety gap and suggests that the civil police (CivPol) element of peacekeeping operations may be enhanced with additional constabulary police. Despite the CivPol’s role and importance in the peace-building process, there are numerous problems (its quality and recruiting, quality and training; a time gap; operational difficulties; management and mandate issues; and a lack of accountability) with the UN CivPol system, which result in an inability to establish effective public security in

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postconflict environment. The United Nations and the United States have increased efforts to enhance CivPol so as to prevent the military from having to perform a policing role. One particular UN reform is the Brahimi Report, which calls for numerous system-wide changes, but fails to fully implement them due to UN budgetary problems and member states’ inability to build or enhance their own capacity to conduct rule of law operations. The US Presidential Decision Directive 71 (PDD-71) calls for various reforms, but the political process prohibited its implementation. Notwithstanding this problem, the US assistance to civilian police operations is limited considering its lack of national police capacity. However, the EU’s constabulary police (highly professional and capable police) capacity benefits peace operations as it has existing institutions to promote stability and security in countries in and outside of Europe. This alternative is not without problems, such as maintaining a working distinction between military and police. He argues that a review of the EU constabulary force can benefit peace operations. Gantz explores both the difficulty and benefits of European deployments of constabulary police by looking at the Bosnia-Herzegovina and Kosovo experience. He recommends the establishment of a permanent UN CivPol capacity by creating a UN civilian police reserve force or a permanent standing UN police force. In Chapter 14, Marcel Kitissou examines Africa’s security dilemma. He notes that studying the security dilemma of Africa is difficult because issues that are central at one time may become secondary at another time and vice versa. Kitissou begins by stating that Africa has three traditional roles, which are related to its strategic advantages to other powerful countries. He identifies these as: France’s strategic use of Africa to respond to the triple menace of communism expansion; US complacency with African nationalism and Muslim fundamentalism in and following the period of decolonization and; the US use of Africa as a war strategy. Kitissou also examines the UN peace keeping efforts in Africa. In Chapter 15, Matthew Schroeder looks at the US military assistance to Africa and the challenges it poses. Schroeder notes that the type of military aid provided to African countries through US security assistance programs is very diverse – not limited to combat training and arms sales but extending to material aid, training, and other forms of nonmilitary assistance. He notes that there are tensions and conflicts surrounding the US security assistance programs and a lack of coherent and effective security assistance policies and consistency in the use of security assistance as a diplomatic tool. Schroeder advocates creative policymaking, vigilant watchdog organizations, and rigorous reporting requirements to ensure some degree of harmony among, and the simultaneous advancement of, important foreign policy objectives. In the concluding chapter, Milton Esman offers some thoughts on lessons learnt from conflicts. He summarizes the devastating effects of wars in the past decade and suggests that even when the fighting finally ends, hostilities persist and postconflict agreements may be inherently unstable. From an economic and infrastructural perspective, external assistance is usually necessary to help return to normalcy. Healing psychological wounds is more difficult, especially with regards

Introduction

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to truth and reconciliation where residual distrust and hatred are intense. But, he observes that a peaceful coexistence may eventually heal the psychic wounds among peoples. The book would have achieved its overriding objective if it contributes to the determination of the variables that underline success in the approaches adopted to achieve reconciliation and reconstruction in postconflict societies and identifies ways in which those most affected by war could be empowered.

Notes 1 Report of the Secretary-General on the causes of conflict and the promotion of a durable peace and sustainable development in Africa (A/52/871-S/1998/318) para. 4. 2 Ibid. 3 Ibid. 4 Report of the Expert of the Secretary-General, Ms Gracia Marchel. Impact of armed conflict on children (A/51/3006), para. 24. 5 World Bank. Breaking the Conflict Trap: Civil War and Development Policy. Washington, DC, 2003. 6 Yoweri Museveni. What is Africa’s Problem? 185 (1982). 7 Addendum to the Report of the Panel of Experts on the Illegal Exploitation of Natural Resources and other Forms of Wealth of the Democratic Republic of the Congo, UN Security Council Document S/2001/1072, November 2001, p. 22. 8 Women, Peace and Security, study submitted by the Secretary-General pursuant to Security Council resolution 1325 (2000), p. 2.

Part I

The social, political, and economic dimensions of conflict

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Arms trafficking and the local political economy of conflict William Reno

Introduction An influential United Nations report argues that the proliferation of small arms and light weapons plays a major role in promoting violent conflicts. It shows how groups that previously would have been inclined to settle their differences through negotiations or other nonlethal means now find more options to arm themselves.1 The increasing availability of hardware “demilitarizes war” in the sense of enabling quite small groups, not just state militaries, to organize for combat.2 Thus easily available small arms help to change the organization of conflicts and creates a new role for small-scale military entrepreneurs who may have vested interests in continuing violence. The decentralized nature of their militias in turn disrupts the efforts of more peaceful groups to resolve underlying causes of conflict.3 The proliferation of small arms plays a deeper role in the increasingly predatory and fragmented conduct of contemporary internal wars beyond simply empowering violent entrepreneurs. Easily accessible weapons undermine local social orders as groups acquire arms out of fear that the others will do the same. Neighbors cannot distinguish with certainty the defensive preparation of other groups from apparent preparations to attack. This kind of security dilemma is more severe than those between states. This is because as weapons become cheaper and more readily available, starting up new armed groups that can act as spoilers in conflicts becomes easier. This in turn creates pressures for otherwise peaceful people to arm for self-defence and seek protection from predatory groups that would find little place in a war between big state armies.4 These concerns drive most policy debates that now focus on how to define and enforce global norms to govern the trade in small arms and light weapons to prevent illicit trafficking. Major debates emerge over whether control of illicit transactions is inextricably linked to tighter limits on legal possession, and the degree to which keeping arms out of the hands of nonstate actors requires regulating all civilians’ access to weapons, and not on whether weapons can play a positive political role in conflicts. Most who engage in this debate tend to lump all armed groups in the category of illicit, including them in the same category as the weapons that they use. They contrast such armed groups’ activities to those of existing sovereign states, which are the main interlocutors in international

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regulatory efforts and thus provide the reference point for defining other armed groups as illicit, including those that might enjoy local legitimacy. This uniform application of international norms independent of local opinion carries over into prosecutions for human rights violations, as the Deputy Prosecutor of the UN-backed Special Court in Sierra Leone noted: “I’m afraid you can fight on the side of the angles and nevertheless commit crimes against humanity.”5 While the study of the incentives that small arms generate for individuals provides important insights into how some conflicts intensify and how entrepreneurs of violence emerge, they often ignore substantial factors that shape how armed groups manage relations with local societies. Some recent political economy approaches do take seriously the dynamics of contention between state and nonstate armed groups, however. They identify causes of violence in particular types of politics and in the availability of resources, especially those that are valuable and portable and thus easily looted.6 But neither approach explains why abundant supplies of small arms, along with resources and political contexts commonly associated with violence, leads to serious conflict in some cases but not in others. Some groups with access to small arms in these contexts use them to prey upon local people while others in similar contexts do not. An explanation for this variation needs to take account of the dynamics of individual behavior within the broader context of political economy and social relationships to understand how small arms availability influences the courses of conflicts.

The argument This analysis links changes in the organization of violence and differences in its intensity and fragmentation to the nature of local institutions. Douglass North broadly defines institutions as “rules of the game in a society” that form legitimate authority and therefore are not limited to state bureaucracies.7 They can include customary practices that are not recognized in law, the patronage networks of informal political control, and the structures of clandestine economies. Neither military hardware nor other material resources at hand necessarily determine whether the conduct of conflicts will become widespread and indiscriminate, or focused and disciplined, or even whether it fails to materialize in the midst of all sorts of risk factors usually associated with violence and disorder. This is because communities may create their own structures for providing order and may even use access to small arms in the process of doing so. Focusing on these institutions casts violence and weapons as subordinate to the key question of whether local administrations can maintain their claims to the monopoly of force. When local armed groups choose to do this and are successful at convincing people around them to accept their maintenance of order, this process comes very close to satisfying a crucial element of Weber’s definition of government, regardless of whether that authority gains global recognition of its existence or not.8 A comparison of the different ways that armed groups use small arms and other weapons helps to illustrate the limited utility of identifying these weapons as principal causes that shape the natures of conflicts. This approach also helps

Arms trafficking and political economy of conflict 15 identify some flaws in the global regulations that many groups advocate. It also avoids analyzing only the instances where violent conflict has occurred. Limiting analysis to the worst conflicts masks important counterfactual events in which outcomes do not fit common predictions about the impact of weaponry or other resources on conflicts. This is especially true if weapons are abundant in instances where fighting has not occurred or it suddenly stopped. Individual cases of intense conflict can provide valuable insights about the relation of small arms and violence too. But if policymakers rely only on those cases for evidence, they may design strategies that really respond to that particular set of consequences rather than to the primary causes of armed conflict. Even amidst violent conflict in Bosnia, Somalia, Sierra Leone, Congo, and Chechnya, one finds local communities that share political and social features and that have accumulated large stockpiles of small arms and light weapons, yet some of them manage to limit the emergence of widespread violence. Those communities retain a measure of order while their close neighbors participate in predatory violence. Thus outwardly similar regions such as northern and southern parts of Somalia have very different experiences with violence, even though both societies are very well-armed. Likewise, fighting has been limited in the autonomous republic of Ingushetia, where people share many of the grievances, history, and resources of their Chechen neighbors and where many households maintain private arsenals. Nor did violence spread readily to Dagastan on Chechnya’s eastern border, despite concerted attempts by Chechen fighters and local Dagastani allies to militarize serious social divisions there. Congo’s eastern provinces host many predatory groups seeking diamonds and other loot, while Congo’s most productive diamond-mining region in Kasai manages to get by with much less violence. The surprise about Kosovo and Macedonia was the extent to which armed groups there did not fight through most of the 1990s, despite the central role of armed ethnic Albanian gangs in trafficking illicit weapons. Likewise, young men in some diamond-mining communities in Sierra Leone used guns to protect their communities while those in similar circumstances in other diamond-mining communities joined predatory gangs to loot their own hometowns. Few nonspecialists in North America and Europe pay attention to these places, mostly because they confound expectations of more sustained conflict, and thus fail to appear in conflict data sets. Moreover, the experiences of individual communities are submerged in studies that take states or ethnic units as primary units of analysis. Enterprising strongmen have tried to mobilize armed groups around personal agendas, and have actively sought to polarize communities with violence in both types of cases, though they do not always succeed. A primary concern of policymakers should be why they do or do not succeed, along with the role that regulation of illicit trading in weapons may influence these different outcomes. Considering variations in outcomes casts some doubt on the proposition that the presence of small arms and light weapons is a primary cause of violent conflict, and that its regulation, whether of legal or illicit trade, plays a predictable role in managing these conflicts. People in some societies already manage conflicts, even with small arms present and in the hands of diverse groups. In fact,

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the existence of such cases is compatible with the proposition that possession and even illicit trafficking of weapons can play a role in key political actors’ strategies to control violence. The section “Cases of contrast” provides several brief overviews of key points of variations in patterns and intensities of violence in otherwise similar cases. (This is derived from a more extensive argument that I have developed for a comparative study of conflict.) These comparisons develop two hypotheses that build on this broader definition of institutions and point to the main variables that appear to be responsible for differences in outcomes. First, informal institutions, including local community “clandestine” markets that are responses to increased marginality, may play a role in reducing risks of local social fragmentation that come with weakened state capacities. Terms such as clandestine that are accepted in many analyses of conflicts usually take laws of states and perspectives of global norms as paramount when applying this label. But this can mask the legitimacy that local communities may accord to these activities, especially if they help them to survive in the midst of wider conflicts. If combined with local mediating institutions and social practices that defuse intragroup security dilemmas, these informal institutions may provide new ways for local authorities to provide order that harness elements of the global economy that some scholars identify as causes of disorder. Second, if these new frameworks favor old patronage networks and clandestine economy channels over the interests of elites based in the capital, they limit the impact of interventions of violent entrepreneurs and reduce risks of predatory armed conflict. This is most likely where preconflict governments relied most heavily on patronage networks to assert authority. Those groups that were most marginal to preconflict patronage networks had the most at stake in using local social practices and informal institutions to shelter their activities from predatory elites in the capital. This practice becomes a crucial resource in shaping the capacities and interests of some armed groups to provide their communities with order instead of looting them.

Cases of contrast The regions of former Somalia All regions of former Somalia – all heavily armed – shared multiple risk factors for conflict by the late 1980s. Central state authority collapsed everywhere as armed factions battled one another for the right to form a new government and for loot. Assault rifles reportedly could be bought in the capital in the early 1990s for as low as US$15.9 Political entrepreneurs throughout the country took advantage of the easy access to weapons and recruited displaced young men to consolidate their positions. Prominent figures such as Mohammed Farah Aideed, Ali Mahdi, and Omar Jess headed factions fighting in the south. Northern politicians formed armed factions too. Fighters of Abdirahmaan Ali Tuur, the first interim President of the unilaterally declared northern Republic of Somaliland, looted ports and businesses in his home region in 1992. Another round of

Arms trafficking and political economy of conflict 17 violence broke out in 1994–95 as fighters of Jaama Mahamed Ghalib looted the northern towns of Burao and Hargeisa, reportedly while taking bribes from Aideed in Mogadishu. Seen from a perspective of events in the early 1990s, the north should have experienced continued serious fighting and not the relative peace that prevailed later. By 1990, the dying regime had killed over 50,000 Somalis in the north in organized attacks that instigated internecine fighting by arming rival factional groups.10 In subsequent years, however, it was the south that lacked a central government and continued to suffer from protracted fighting. In 2003, some 40 militias contended for power in the southern two-thirds of the country.11 Continuous international efforts to facilitate negotiations failed to bolster a nominal interim government, which by early 2005 still had not relocated from a Nairobi hotel. That was for good reason: “The city has been tense because clans controlling different parts of the city are loyal to rival groups involved in the Somali national reconciliation process,” UN officials reported.12 Northerners declared their independence (though no other country recognizes it), restored order with a new police force, issued currency, held regular contested elections, and rehabilitated some public services. Their first President, Mohamed Haji Ibrahim Egal, a former Somali government official who headed his own militia over the better part of 40 years, upbraided politicians and warlords in the south for their servility to factional conflict. His administration boasted that their community “applies a version of liberal Islam[,] . . . [has] established a government of law and order[,]” and regulates and taxes orderly trade with other countries.13 Even outside observers who are critical of the Somaliland authorities recognize that institutions of political order such as those related to electoral exercises and policing distinguish this area from the southern region.14 Closer examination of the organization of conflict and the social histories of entrepreneurial politicians and militia leaders reveals major differences between the two regions. Observers noted that southern clan leaders, the primary legitimate local authority in many places, “found themselves attempting to negotiate with young militiamen and bandits from distant clans rather than with ‘peer’ elders.”15 The inability of local authorities to exercise control over fighters – especially in Mogadishu where they drew fighters from impoverished young migrants from the countryside – created numerous security dilemmas for communities. As many scholars would predict, people had to raise their own militias or ally themselves with another militia to protect them from predators, since in the absence of central administration neither formal law nor shared social customs could make these outsiders suffer social consequences for their misuse of violence. Even where local social institutions among pastoralists near the Kenyan border have helped revive local cattle trading in the south, the absence of a central authority has imposed a considerable risk premium on these transactions. Part of the difficulty in organizing large-scale structures to ensure order is due to the intrusion in the late 1980s of pastoralists from outside the region that were allied with the political networks of former President Siad Barre. These operators have been able to call upon fighters from outside the region to compete for business

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and resources.16 Therefore, the south is not bereft of small-scale organization that is capable of reviving some elements of commerce. It is not, however, able to incorporate local social mediators and legitimate authorities to guarantee contracts and reliably adjudicate disputes between communities on a regular basis, which are core elements of a more comprehensive and larger-scale political order. Northern entrepreneurs and authorities, on the other hand, have experienced a greater revival of the stock trade based on local notables who have been more successful in helping to mediate conflicts and organize trade.17 Why is the north different? Local authorities in the north weathered the collapse of the old regime with their authority intact more than among their southern counterparts. This was partly due to unintended consequences of former President Barre’s political strategy in the 1980s. As state revenues declined amidst mismanagement and Barre’s fear of independent bureaucratic initiative grew, he tried to rule through increased reliance on patronage. Unable to provide many resources on his own, Barre built an “official illicit economy” around selective exemptions from trade and currency controls, and permission to loot massive aid inflows, the country’s largest source of income by the mid-1980s. With a few exceptions, local leaders in the north had a harder time accessing these opportunities, and had to survive in a “clandestine illicit economy” that they operated without the President’s consent. This took the form of organizing clandestine transit trade and financial networks to transfer remittances of overseas Somali workers at informal market rates. Though Barre encouraged a few northerners to build their own militias to repress local political groups that he considered politically unreliable, he mostly recruited more violent “outsiders.” These strongmen were outsiders in the sense of being from other geographic zones and in not having deep roots in the informal social structures – including the “unofficial” local clandestine economy – that characterized the incumbent power structure. As a result, when central authority finally collapsed in the early 1990s, most northerners in positions to form militias held authority – formal and informal alike – based on deeds that predated the 1980s Barre-organized predation or to protect themselves against the designs of the old dictator. Their record in the 1980s was one of defensive efforts to preserve their access to resources, including a clandestine trade in small arms. To do this, they had to rely upon the protection of local authorities, especially clan elders. These people protected their transactions in the 1980s when they were forced to the margins of the President’s political network. Back then, these local strongmen could not call upon Mogadishu to guarantee their corrupt transactions. Instead, they had to rely upon clan elders to help organize smuggling operations and illegal remittances from Somalis working abroad. Notions of legality associated with recognized states are not very relevant in this context. Degrees of local legitimacy are a better guide to the consequence of these transactions. In the eyes of local people, local regulation of these transactions resembled something akin to governmental processes by enhancing local economic opportunities while providing some measure of security. This illicit/legitimate dichotomy could extend to transactions involving weapons,

Arms trafficking and political economy of conflict 19 which current international definitions would consider illicit, and have important policy implications, as the section “Implications for policy and strategy” discusses. The shared control over local resources by the late 1980s hindered efforts of other would-be political entrepreneurs to raise armies. When local strongmen like Tuur tried to offer fighters the prospect of loot in return for support, local authorities used their autonomous control over resources and connections to business and smuggling networks outside the country to raise opposing forces in order to protect their communities. This defeat of would-be warlords prevented the influx of outside fighters that plagued the southern regions and gave local youth alternative structures into which to integrate. This meant that when armed, unruly young men appeared in the north amidst generalized chaos and insecurity in the early 1990s, it was hard to recruit them into predatory militias. Some pestered communities as bandits, but one visitor noted “the difficulty of shooting young apprentice-shiftas because their clan and family backgrounds had to be taken into account and the same holds for any person they might kill.”18 This relationship works in reverse too; local armed youth also suffer the consequences of socially unsanctioned uses of violence, since they and their families are more accessible for retaliation. This condition creates a possibility in which the ubiquitous presence of small arms is compatible with the preservation, or, in northern Somalia’s case, the imposition of order. The survival of social constraints on violence and of the ability of legitimate local authorities to enforce the social constraints explains why violent predatory organizations were difficult to form in Somaliland. Northern leaders have evicted or arrested politicians and notables that participate in externally organized conferences, less for fear of a loss of independence as from recognizing that negotiating weight correlates to the success of violent entrepreneurs. Ethiopian diplomats appear to recognize and value the tendency of conferences to sustain conflict and keep Somalia divided, and have thus become primary backers of continued international mediation to ensure that they will not face a united Somalia on their eastern border. The defeat of Tuur’s first strategy to build militias and allow them to loot their own communities sheds further light on the relationship between social control and weapons. The persistence of foreign conflict resolution efforts may be a cause of Tuur’s shift toward a more violent strategy. Once he and other strongmen with ambitions to form a central government for all of Somalia found that no single group could prevail; externally sponsored mediation offered a more attractive route to power. Tuur realized that his only leverage would be to join UN and Egyptian sponsored negotiations. Negotiators saw that since he could use his militia to threaten local order, they needed to include him in a comprehensive agreement. Since outside intervention suggested that his future rewards would come from access to the international community and control of a distant city, he may have calculated that he could safely loot his own community to recruit followers with promises of even more loot once he became part (or head) of a new government. Thus northern leaders prohibit politicians from participating in externally organized conferences on their own account and cite this disruption of local social control as a reason for their action.19

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The north Caucasus regions Chechnya and Ingushetia, two culturally similar and heavily armed north Caucasus regions, yield comparable insights. Both regions were centers of corruption during the Soviet era.20 Chechen authorities in the early 1990s realized that they could use alliances with local and foreign Islamists to assert their independence from old Soviet political networks to which they had belonged. Foreign connections provided them with alternate means of purchasing arms and buying local political support. As a result, a new “official illicit economy” replaced what now had to become a “clandestine illicit economy” built upon old Chechen mafia networks. Many observers blamed this mafia for fuelling violence, and indeed many were violent organizations like other criminal networks in Russia. But those Russian networks differed from the new networks that Chechen politicians were fashioning in that they could not offer this elite from local social structures of vendetta and reciprocities of obligation to pursue their ambitions in a much more violent manner. Meanwhile, their old criminal associates remained bound by these rules and thus faced constraints on the manner in which they exercised violence. New armed groups formed around leaders such as the Jordanian (of Chechen ancestry) Sheikh Mohammad Fatih who recruited fighters to battle Soviets in Afghanistan in the 1980s. Fatih brought others such as the Saudi Afghanistan war veteran Khattab to organize Chechen militias. Financial support from Arab organizations abroad enabled this group to function independently of Chechnya’s informal institutional rules governing violence and freed them from having to bargain with local criminals for a share of their illicit business. In the fall of 1999, they made their own military strikes against Dagestan in conjunction with foreign and local supporters in hopes of sparking an uprising. By that time, the Chechen separatist movement had split into two main factions, with the initiative going to those who had contacts with foreigners and socially autonomous sources of funding that enabled them to recruit unemployed youth to their cause.21 Chechnya shows the important role of the intrusion of outsiders that local social conventions in their uses of violence kept relatively unrestrained. The local political networks involved in Soviet era corruption were so marginal to centers of power in Moscow that they had to seek protection from local power brokers. Some of the local power brokers came to prominence in the early 1990s as Chechen separatists asserted their claims. Their choice of protection, however, played a decisive role in shaping the conduct of the first separatist regime in the 1994–96 war and authorities in the conflict since 1999. A journalist noted that Chechen authorities employed local tough guys that worked elsewhere before going to Chechnya to, in the words of one, “work as a bandit . . . but now I am a bandit for my country.”22 The Yeltsin administration in Moscow gave covert support to many of these strongmen. They broke with the separatist regime in Chechnya to engage in predation in the local underground economy, which gave Chechen separatist leaders little means to control their rank-and-file, especially the

Arms trafficking and political economy of conflict 21 enterprising among them who would behave like predators. The up-and-coming strongmen controlled their own violent followers and did not need a central administration to access economic opportunities.23 This left Chechen leaders with few resources to build a centralized administration on patronage, unlike Afghanistan’s Ahmed Kharzai, who controlled enough resources to build a patrimonial structure to hold together his precarious alliance of local warlords. After 1997, Chechen leader Aslan Maskhadov grasped at the rhetoric of Islamic revival to hold together his administration, which brought with it more outsiders willing to fight, but only on their own terms. The Republic of Ingushetia, which borders Chechnya, demonstrates a peculiar absence of conflict, at least relative to its neighbor. Given the abundances of weapons in all north Caucasian communities and shared social tensions similar to Chechnya’s (author’s field research observations, 2004), conventional approaches that link illicit weapons, especially small arms, with violence would expect much greater turmoil. But in 1998, the President of Ingushetia, General Ruslan Aushev, expelled foreign guests, and closed new mosques and schools associated with Arabs and other foreign Afghan veterans. Since he had a meagre official budget, he had to accept financial assistance from the deeply rooted local criminal networks, the region’s main source of capital, to help local young men set up their own businesses. Aushev also tolerated the customary practice of vendetta, which had reappeared in the last decade of disorder. Many desperate relatives of hostages abducted for ransom bought guns on the illicit market and sought hostages of their own. In many cases, the hostage-takers tried to justify their crimes with the fatwa of an Arab warlord in Chechnya who blessed the abduction of “bad Muslims” to finance the operations of righteous warriors. The real threat of vendetta, as in northern Somalia, made abduction a risky business, especially after Aushev decided to let police operate in conjunction with wronged relatives. Violence spilled into Ingushetia since the replacement of Aushev with Murat Zyazikov in 2002, a former officer in the KGB and a political ally of President Vladimir Putin. Zyazikov’s security forces have cooperated more closely with Russian authorities since the October 2002 hostage crisis in Moscow. This has resulted in more arbitrary abuses of local people, and has drawn more Chechen attacks on Ingushetia’s territory.24 Russian efforts to control the region in the wake of the 2004 Beslan school hostage crisis worsens this situation. The shift in the local organization of violence appears to have disrupted the fragile arrangements that Aushev created in the 1990s, and shows an impact of outside forces on local efforts to build order when large-scale political structures are absent or weak. Sierra Leone Some of Sierra Leone’s authorities also have tapped into locally legitimate networks of social control to manage violence. Revolutionary United Front (RUF) fighters commonly forced captives to commit atrocities against their own communities and families as a way to sever young abductees from local social constraints. In 1994, Dr Alpha Lavalie, a history professor at the University of

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Sierra Leone, organized a home guard militia from the same social stratum of young people in his home community, which was then under attack. While a student in the 1970s and early 1980s, Lavalie studied how Sierra Leone’s President instigated violence in his hometown to keep his opponents divided. The President had encouraged local uprisings against local authorities that he feared opposed his rule. These young men would join paramilitaries that regime favorites from the capital and their local allies organized. This process rewarded young fighters with opportunities to loot resources in their own communities. This included giving the young fighters a (small) share in the “clandestine illicit” diamond-mining activities that the President was replacing with his “official illicit” operations under his personal direction.25 Professor Lavalie’s militia drew resources from the same clandestine economic networks that its opponents tapped, but it did so through mediating legitimate local authorities. Local elders were able to mobilize these young “traditional” fighters in order to drive out attackers to defend clandestine operations that they felt benefited their communities. These youth turned out to be reliable defenders of their homes and (generally) refused entreaties from RUF fighters to join them in looting. This was because initiation ceremonies integrated outsiders that migrated to those communities to engage in illicit mining into community social structures. Local chiefs had few other options but to encourage this practice. Earlier, they had backed a political party that had been turned out of office. The long-serving prewar President suspected their loyalty, and did not give them easy access to his patronage networks based on control of illicit mining and other economic activities. Thus, these chiefs needed to protect “their” migrants to fend off pressure from the President’s allies and to organize their “unofficial” illicit mining, much as northern Somalia’s strongmen needed legitimate community authorities to protect their rackets during President Barre’s rule. In contrast, politicians in areas upriver from Professor Lavalie’s militias enjoyed easier access to the former President’s commercial networks. Former President Stevens had used access to business operations in mining areas that were run out of the capital and benefited from army protection and activities of militias associated with the ruling party to reward his allies. This released local strongmen from having to deal with incumbent community authorities and local ideas about how to exploit diamond resources. Thus, well-armed young men in those areas could be more abusive of local people, a reflection of their bosses’ political position in the relatively centralized segment of the prewar political economy of patronage. This gave local strongmen the option of more freely using gangs of illicit miners against their local opponents and others that they felt threatened their control of resources. Once the war started in 1991, the differences in organizing violence meant that downriver communities continued their defensive consolidation of control, while control fragmented upriver and the decentralized structure of the RUF incorporated the local violence. Elements of Professor Lavalie’s militia continue to occupy diamond-mining areas where they illicitly dig gems. Like their RUF counterparts, they are targets of international sanctions against “blood diamonds,” which both groups sell to

Arms trafficking and political economy of conflict 23 buy guns. Nonetheless, they enjoy greater local legitimacy than former combatants associated with the RUF. This complicates international efforts to promote disarmament and prosecute commanders who used violence during the war, which is part of the policy dimension that the following section considers.

Implications for policy and strategy The earlier examples illustrate the danger of framing conflict and evaluating armed groups by social categories and distinctions rooted in the legal cultures of legitimate states and the western-based international community. For example, the notion that licit and illicit practices occur along relatively static state-defined boundardies may confuse distinctions between legitimate and illegitimate authority. If transactions contribute to the stability and well-being of a community and support respected authorities, then they are legitimate in the eyes of those who participate in them. Externally organized peace negotiations have been especially deficient in this regard, rewarding violent entrepreneurs that use armed young men to control markets and to fight their way to bargaining tables. Meanwhile, Liberians protested the exclusion of groups that they regarded as legitimate authorities from negotiations. Sierra Leone’s media have been outspoken in their criticism of peace negotiations, not only because they dislike RUF fighters, but because they believe that negotiations conducted in this fashion undermines community efforts to entice unemployed young men away from violent and socially destructive behavior. Somaliland’s authorities explicitly identify peace negotiations as a cause of conflict. Armed groups that do not enjoy broad legitimacy and that rely upon outsiders rather than local communities to stay in power play a major role in the use of small arms and light weapons against these communities. Interdiction may reduce the power and attractiveness of these groups, but simultaneously engaging them in the framework of restoring order to the entire state enhances the risk that the state will use weapons against local communities. Thus, peace negotiations can have the opposite impact than what is intended in terms of limiting violence, though this strategy often accompanies arms reduction and demobilization efforts. A deeper problem lies in the inability of international organizations and formal diplomacy to deviate from support for the existing framework of states and incumbent institutional structures to engage more deeply in what may be more legitimate alternative governance structures. Somaliland authorities recognize what this threat poses to order in their own region, and seek to manage this problem by integrating themselves into this framework as a new, separate state. They seek their political destiny in terms of inoculation against neighbors’ threats against their own internal order, a strategy that the international community has yet to accept. For them and for many other authorities in the midst of war that successfully uses control over violence to support their claims to legitimacy, recourse to old colonial boundaries in order to claim a separate sovereign status is not an option. They remain caught in an international system that differentiates between the rights of sovereign associations and nonsovereign ones, with

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relatively little regard to the legitimacy of the former in societies. United Nations and other efforts to regulate small arms occur within this framework too, defining success in terms of a cessation of fighting within existing borders and a return to a political status quo ante in broad institutional political terms. While acknowledging the problem of odious governance, this framework does not leave room for internationally recognized notions of legitimate rebellion in the manner of the Cold War-era African Liberation Committee of the Organization of African States, which aided and influenced anticolonial and anti-apartheid insurgencies. The above analysis also means that illicit commerce, which is a central target of those that regulate small arms as well as current “blood diamonds” campaigns, under certain conditions may contribute to stabilizing communities and reducing the risk of armed conflict. This does not mean that one should reject regulation wholesale. Rather, it may be advantageous to be less concerned with a legal or cultural definition of particular transactions as licit or illicit. Instead, the international community should identify the relationship of particular transactions to legitimate authorities, regardless of whether or not such authorities are members of formally recognized states. In most cases, regulating the trafficking of arms and resources related to their purchase may be a very important component of conflict resolution. Instead, the problem lies in the nature of its application. An alternate approach focused on making choices about legitimate authorities and reinforcing them would be difficult. Improvised policies of Somaliland authorities may survive and find a place in a globally recognized new state. The policies of Professor Lavalie’s militia in Sierra Leone and Ingush President Aushev’s legalization of vendetta may seem dubious from a western perspective, but local desperation to win peace and shape their own political destinies drives both policies. But where local or regional concerns for order become a basis for coinciding interests with western governments, as in Afghanistan in 2001, or to the extent that the current US administration learns from Iraq, novel structures and new ideas about social control of violence are quickly learned and applied, which results in discarding straightforward approaches to regulate the flow of illicit arms.

Notes 1 2 3 4 5 6 7 8 9 10 11 12 13

UN 2001; UN Group of Experts 1999. Ploughshares 2001. de Figuerdo and Weingast 1999: 261–303. Kasfir 2004: 60–64; Mueller 2004: 8–23. BBC 2004. Pugh and Cooper 2004; Karen and Sherman 2003. Douglass North 1990: 4. Weber 1970: 78, 1978: 904–908. ICRC 1999: 18. Africa Watch 1990: 218. UNSC 2003: paras. 23, 25. UNSC 2004: para. 27. Republic of Somaliland 1996: 16.

Arms trafficking and political economy of conflict 25 14 15 16 17 18 19 20 21 22 23 24 25

International Crisis Group 2003. Menkhaus 2000: 191. Little 2003: 39–44. Hoffman 2002. Prunier 1991: 108. Ministry of Foreign Affairs 2004. Grossman 1977; Frisby 1998. Lansky 2004. Lieven 1998: 81–82. Derluguian 2003. Human Rights Watch 2003: 6–7. Lavalie 1983.

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And we should broaden debate to accept that health is an underlying determinant of development, security, and global stability. We must consider the impact of armed conflict and, perhaps more importantly, the silent march of diseases that devastate populations over time. . . . The explosion of conflict immediately brings to light the links between health and security – soldiers and civilians wounded and displaced by war. The medium-term impact is felt when people are uprooted and forced to live in camps with little sanitation or health services. (Gro Harlem Brundtland,1 Former Director-General, World Health Organization) Throughout history, the deadly comrades of war and disease have accounted for a major proportion of human suffering and death. The generals of previous centuries knew that disease was a bigger enemy than the army they would face across the battlefield. (Gro Harlem Brundtland,2 Former Director-General, World Health Organization)

Introduction In both times of peace and war, history is replete with deadly battles fought between humanity and disease. Throughout recorded history, the menace of disease, especially during conflicts, has left indelible fingerprints in the complex interaction between humanity and microbial forces. The decimation of a significant percentage of humanity by infectious diseases has led to the collapse of states and empires during conflicts. Thucydides wrote that the plague that devastated Athens during the Peloponnesian War originated from Ethiopia and spread through Egypt and Libya before it arrived in Athens in 430 BC because of troop movement.3 In the sixteenth and seventeenth centuries, small pox, measles, influenza, and other exotic diseases decimated Native American populations in their contacts with European forces during the imperial battle to conquer the Americas.4 These exotic diseases led to the collapse of the Aztec and Incan empires.5 During the American Revolution in 1776, smallpox prevented the American forces from capturing Canada, then known as British North America.6 It has been argued that, throughout history, soldiers have rarely won wars;

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microbes have.7 The epidemics get the blame for defeat; the generals get the credit for victory.8 The emergence of HIV/AIDS, its prevalence in Africa, and the complex interaction between the epidemic and conflicts have reinforced both the human and state security dimensions of disease. In a world order founded on the statecentric Westphalian system, threats to the geopolitical territories have dominated the global security discourses within and outside the United Nations system. This chapter explores the need to broaden security discourses to link HIV/AIDS, the state, and human security in mutually reinforcing ways. Rather than repeat the statistics of HIV/AIDS prevalence in individual states that now litter the reports of leading multilateral institutions,9 this chapter focuses on the epidemic’s implications in conflicts as a microcosm of the overall strategic implications of AIDS to human and state security in the post-Cold War Westphalian international system.

The normative relevance of “soft-law” declarations of commitment on health-related aspects of global security The end of the 1990s witnessed a surge in multilateral declarations of commitments by multilateral institutions within and outside the United Nations system – the UN Security Council, World Health Organization, the G8 Summit, and the African Union – on the security implications of HIV/AIDS and other communicable diseases. Blazing the trail on July 17, 2000, the UN Security Council, bearing in mind its primary responsibility to maintain international peace and security, passed Resolution 1308. The Security Council expressed a concern at the potentially damaging impact of HIV/AIDS on the health of international peacekeeping personnel.10 Although the Resolution focused narrowly on United Nations peacekeeping operations, it was remarkably innovative as the Security Council’s first express endorsement of a health issue as a global security threat. In a special session of the UN Security Council dealing with the HIV/AIDS pandemic on January 10, 2000, the then US Vice President Al Gore stated, For the nations of sub-Saharan Africa, AIDS is not just a humanitarian crisis. It is a security crisis – because it threatens not just individual citizens, but the very institutions that define and defend the character of a society. This disease weakens work forces and snaps economic strength. AIDS strikes at teachers and denies education to their students. It strikes at the military, and subverts the forces of order and peacekeeping. AIDS is one of the most devastating threats ever to confront the world community. The United Nations was created to stop wars. Now we must wage and win a great and peaceful war of our time – the war against AIDS.11 In July 2000, the G8 Summit in Okinawa, Japan pledged a global fund on HIV/AIDS, tuberculosis, and malaria. The fund will sustain political engagement

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and financial support in countries where the morbidity and mortality of these diseases are the highest as well as commit new partners to the battle against microbes. In April 2001, at the Organization of African Unity Summit on HIV/AIDS, Tuberculosis and other Related Infectious Diseases, held in Abuja, Nigeria, UN SecretaryGeneral Kofi Annan called for the establishment of a global fund on HIV/AIDS and health.12 Annan identified five broad objectives in the global battle against HIV/AIDS and other related infectious diseases. These objectives include, among others, prevention to reverse the spread of the virus in order to safeguard present and future generations. The Summit led to the Abuja Declaration and Plan of Action, which categorized infectious diseases as global security threats, and called on the international donor community to complement Africa’s resource mobilization efforts to fight the scourge of infectious diseases in Africa.13 In May 2001, the World Health Assembly (the highest policy-making organ of the World Health Organization) passed Resolution WHA54.14, Global Health Security: Epidemic Alert and Response. Resolution WHA54.14 recalled that communicable diseases are major burdens in human mortality and morbidity, and noted the speed at which globalization of trade and the movement of people, animals, goods, and food products takes place. The World Health Assembly recognized that an upsurge in cases of infectious diseases in any given country is a potential concern for the international community. Resolution WHA54.14 urged the member states to participate actively in verifying and validating surveillance data concerning health emergencies of international concern. Further, the Resolution requested that the World Health Organization Director-General devise relevant international tools, and provide technical support to member states for developing and strengthening preparedness and response activities against risks that biological agents pose.14 The global security threat of infectious diseases received its most visible multilateral imprimatur at the UN General Assembly Special Session in New York, June 2001. In a declaration of commitment on HIV/AIDS, Global Crisis-Global Action, the General Assembly categorized the devastating scale and impact of the global HIV/AIDS epidemic as a “global emergency”; one that constitutes a formidable challenge to human life, dignity, and the full enjoyment of human rights.15 The General Assembly noted that leadership by governments in combating HIV/AIDS is essential, and that the full and active participation of civil society, the business community, and the private sector at national, regional, and global levels should complement government efforts. The General Assembly observed that conflicts and disasters contribute to the spread of HIV/AIDS. It urged countries to begin implementing national strategies that incorporate HIV/AIDS awareness, prevention, care, and treatment elements into programs that respond to emergencies. These strategies should recognize the populations that are subjected to armed conflicts, humanitarian crisis, and natural disasters, including refugees and internally displaced persons – particularly women and children have an increased risk of HIV exposure.

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The emergence of multilateral declarations of commitments on health-related aspects of global security indicates new challenges to our collective well-being. The international community needs new techniques to battle these new challenges. If infectious pathogens constitute new challenges to global security, then the international community needs new analytical and policy tools to understand these linkages. Notwithstanding the linkages of disease and global security in the emerging multilateral declarations of commitment, pessimism, rather than optimism, remains the dominant characterization of the normative trajectories of these soft-law declarations. In a study that normatively assesses the effectiveness of the UN Security Council Resolution on HIV/AIDS and peacekeeping, Bratt, echoing the traditional school of thought on security, observed, Declaring AIDS to be a threat to international peace and security trivializes the concept of security. It also paves the way for using military apparatus – like peacekeepers – to rectify the problem. . . . In addition, stressing the security aspects of AIDS will obscure the more important health and development aspects. . . . Defense departments and military personnel may be convinced that deployment to an AIDS-infected region does constitute an additional risk to their troops, but they remain skeptical that AIDS is actually a significant security risk.16 It is in the context of the debate between the traditional school of security, which focuses on external military threat to a state’s geopolitical boundaries (state security), and the new school, which explores security from the perspectives of nonmilitary threats to the nation-state and its citizens (human security), that the international community will explore the HIV/AIDS crises in African conflicts.17

HIV/AIDS, security, and conflicts in Africa: analysis of the crises and the crises of analysis The superpower rivalry between the United States and former USSR dominated international relations and international law in the United Nation’s first 45 years (1945–90). Bipolarity drove the threat of nuclear cataclysm and led to a narrow conception of security based on military threats to territorial boundaries. After World War II, international relations, foreign policy and security studies often blended together. What they had in common was their primary focus on the Cold War between the USA and the USSR. Most scholars in the field of security studies were concerned with Soviet-American relations and, more importantly, the prevention of nuclear war. The preoccupation was understandable given that most of the world had split between the two superpower camps, with some states vacillating between the two. The bipolar nature of the international system provided a restricted basis for building the field of security studies, particularly as it pertained to the developing world.18

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In the 1980s, security discourses started shifting gradually from military to other threats: economic, health, environmental, and political. Buzan, although one of the pioneer scholars to challenge the obsession of international security with military threats, nonetheless subjected the “individual” to the “system” and the “state” in his delineation of three levels of security.19 The expansion of security discourse accelerated in the 1990s, mainly because of the collapse of the Soviet Union. Major conflicts were no longer between but within states.20 Security no longer presumes a principal concentration on challenges to a state from outside its borders, defense no longer presumes that military force is either the first or the most appropriate instrument. Many scholars now construe environmental degradation, illicit drugs, epidemic diseases, and terrorism as part of the global security agenda.21 Expanding the notion of security, the United Nations Development Program (UNDP) popularized the notion of human security in 1994 by recognizing the emergence of new security threats: safety from chronic threats such as hunger, disease, and repression.22 Based on four essential characteristics – universalism, interdependence, early prevention, and people centeredness – the UNDP identified categories that may threaten human security. These include economic security, community security, food security, health security, environmental security, and political security.23 Although the concept of human security is hotly contested,24 contemporary efforts to articulate its normative and policy parameters have always included communicable diseases, especially the HIV/AIDS pandemic. Influenced by the UNDP report, the Commission on Global Governance stated, Global security must be broadened from its traditional focus on the security of states to include the security of people and the planet. . . . The security of people recognizes that global security extends beyond the protection of borders, ruling elites, and exclusive state interests to include the protection of the people.25 The Commission on Human Security, in its recently released report, Human Security Now, defined human security as the protection of “the vital core of all human lives in ways that enhance human freedoms and human fulfillment.”26 In its broadest sense, the Commission noted that human security embraces far more than the absence of violent conflict. It encompasses human rights, good governance, and access to education and healthcare, and it ensures that each individual has opportunities and choices to fulfill his potential.27 One of the Commission’s core policy conclusions focuses on the three key areas of health challenges for human security: global infectious disease, poverty-related threats, and violence and crisis.28 HIV/AIDS neatly fits into these three categories because it is a global pandemic; it is poverty-related, at least in the African context, and the violent conflicts and civil wars that are marked by rape of women by combatants, breakdown of health infrastructure, and sexual relations between peacekeepers/combatants and commercial sex workers exacerbate the

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pandemic in complex ways. The Commission on Human Security rightly observed, HIV/AIDS will soon become the greatest health catastrophe in human history – exacting a death toll greater than two world wars in the 20th century, the influenza epidemic of 1918 or the Black Death of the 14th century. . . . The connection between infectious diseases and human security has been forcefully validated by recent developments – the HIV/AIDS epidemic, the accelerating spread of contagious diseases, the looming threat of bio-terrorism, epidemics that weaken already fragile states.29 Discussing the report of the Commission on Human Security, Ogata and Cels noted, “[T]he spread of deadly infectious diseases, massive forced population movements, human rights violations, famine and chronic conditions of deprivation threaten human security and, in turn, state security.”30 Although human security is primarily people-centered and not state-centered, it complements state security in four essential respects: its concern is the individual and the community rather than the state; menaces to people’s security include threats and conditions that have not always been classified as threats to state security; the range of factors is expanded beyond the state alone; and human security includes not just protecting people, but empowering people to fend for themselves.31 The complementary nature of human and state security makes HIV/AIDS less recondite in African security discourses in two clear ways. First, the disease strikes soldiers and civilians in war situations because of the breakdown of infrastructure, the indiscriminate deployment of rape as a weapon of war by combatants, and the attraction of commercial sex workers to areas where international peacekeepers are deployed. Second, it weakens the capacity of national armed forces, assuming that we adopt the traditional notion of security, to perform their national duties to protect the state’s geopolitical territories, and their ability to contribute to international peacekeeping obligations. The Joint United Nations Program on HIV/AIDS (UNAIDS) estimates that many African military forces have infection rates that are as much as five times that of the civilian population.32 [T]hese higher prevalence rates result from a variety of factors: Soldiers, for example, are of a sexually active age; they are highly mobile and away from home for long periods of time; they often valorize violent and risky behavior; they have greater opportunities for casual sexual relations; and they may seek to relieve themselves from the stress of combat through sexual activity.33 Ostergard similarly observed, “war-torn regions promote an indiscriminate sexual culture among soldiers. Military presence attracts sex trade workers, which promotes the spread of the virus to soldiers who may return home to their families.”34

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Nigeria’s role in the Economic Community of West African States (ECOWAS) intervention in the Liberian and Sierra Leonean civil wars is a case in point. Many Nigerian soldiers that were part of the intervention force tested HIV positive on their return from Liberia and Sierra Leone. Although people intensely debate the exact time of the infection – whether before or after the dispatch to Liberia and Sierra Leone35 – the links between HIV/AIDS and conflict remain very strong.36 A conspicuous feature of the link between HIV/AIDS and conflict is the deployment of rape as a weapon of war. Soldiers raped an estimated 200,000–500,000 women during the conflict between the Hutu and Tutsi in Rwanda.37 Soldiers have also deployed rape indiscriminately in conflicts in Liberia, Mozambique, Angola, and Sierra Leone. Although the accuracy of the data that point to the high prevalence of HIV/AIDS in African military forces is questionable, Nigeria and South Africa, the regional powers in western and southern Africa respectively, are in danger of a diminished military role in their regions because of the high prevalence of HIV/AIDS in their armed forces.38 The high prevalence of HIV/AIDS in the armed forces of African states, if unchecked, could lead to a massive state collapse in most countries with already very high infection rates. As the Commission on Human Security observed, HIV/AIDS is a global emergency. In an era of globalization, we must strike the necessary balance between individual, state, and international responsibilities for health and health security. Responsibility for health security is shifting from the national level downwards to individuals, communities, and civil society organizations – and upwards to international institutions and networks.39 A formidable group of scholars considers this global health governance.

Africa within a global health policy universe: AIDS and security in the evolving global governance architecture Global health threats require a global policy universe and a humane global health governance framework involving multiple actors – international organizations, private and corporate entities, and civil society. There are two reasons why global security in the twenty-first century needs a governance framework built on state and human security as complimentary paradigms. First, the collapse of the Cold War, which had crippled most international organizations like the United Nations from 1945 to the fall of the Soviet Union. Second, globalization is transforming geopolitical boundaries in dynamic ways. Economic globalization carries with it the globalization of health risks and threats. New global interdependence issues such as pollution, currency crises, HIV/AIDS, and the drug trade have profoundly changed the tasks and goals of foreign policy officials.40 Diverse perspectives must holistically explore global governance of the HIV/AIDS pandemic: from developmental, health, human, and state security dimensions. Albeit the traditional security community continues to be averse to broadening the security agenda to include HIV/AIDS and other nonmilitary

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threats, the complementary nature of human and state security, as the Commission on Human Security argues, provides one way to explore security in the twenty-first century. Of what essence would it be to continue to be wedded to the narrow conception of security as military threat when African militaries are unable to perform their traditional function of protecting the state from external attack because of the high prevalence of HIV/AIDS in the armed forces? Categorizing HIV/AIDS as a threat to international peace and security could catalyze humane global governance interventions with indelible fingerprints of genuine allegiance to humanity. Given the security implications of HIV/AIDS in Africa, the continent needs effective local, national, regional, and global strategies to stem the tide of the epidemic. In the local and national arenas, African governments must devise the best ways to develop effective policies in conformity with the recommendations of the General Assembly’s Special Session on HIV/AIDS and the Security Council Resolution on HIV/AIDS and peacekeeping. While the efforts of some African states toward voluntary and confidential HIV/AIDS testing of soldiers before dispatching soldiers are commendable, training manuals should strive toward the highest ethical standards in the field.41 These manuals must have a strong international human rights and criminal components that criminalize reprehensible conduct. States, for instance, must never tolerate rape as an instrument of war; it is not merely a crime against the victim, but a crime against humanity punishable under international law. The security implications of HIV/AIDS should not impede progress on the developmental and public health dimensions of HIV/AIDS. Regional and global initiatives on access to antiretroviral drugs and generic versions of essential medicines, which UNAIDS and the World Health Organization have already undertaken, must continue. Civil society organizations like MSF (Doctors without Borders) and Oxfam must continue with the high-level momentum of their activism. The most important task is to reconstruct the global health order to be receptive of emerging transnational health initiatives in the African context. As Held and McGrew remind us, cosmopolitan social democracy postulates that [p]olitical communities can no longer be considered . . . as simply “discrete worlds” or as self-enclosed political spaces; they are enmeshed in complex structures of overlapping forces, relations and networks. . . . The locus of political power can no longer be assumed to be simply national governments – effective power is shared and bartered by diverse forces and agencies at national, regional and international levels.42 Reconstructing world order based on cosmopolitan social democracy revolves around respect for international law, greater transparency, accountability, and democracy in global governance as well as a more equitable distribution of the world’s resources and human security; the protection and reinvention of community at diverse levels; the regulation of the global economy through the public management of global financial and trade flows; the provision of global

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public goods; and the engagement of leading stakeholders in corporate governance.43 The pertinent question is whether emerging global health accords like the Global Fund to Fight AIDS, Tuberculosis and Malaria are cosmopolitan enough to catalyze a change in the sovereign mindset of poor and wealthy states. The future of global security must build on complementary state and human security as the Commission on Global Governance (1995) and the Commission on Human Security (2003) observed.44 The soft-law declarations of relevant global actors like the World Health Organization, the Security Council, General Assembly, and the G8 Summit on health-related threats to global security must now catalyze hard-power actions and interventions from state and nonstate actors in the governance of AIDS in the world. African states must take the lead by integrating HIV/AIDS into the emerging governance mechanisms of the African Union, the New Partnership for Africa’s Development, and the regional economic groups. The Commission on Macroeconomics and Health correctly observed, “the AIDS pandemic represents a unique challenge of unprecedented urgency and intensity. This single epidemic can undermine Africa’s development over the next generation.”45 Africa has become an increasingly marginalized player in global economics and politics. The industrialized world’s response to Africa’s AIDS crisis brings into question the extent to which AIDS and other emerging diseases – even if formally acknowledged to be a security threat – rank as an absolute priority in national security agendas.46 As the United States and most European powers continue to be disinterested in peacekeeping in African conflicts, the crisis in the Darfur region of Sudan and other future conflicts will be placed on the shoulders of the African Union. The conundrum remains – how can African states discharge this onerous burden vis-à-vis the perceived or actual marginalization of the continent in the global governance of HIV/AIDS? Problems such as illicit drug trade, pollution, and global ecological changes place in dire peril not only the state, but also subnational units and transnational and regional areas. These problems are not amenable either to military intervention or to unilateral action. If a cooperative and constructive undertaking does not address them, they may lead to traditional forms of military violence, thereby threatening, in a classic sense, the state, its governance structure, and its society.47 The security dimensions of HIV/AIDS in African conflicts fit neatly within this urgent paradigm shift in twenty-first century security discourses.

Notes 1 “Global Health and International Security,” Global Governance 9 (No.4), 417 (2003). 2 “Bioterrorism and Military Health Risks” (Unpublished), speech delivered at the G20 Health Ministers Forum, World Economic Forum, Davos, Switzerland, January 25, 2003 (on file with the author). 3 Thucydides, History of The Peloponnesian War (R. Warner, trans.). Penguin Books, 1954. 4 A.W. Crosby, The Columbian Exchange: The Biological and Cultural Consequences Of 1492. Greenwood Press, 1972; Sheldon Watts, Epidemics and History: Disease, Power and Imperialism. Yale University Press, 1997.

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5 Crosby, The Columbian Exchange; W.H. McNeill, Plagues and Peoples. New York: Doubleday, 1976. 6 A. Price-Smith, The Health of Nations: Infectious Disease, Environmental Change and their Effects on National Security and Development. Cambridge, MA: MIT Press, 2002, p. 12. 7 H. Zinsser, Rats, Lice and History. London: George Routledge, 1937. 8 C. Coker, War and Disease (Unpublished), Senior Fellow’s Report, “Disease and Security” Conference, 21st Century Trust, Varenna, Lake Como, Italy, April 23–May 1, 2004 (On file with the author). See also Stefan Elbe, Strategic Implications of HIV/Aids, Adelphi Paper 357. New York: Oxford University Press, 2003 at p. 13 (stating that “American microbiologist Hans Zinsser advanced the provocative thesis that soldiers have only rarely won wars; rather they mop up after a barrage of epidemics. And typhus, with its brothers and sisters – plague, cholera, typhoid, dysentery – has decided more campaigns than Caesar, Hannibal, Napoleon, an all the inspector generals of history. The epidemics get the blame for defeat, the generals the credit for victory.”). 9 On the statistics of HIV/AIDS prevalence in Africa, see the successive Aids Epidemic Update, and The Report on the Global Hiv/Aids Epidemic published by Joint United Nations Program on HIV/AIDS (UNAIDS). 10 United Nations Security Council, S/RES/1308 (2000), July 17, 2000. 11 Quoted in A. Price-Smith, The Health Of Nations, pp. 123–124. 12 Speech by Kofi Annan to the African Summit on HIV/AIDS, Tuberculosis and other Related Infectious Diseases, Abuja, Nigeria, April 24–27, 2001 [available online at http://www.un.org/News/Press/docs/2001/SGSM7779R1.doc.htm] (last visited May 10, 2001). 13 Abuja Declaration on HIV/AIDS, Tuberculosis and other Related Infectious Diseases, OAU/SPS/ABUJA/3, made pursuant to the African Summit on HIV/AIDS, Tuberculosis and other Related Infectious Diseases, April 24–27, 2001. 14 Resolution WHA54.14, Fifty-Fourth World Health Assembly, Geneva, May 21, 2001. 15 Global Crisis-Global Action, Declaration of Commitment on HIV/AIDS, adopted by the United Nations General Assembly Special Session, New York, June 25–27, 2001; also [available online at http://www.un.org/ga/aids/coverage/FinalDeclaration HIVAIDS.html] (last visited July 4, 2001). 16 Duane Bratt, “Blue Condoms: The Use of International Peacekeepers in the Fight Against AIDS,” International Peacekeeping 9 (No.3), pp. 67, 83 (2002). 17 I juxtapose “state security” with “human security” here not to suggest that they are standard clear-cut paradigms in the discipline of either international law or international relations, but as a guide to understand the differences between the traditional school and the emerging school of security thought. 18 Robert L. Ostergard, Jr, “Politics in the Hot Zone: AIDS and National Security in Africa,” Third World Quarterly 23 (No.2), 333 (2002). 19 People, B. Buzan, State and Fear: The National Security Problem in International Relations. Brighton: Wheatsheaf Books, 1983. 20 K. Holsti, The State, War and the State of War. Cambridge University Press, 1996. 21 David B. Dewitt, “Introduction: The New Global Order and the Challenges of International Security,” in David Dewitt et al. (eds.), Building a New Global Order: Emerging Trends in International Security. Toronto: Oxford University Press, 1993, p. 2. 22 United Nations Development Program (UNDP), Human Development Report 1994: New Dimensions Of Human Security. New York: Oxford University Press, 1994. 23 Ibid., pp. 24–25. See also the 2001 International Crisis Group Report, HIV/AIDS as a Security Issue. Washington, DC/Brussels, 2001 (categorizing HIV/AIDS as a personal security issue, economic security issue, communal security issue, national security issue, and international security issue); and the chapters in Lincoln Chen et al. (eds.), Global Health Challenges For Human Security. Cambridge, MA: Harvard University, 2003. 24 For a discussion of human security, see Commission on Human Security, Human Security Now: Protecting And Empowering People. New York: Commission on Human Security, 2003,

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Obijiofor Aginam United Nations Development Program, Human Development Report 1994: New Dimensions of Human Security. New York: Oxford University Press, 1994; Fen Osler Hampson, Madness in the Multitude: Human Security and World Disorder. Oxford University Press, 2001; R. McRae and D. Hubert (eds.), Human Security and the New Diplomacy: Protecting People, Promoting Peace. Montreal: McGill-Queen’s University Press, 2001; B. Ramcharan, Human Rights and Human Security. The Hague: Martinus Nijhoff, 2002; Lloyd Axworthy, “Human Security and Global Governance: Putting People First,” Global Governance 7, 19–23 (2001). For critique of human security, see R. Paris, “Human Security: Paradigm Shift or Hot Air,” International Security 26, 67 (2001). On health and human/state security, see A. Price-Smith, The Health Of Nations; Jennifer Brower and Peter Chalk, The Global Threat of New and Reemerging Infectious Diseases: Reconciling U.S. National Security and Public Health Policy. Santa Monica, CA: RAND, 2003. Our Global Neighborhood: The Report Of The Commission On Global Governance. Oxford University Press, 1995, pp. 78, 81. Human Security Now: Protecting And Empowering People. New York: Commission on Human Security, 2003, p. 4. Ibid. Ibid. Ibid. S. Ogata and J. Cels, “Human Security: Protecting and Empowering People,” Global Governance 9, 273 (2003). Human Security Now, p. 4. UNAIDS, AIDS and the Military, May 1998. See generally Stefan Elbe, “HIV/AIDS and the Changing Landscape of War in Africa,” International Security 27, 159 (Fall 2002). Ibid., at p. 163. See also Virginia van der Vilet, The Politics of Aids. London: Bowerdean, 1996 (“Wars and anarchy create ideal conditions for the transmission of HIV. Soldiers and civilians, many moving without partners or families for extended periods, live outside of conventional morality, many resort to satisfy their needs. War brutalizes human relationships . . . and brings sexual violence in its wake.”); Duane Bratt, Blue Condoms. (“[M]ilitary personnel are a high-risk group when it comes to STDs. . . . Soldiers joke about the ‘500 K’ rule which means that when you are over 500 km from home, sex with someone other than your wife or girlfriend is acceptable.”) Ibid., p. 342. Duane Bratt, Blue Condoms, at p. 75. (“In the case of ECOMOG, Sierra Leone argues that it was Nigerian peacekeepers who brought HIV/AIDS to their country. Nigeria, not surprisingly, argues that their military was not highly infected until it went to Sierra Leone.”) UNAIDS, Aids and the Military, May 1998 (highlighting the military’s professional ethos of risk-taking, which extends to the sexual arena and may involve unprotected sex. Military and peacekeeping personnel spend lengthy periods away from home and their camps attract local sex workers because they are perceived as having more money than local populations). Elbe, HIV/AIDS and the Changing Landscape of War in Africa, at p. 168. The US National Intelligence Council, The Global Infectious Disease Threat and Its Implications for he United States, January 2000 has the following prevalence rates of HIV/AIDS in selected African armed forces: Angola 40–60 percent, CongoBrazzaville 10–25 percent, Cote d’Ivoire 10–20 percent, Democratic Republic of Congo 40–60 percent, Eritrea 10 percent, Nigeria 10–20 percent, and Tanzania 15–30 percent. Data from South African intelligence sources is as follows: Angola 50 percent, Botswana 33 percent, Democratic Republic of Congo 50 percent, Lesotho 40 percent, Malawi 50 percent, Namibia 16 percent, South Africa 15–20 percent, Swaziland 48 percent, Zambia 60 percent, and Zimbabwe 55 percent cited in Lindy Heinecken, “Living in Terror: The Looming Security Threat to Southern Africa,” African Security Review 10 (No.4), 7–17(2001).

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39 Ibid., p. 108. 40 James Rosenau, Along the Domestic-Foreign Frontier: Exploring Governance in a Turbulent World. Cambridge University Press, 1997, p. 5. 41 See, for instance, Nigeria’s recent policy on HIV/AIDS and the Armed Forces, Armed Forces Hiv/Aids Control Guidelines (Issued Under the Authority of the Hon. Minister of Defense, October 2003); Sylvia Adebayo et al., Knowledge, Attitudes, and Sexual Behaviour Among the Nigerian Military Concerning HIV/AIDS and STDs, Armed Forces Program on AIDS Control/Policy Project, Nigeria, 2002. 42 D. Held and A. McGrew, Globalization/Anti-globalization. Cambridge: Polity Press, 2002, p. 123. 43 Ibid., at p. 131. 44 For an improved understanding of the linkage between health and human security in the global context, see Lincoln Chen et al., Global Health Challenges for Human Security. Cambridge, MA: Harvard University, 2003. 45 World Health Organization, Macroeconomics and Health: Investing in Health for Economic Development, Report of the Commission on Macroeconomics and Health. Geneva: World Health Organization, 2001 p. 1. 46 David L. Heymann, “Evolving Infectious Disease Threats to National and Global Security,” in Lincoln Chen et al. (eds.), Global Health Challenges For Human Security. Cambridge, MA: Harvard University, 2003, pp. 104, 111. See also Nicholas Eberstadt, “The Future of AIDS,” Foreign Affairs 81 (No.6), 22 at 23 (November/December 2002) (stating that the sub-Saharan African states are not well-positioned to influence events much beyond their own borders under any circumstances, good or ill – and the cruel consequence is that the world pays them little attention). 47 Dewitt, “Introduction: The New Global Order,” p. 5.

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Transparency and accountability in the use of petroleum revenues A fundamental ingredient for security, reconstruction, and reconciliation in Africa’s booming petro-states Ian Gary

Introduction Last October, the first oil tanker left the waters off Kribi, Cameroon, its belly filled with 950,000 barrels of crude oil and the hopes of millions of Chadians to whom the oil belongs. With this shipment, Chad joins the growing ranks of African countries exporting “black gold.” More than US$120 million in oil revenues will flow into Chad this year. But who will these new riches benefit? Will President Idriss Deby, who came to power in a 1990 military coup and has stayed in power through dubious elections, keep his promises to use the money wisely? Decades of conflict have left Chad as one of the poorest countries in the world – will oil revenues do anything to foster security, reconstruction, and reconciliation? Similar questions and scenarios are playing out across Africa. Sub-Saharan Africa is in the midst of an oil boom as foreign energy companies pour billions of dollars into the region for exploring and producing petroleum. African governments, in turn, are receiving billions of dollars in revenue from this boom. Oil production on the African continent is set to double by the end of the decade and the United States will soon be importing 30 percent of its petroleum from the region, making this new oil supply an issue of “national security.” Over US$50 billion, the largest investment in African history, will be spent on African oil fields by the end of the decade. The oil industry views the Gulf of Guinea region, which covers west and central Africa, as the world’s premier “hotspot,” soon to become the leading deepwater offshore oil production center. Almost every month an industry conference in Houston, London, Luanda, or another African oil capital extols the opportunities to be found in this “new El Dorado.” Dramatic improvements in exploration and production technology, especially in offshore and deepwater drilling (5,000–10,000 feet), have opened up vast acreage off the African coast. For the United States and other consumer countries, Africa is an important source of oil. With this growing importance comes growing attention from policymakers. The US National Energy Plan highlights African oil as an important alternative to Middle East oil, and military planners are looking at ways to protect

Transparency in petroleum revenues 39 these energy sources – the Wall Street Journal recently reported Defense Department plans to deploy troops to Nigeria, and perhaps to other African states. In recent presentations at the American Enterprise Institute and the Center for Strategic and International Studies in Washington, General Wald, deputy commander, US European Command, has emphasized the need to develop coast guards and a forward US military presence to “combat terrorism” and protect oil production centers in Africa. This new African oil boom – centered on the oil-rich Atlantic waters of the Gulf of Guinea, from Nigeria to Angola – is a moment of great opportunity and great peril for countries beset by wide-scale poverty. On one hand, revenues available for poverty reduction are huge; Catholic Relief Services conservatively estimates in its recent report, Bottom of the Barrel: Africa’s Oil Boom and the Poor, that sub-Saharan African governments will receive over US$200 billion in oil revenues in the next decade.1 On the other hand, the dramatic development failures that have characterized most other oil dependent countries warn that petrodollars have not helped developing countries reduce poverty and conflict; in most cases, they have actually exacerbated poverty and conflict. How can Africa’s new oil boom be different from past development failures associated with petroleum? What policy changes should be implemented, both domestically and internationally, to promote the efficient management and fair allocation of oil revenues in a manner that benefits the poor? These questions are most important for Africa’s oil exporters, but they are also vital for neighboring countries and the global community. US well-being, in part, depends on whether Africa’s oil exporters become regional engines of stability, democracy, growth, and job creation, or whether they will be regional vortexes of destabilization, decline, and war – generating the human and environmental disasters characteristic of failed states. Presently, Africa’s oil revenues are inserted into governments that lack transparency, accountability, and fairness. Mismanagement of oil wealth causes simmering resentment that sometimes boils over into protest, coup attempts, and outright conflict. Poor management of oil revenues is a major factor in the extremely limited reconstruction and reconciliation efforts in countries such as Angola, Congo-Brazzaville, or Chad. Transparent use of oil wealth will remain a key question in any postconflict dispensation. Struggles over oil wealth threaten to tear Nigeria apart. Wealth sharing in Sudan has been a key sticking point in negotiations between the Sudanese Peoples Liberation Movement and the government. Without improving their democratic institutions and administrative capacity, it is unlikely that African oil exporters will be able to use petrodollars to fuel poverty reduction; instead, oil monies are more likely to make matters worse for the poor. A first step toward the goal of improving conditions is to build transparency. Oil is a natural resource that all Africans own. Nevertheless, many aspects of the African oil industry are concealed or shrouded in mystery; and governments often treat oil as state secrets. Thus, it is difficult, if not impossible, to track how much money oil generates, or how governments spend these revenues. Transparency

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depends on multinational oil companies publishing what they pay, and governments revealing what they spend.

Oil, poverty, and conflict As the African oil boom draws oil industry and US policy attention, the promise that oil will boost the African standard of living has echoed repeatedly throughout the Gulf of Guinea, raising popular expectations to sometimes-soaring heights. As Ed Royce, the Chairman of the Subcommittee on Africa of the US House of Representatives says, “African energy is critical to African development. It provides a revenue stream . . . to break the cycle of poverty that plagues the continent.”2 In West Africa, one can palpably feel the hopes of people watching companies build new pipelines through their communities or seeing the impressive installation of offshore platforms. They believe that oil will bring jobs, food, schools, healthcare, agricultural support, and housing. “We were told by the company that we would have a new school, with books, and electricity and water,” a Cameroon village chief reported.3 Oil rich, dirt poor The lived experience of oil-exporting countries over the past several decades, though, tells a story which differs radically from the promise of petroleum.4 When taken as a group, all “rich” less-developed countries dependent on oil exports have seen the living standards of their populations drop – and drop dramatically. For most countries, including Algeria, Angola, Congo, Ecuador, Gabon, Iran, Iraq, Kuwait, Libya, Peru, Qatar, Saudi Arabia, and Trinidad Tobago, the development failure has been severe, plunging real per capita incomes back to the levels of the 1970s and 1980s.5 For a few countries, most notably Nigeria and Venezuela, the failure to develop has been catastrophic; in these cases, real per capita income has plummeted to levels not seen before 1960. In Nigeria, which has received more than US$340 billion in oil revenues, more than 70 percent of its population lives on less than a dollar a day, 43 percent lack sanitation and clean water, and infant mortality is among the highest in the world.6 Even more worrisome, the gap between the expectations that oil riches create and the reality they produce is a dangerous formula for disorder and war. Countries that depend upon oil exports, over time, are among the most economically troubled, the most authoritarian, and the most conflict-ridden states in the world today. Poor development outcomes are not inevitable Such grim development results are not inevitable. Resource booms can be beneficial. Norway (a relative newcomer on the oil scene) has used the benefits from North Sea petroleum to earn the highest place on the United Nations Development Program’s list of best development performers.7 Thus, the country

Transparency in petroleum revenues 41 where people live best is an oil exporter. This means that the underlying development problems around petroleum are not inherent in the resource itself – oil is merely a thick, viscous black substance. What matters for determining whether the poor will benefit over the long run from oil exploitation is how revenues are raised, what percentage remains inside the producing country, and how the government utilizes these revenues. Whether countries succeed in “sowing their petroleum,” that is, turning oil revenues into long-term benefits for their people, ultimately depends on the quality of public policy. Simply stated, given the right incentives for making good policy choices, petroleum revenues can be “black gold” rather than “the excrement of the devil,” as Juan Pablo Alfonzo, the founder of the Organization of Petroleum Exporting Countries, so poignantly warned.8 Why managing petroleum is not an easy task Successfully managing any mineral-based economy is especially difficult, but petroleum may be the hardest resource to utilize well. Countries dependent on oil exports seem particularly susceptible to policy failure. One must factor this into the set of unique security, reconstruction, and reconciliation challenges that Africa’s oil exporters face. Concentration of power and resources The difficulty in successfully managing petroleum lies in the interaction between economic and political power. Because the petroleum industry is more capitalintensive than any other economic activity and involves very extensive knowledge, skills, and technology, only the biggest players, either multinationals or states, are able to exploit this resource. At the same time, because profit margins are so huge, the oil rents generally overwhelm all other revenue sources. Thus, oil-led development has a strong tendency to concentrate both production and revenue patterns, and this often occurs in countries where economic and political power is already very concentrated. In effect, only large and powerful global and state actors can get into the oil game. Only those who control political power can grant the opportunity to make money from oil, and only those who receive this opportunity can provide the revenues to keep regimes in power. (CongoBrazzaville during the 1990s is a good example of this dynamic.) Angola, for example, ranked the third worst out of 102 countries that Transparency International surveyed in 2002. The US State Department said, “The country’s wealth continued to be concentrated in the hands of a small elite who often used government positions for massive personal enrichment, and corruption continued to be practiced at all levels. . . .”9 This creates a partnership of mutual interest (though often fraught with tensions). This does not occur to the same extent in more diffuse wealth-generating activities based on, say, fertile soil or fisheries, where the barriers to entry are far lower, the actors are more numerous, and the benefits are more dispersed.

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The prevalence of rent-seeking The result is what economists call a “vicious” development cycle based on rent-seeking. Rent-seeking is widespread behavior aimed at capturing petrodollars through unproductive and even corrupt means. In oil-exporting countries, all actors (whether public or private, domestic or foreign) have overwhelming incentives to seek links with the state in order to make money; governments, in turn, reward their supporters by funneling petrodollars, tariff protections, contracts, or subsidies their way. In the end, productive economic activity is actually penalized, growth is hindered, and economies become distorted. Parties can sustain political power only as long as oil revenues flow. The absence of counter-pressures Several factors compound the difficulty of managing oil revenues. Most important is that most developing countries lack the type of political institutions necessary to counteract rent-seeking. Democratically accountable executives, efficient civil services and tax authorities, independent legal systems, active and informed civil societies, and open and transparent policy-making processes are simply not in place. Furthermore, because profits are so huge in oil, a growing reliance on petrodollars can quickly disrupt and replace even healthy pre-existing economic activities. Perverse incentives from the international policy environment Finally, the external policy environment rewards overdependence on petroleum, overly centralized power, and even rent-seeking – merely by pursuing business as usual. Oil companies, for example, may not make transparent deals with governments, and some pay secret bonuses that civil society cannot trace. This makes it difficult to assess their contracts, know what revenues actually accrue to governments, and judge whether the proportion accruing to countries is fair. It also makes it very difficult to hold governments accountable for their revenue management. Home governments, acting in perceived national security and economic interests, have formed strong alliances with authoritarian rulers who happen to sit on top oil deposits and have winked at their records of human rights violations. At the same time, they have failed to insist that multinational oil companies operate with the same standards abroad as the governments hold the companies to at home. Finally, international financial institutions also support oil’s perverse development cycle by routinely encouraging development strategies based on the “comparative advantage” of petroleum, thereby helping to lock countries into a perverse pattern. At the same time, they support lending to deeply indebted oil exporters, along with private commercial banks, even when it is clear that debt only supports unproductive activities or papers over rent-seeking behaviors.

Transparency in petroleum revenues 43 Such practices prolong the ability of governments to mismanage their oil resources and help defer critical but painful development decisions necessary to bring about change. When business lacks transparency, governments are accountable to none, economies are weak, administrative capacity is lacking, and participation is absent or wanting – yet investments and lending continue to pour in without restrictions – rent-seeking and corruption results. Over time, the government squanders earnings, extraction depletes a precious asset, and widespread poverty remains. The “resource curse,” or how oil dependence produces decline10 Negative development outcomes associated with petroleum and other minerals is known as the “resource curse.”11 Essentially, this refers to the inverse association between growth and natural resource abundance, especially among minerals and oil. Resource-poor (without petroleum) countries grew four times more rapidly than resource rich (with petroleum) countries from 1970–9312 – despite the fact that they had half the savings. The greater a country’s dependence on oil and mineral resources, the worse its growth performance,13 a finding that economists in the World Bank and International Monetary Fund (IMF) have confirmed.14 Under the current policy environment, oil dependence hurts development in eight ways. Oil booms raise expectations and increase appetites for spending. The promise of oil wealth dramatically expands the horizons of governments in oil-exporting countries. A boom mentality not only affects the way that governments behave, creating grandiose plans and ideas, but it also shapes how people respond. Work ethics are undermined, and productivity sinks. Governments dramatically increase public spending based on unrealistic revenue projections. In all OPEC countries, windfalls increased both public spending and the appetite for transfers by a factor that was a greater proportion than the size of the boom itself.15 This meant that spending quickly surpassed revenues. Nonetheless, different interests and groups continued to demand large shares of national income when petrodollars became scarce. Booms decrease the quality of public spending and encourage rent-seeking. The concentration of fiscal resources from an oil boom fosters excessive and imprudent investment, and it leads to the maldistribution of resources, a decline in productivity, and massive corruption. Grandiose “white elephant” projects, characterized by enormous corruption in awarding import quotas, industrial licenses, trade franchises, low-cost credits, and access to foreign exchange, become the normal way of doing business. Examples are abound: a mountaintop resort in Venezuela, the largest airport in Saudi Arabia, a man-made river in Libya, the Trans-Railway in Gabon, and a new capital city, Abuja, in Nigeria. Transparency International’s World Corruption Index ranks oil-exporting countries as among the lowest, and considers them especially corrupt.16 In Gabon, a small elite

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connected to the government indulged in lavish spending and a cosmopolitan lifestyle. The country once garnered the title of “world’s largest per capita importer of champagne.”17 Even in countries where a nominal amount of oil revenues are budgeted for health, education, and other important poverty reduction sectors, the quality of spending means that it often has little impact on improving indicators in these sectors. Gabon is a case in point. The country’s relatively high per capita income masks large inequalities, and some social indicators are comparable to those of lower-income African countries.18 In 2001, the World Bank noted that “pockets of extreme poverty are growing in urban areas,” and that more than half the population in the three main cities lack access to electricity or running water.19 Declining productivity associated with the presence of “easy money” has hurt social services. A 1997 World Bank report noted that there “is a striking imbalance between the mediocre outcomes in health and education and the relatively high level of public spending for these sectors. The health sector presents a demographic and epidemiological profile typical of a poor country. Public health indicators are only average for sub-Saharan Africa.”20 Gabon spends more per pupil than most African countries, but the outcomes do not reflect this. The World Bank notes, in the “absence of a sectoral strategy and efficient budget procedures, budget allocations are simply renewed each year without rigor and control.”21 The volatility of oil prices hinders growth, distribution, and poverty alleviation. The volatility of oil prices makes planning extremely difficult, and it hampers exchange rate unification and trade liberalization – all of which have a detrimental effect on growth. In OPEC, oil price volatility exerts a strong influence on government finances and the patterns of national balance of payments, which subsequently means that performance deviates from planned targets by as much as 30 percent. Furthermore, scholars have shown that volatility is bad for investment, income distribution, educational attainment, and poverty alleviation.22 And because oil price volatility has been getting worse, especially since the 1990s, countries can expect even greater detrimental effects on economic performance. Booms encourage the loss of fiscal control and inflation, further hampering growth, equity, and poverty alleviation. In the context of pressures to overspend, corruption, poor quality spending, and uncertain revenues, the loss of control over public spending accompanies oil booms. Because there is no transparency in managing oil revenues, this creates parallel budgets. As a result, price stability and budgetary discipline suffers. Thus, even as oil money is pouring in, deficits and double-digit inflation characterize government accounts. Almost all OPEC members incurred budgetary deficits year after year, with Algeria topping the list, followed by Iran, Indonesia, Nigeria, Saudi Arabia, Ecuador, Libya, and Qatar. Even the capital surplus Persian Gulf countries eventually began to run serious budget deficits. Foreign debt grows faster in oil-exporting countries, mortgaging the future. In most oilexporting countries, external debt, which was negligible (except for Mexico) before the 1973 oil boom, has grown rapidly. As pressure on spending rises,

Transparency in petroleum revenues 45 governments borrow more, even mortgaging future oil payments to banks. Astonishingly, pushed by rent-seeking and the loss of fiscal control, oil countries have borrowed faster and more than non-oil exporting less-developed countries, despite benefiting from petrodollars. This borrowing is both demand and supply driven. Governments seek to borrow to cover shortfalls in expected petroleum revenues, but bankers also especially favor lending to oil exporters because petroleum backs their loans. Congo-Brazzaville, Angola, Nigeria, and Cameroon all have huge debts, while being enriched by oil wealth. Cameroon has even qualified for the World Bank’s Highly Indebted Poor Country program for debt relief. Dutch Disease adversely affects non-oil productive activities, like manufacturing and agriculture. The “Dutch Disease” occurs when oil windfalls push up the real exchange rate of a country’s currency, which tends to render most other exports noncompetitive. At the same time, persistent Dutch Disease provokes a rapid, even distorted growth of services, transportation, and construction, while simultaneously discouraging some industrialization and agriculture.23 The exploitation of petroleum sets off economic dynamics that adversely affect agricultural exports – a labor-intensive activity that is particularly important to the poor – in particular.24 The languishing of the agriculture and manufacturing sectors of oil countries not only makes them more dependent on petroleum, thereby exacerbating other problems of dependency, but it can also lead to a permanent loss of competitiveness.25 Gabon exhibits the classic symptoms of Dutch Disease. There is practically no local food production, which (contrary to that of neighboring Cameroon) has always been deficient, but oil dependence has virtually ended.26 Only about 1 percent of total land area is under cultivation so that, according to the Africa Research Bulletin, “Gabon depends entirely on imports for its food, consumer goods and equipment . . . the tomatoes are South African and the potatoes from France.”27 Despite employing an estimated half of the workforce, the agricultural sector’s contribution to the gross domestic product is only 7 percent.28 Meanwhile, the oil sector cannot make up the shortfall. Because oil is an enclave and highly capital-intensive activity, it provides little employment and relatively few linkages with the rest of the economy.29 Petrodollars replace more stable and sustainable revenue streams, exacerbating the problems of development, transparency, and accountability. Over time, oil revenues decrease reliance on non-oil taxes, and can actually replace prior tax systems. This frees oil-exporting governments from citizen demands like fiscal transparency and accountability that arise when people pay taxes directly to the government. Thus, petrodollars actually sever the link between people and their government that is the essence of popular control. Reconciling the government with the people is all that more difficult in petro-states. The oil/poverty/conflict syndrome The story gets worse – more than any other group of countries, oil and other mineral exporters demonstrate the perverse linkages between skewed economic

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performance, poverty, injustice, and conflict. Countries dependent on oil and other mineral wealth are far more likely to have civil wars than their resourcepoor counterparts, and war disproportionately harms the poor.30 The gap between expectations and the dismal economic performance of oilexporting countries is politically explosive. Because oil governments funnel petrodollars to their own friends, family, military and political supporters, social class, and ethnic or religious groups,31 their populations see foreigners and favorites getting rich, but their own lot does not change. In the context of apparent oil riches, it may even get worse. Over time, this is not a formula for stability. This pattern of spending has kept President El Hadj Omar Bongo (formerly Albert) in power in Gabon since 1968. Ruling the country as a one-party state since the early 1970s based on a policy of ethnic inclusion through his Parti Démocratique du Gabon, the decline in oil revenues forced him to resort to a measure of political opening in the 1990s, which, in turn, led to reconfiguring presidential rule. But there has not been a substantial reframing of internal politics, which President Bongo still dominates.32 The oil in Gabon, though, is starting to run out. Thus Gabon, once the regional role model of a successful “oil emirate,” is now likely to become the poster child for the harsh reality of life after the oil boom. While high oil prices give the president some room to mask the looming economic and financial crisis due to falling oil production, economic problems are severe.33 Gabon has never been able to broaden its productive base, and has not implemented a strategy for a post-oil economy. A highly urbanized population used to consumer luxuries, imported food, and profligate government spending will now have to make harsh and unpopular economic adjustments, including restraining government spending. As those inside the patronage circle, as well as those left out from oil riches in the past, understand that there will be no future benefits, this will put Gabon’s much vaunted “stability” to the test. Militarizing oil countries. As petrodollars fail to keep pace with demands, oil-based governments often increasingly rely on repression to keep themselves in power. Not surprisingly, oil dependence is closely associated with militarization. As a group, oil exporters spend much more money and a greater percentage of their revenues on their military and security forces than nonmineral dependent countries.34 The extent of militarization is stunning. From 1984 to 1994, for example, OPEC members’ share of annual military expenditures as a percentage of total central government expenditures was three times as much as developed countries, and 2 to 10 times that of non-oil developing countries. From the perspective of poverty alleviation, the sheer waste of this military spending is staggering. Petrodollar support for authoritarian rule. Not surprisingly, given this pattern of spending, oil rents have tended to impede democratization and have sustained a long line of authoritarian rulers35 – from the Shah of Iran to Nigeria’s Abacha to the House of Saud to Saddam Hussein. These regimes prohibit the types of organizations that provide a voice for the poor, create an informed civil society, and permit their people to influence the management and allocation of oil wealth.

Transparency in petroleum revenues 47 Furthermore, oil dependence tends to impede democratization, and it may even erode democratic rule where it previously existed, as the dramatic case of Venezuela demonstrates. This is especially unfortunate because democracy, when combined with merit-based civil services, reduces the corruption and mismanagement oftentimes associated with oil dependence.36 Oil and civil war. Fights over oil revenues may increase the level of preexisting conflict, and oil may become the rationale for starting wars.37 This is especially true as economies move into decline. Petroleum revenues are also a central mechanism for prolonging violent conflict, and are rarely a catalyst for resolution.38 Think, for example, of Sudan, Angola, Congo-Brazzaville, and Nigeria. Recent events have shown more reminders of oil’s destabilizing effects. These include the 2003 coup in São Tomé and Principe, coup plots in Equatorial Guinea and Nigeria, and the continued violent conflict in the Niger Delta. Maritime boundary disputes and the scramble for more oil The desire to capture more oil revenues has also sparked off a round of sometimes amicable and sometimes acrimonious discussions concerning never-defined or illdefined maritime borders across the region. Reminiscent of the Berlin Conference that drew up Africa’s colonial boundaries, licensing rounds, joint development agreements, and international disputes at the World Court are rapidly carving up Africa’s offshore oil fields.39 Joint development agreements exist between Senegal and Guinea Bissau; Angola and Congo-Brazzaville; Nigeria and Equatorial Guinea; Nigeria and São Tomé. Negotiations involving states and their oil company backers are done in secret, and disputes over lucrative oil acreage are likely to lead to tensions if not outright conflict in the coming years. The following examples highlight the tensions involved in this scramble for state ownership of offshore oil fields. ●

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São Tomé/Nigeria. São Tomé’s new president, Fradique de Menezes, sacked his cabinet in October 2002 after a fall out over a Joint Development Zone agreement signed under the previous president. The agreement had highly favorable terms for Nigeria and a Nigerian owned company, Chrome Energy. A planned licensing round was delayed until late 2003 as São Tomé renegotiated the Joint Development Zone with Nigeria. Exxon Mobil, ConocoPhillips, and others have been eyeing the fields, which have potential reserves of 4 billion barrels. The dispute has caused tension between the two countries, with São Tomé looking to the United States for protection.40 Cameroon/Nigeria. In late 2002, Cameroon won a long-running case at the World Court in The Hague concerning control over the potentially oil-rich Bakassi Peninsula. Both sides told the United Nations and others that they would accept the verdict, but tensions have continued. Equatorial Guinea/Gabon. Ownership of acreage near the island of Annobon, which belongs to Equatorial Guinea, is unresolved. An accord has been

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The responsibility for change Like oil exporters in other regions, long-time African oil producers such as Nigeria, Angola, Congo-Brazzaville, Cameroon, and Gabon have been largely unable to convert their oil wealth into broad-based poverty reduction. Nor have these countries been able to diversify their economies or prepare for a post-oil future. To the contrary, petroleum has become a magnet for conflict and, in some cases, civil war. New oil producers, such as Equatorial Guinea, appear to be repeating some of the mistakes of their more experienced neighbors. ●

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In Nigeria, over US$350 billion has accrued to governments in the past 30 years, but the majority of the population lives on less than a dollar a day. In Angola, even though the war is over, more than 2 million internally displaced people depend entirely on humanitarian assistance. The United Nations, in its 2003 appeal for Angola, has asked for 327 million Euros (US$384 million) for humanitarian and development operations, warning that the situation could worsen if it does not secure funding.42 The reality, though, is that the Angolan government, awash in oil revenues, could probably pay for the UN appeal in about a month – except that very little is known about the true amount of Angola’s revenue from oil, how it is spent, or even where it is. In Equatorial Guinea, sudden oil wealth has served to reinforce authoritarian rule. Direct flights now connect Malabo, once a classic “tropical backwater,” with Houston and European capitals. President Teodoro Obiang Nguema won a new term in elections last year with 97.1 percent of the vote. He told a campaign rally, “Like the Scriptures say when the Pharaoh of Egypt had a dream of lean cows and fat cows, we have passed the time of lean cows that represent hunger, and we are now in the time of fat cows which is prosperity.” Unfortunately, there are too few fat cows in the country of 500,000. Earlier this year, the Los Angeles Times reported that over US$300 million in oil earnings was deposited in a private bank in Washington, DC and that the account is under the sole control of President Nguema.43

Fixing the problem – promoting transparency and accountability in Africa’s oil exporters The primary responsibility for managing Africa’s oil wealth in a transparent, fair, and accountable way lies with Africa’s governments. Building democratic states capable of focusing on reducing poverty is one of the key challenges facing Africa in the twenty-first century.

Transparency in petroleum revenues 49 Africa’s governments, though, are only one part of a web of interests and relationships in the African oil boom. Other key interests are foreign oil companies, international financial institutions like the World Bank and the International Monetary Fund, Export Credit Agencies, and northern governments. The World Bank Group has played a catalytic role by supporting changes in legal frameworks and investment environments, financing projects, and providing risk insurance. Export credit agencies have provided additional finance in risky environments, with few strings attached. The need for a “big push” Many international actors are now making tentative steps to address the “paradox of plenty” problem that Africa’s oil boom has generated. They have begun to recognize that improving the distribution of benefits from oil production is not only an ethical mandate, but also an essential ingredient toward a more stable and sustainable world. The IMF and World Bank are taking steps to increase transparency in Africa’s oil economies. Corporate actors are increasing their philanthropic programs and engaging in dialogue with civil society on ways to increase transparency in the sector. And northern governments, such as the United States and United Kingdom, are beginning to acknowledge the need to address the perils of oil-led development. These actions, while welcome, are not enough. Because developing oil fields and building pipelines happens faster than the construction of efficient states and good governance, only a sustained, coordinated, and coherent international effort – a “big push” to change the policy environment – by the relevant actors can improve the prospects for transforming Africa’s oil wealth into improving the lives of the poor. Only a concerted change in the incentive structure surrounding oil can help ensure that states will manage petroleum revenues to benefit the poor. The Chad experiment The Chad-Cameroon Pipeline Project, inaugurated last October, is the biggest international effort to date to focus an oil development project on a poverty reduction outcome. Multinationals, international financial institutions, and governments are working to increase the benefits and minimize the harm of this oil project to local populations. International and local civil society groups are closely monitoring the project. The explicit goal in Chad, Africa’s newest petrostate, is to build government capacity to manage massive new oil wealth in a transparent and fair manner. Until the government allocates and effectively spends oil revenues to make concrete improvements in the lives of the poor, this project will remain an untested “model.” The project includes a World Bank-required revenue management law that mandates Chad to funnel oil revenues into the following four areas: a future generations fund; priority development projects such as health, education, and water; a special fund to compensate the oil-producing Doba region in the south;

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and general government coffers. The law also establishes a Petroleum Revenue Oversight Committee, made up of government and civil society members, which will oversee and approve the spending of the oil monies. The project is promising on paper, and the World Bank’s involvement is an innovative experiment that deserves close attention. But even if Chad follows the project exactly as designed, the US$3.7 billion project that built 1,000 kilometers of pipeline from Chad to the coast of Cameroon has major flaws and gaps. The project must address these problems if the petrodollars are to benefit the people: ●

●

●

●

●

The revenue management law only covers three oil fields in the Doba region, even though the project has high expectations of finding more oil elsewhere that companies will export through the pipeline. Thus, a significant amount of oil revenues may soon fall outside this mandate. The international community must hold oil exploration and production – which would use the same World Bank backed pipeline – to the same social and environmental safeguards as the Doba fields. Presidential decree five years after the law’s passage ( January 2004, which coincided with the flow of oil revenues) can change the mandate targeting funds for development programs in the Doba oil region. The Revenue Oversight Committee has limited capacity to perform its role. It needs capacity building, training, and an independent funding source, particularly for civil society members. Regional development plans and spending plans for priority sectors still are not in place. Neither are democratically chosen local governance institutions that would enable quality spending of Chad’s petrodollars. Cameroon does not have a revenue management system in place. While Cameroon’s earnings are lower, without a revenue management system, the country lost its opportunity to improve overall budget transparency. Transparency International’s corruption perception index in 1998 and 1999 listed this country as number one.

The project may prove to have some positive lessons for Chad and other exporters in Africa or, as some speculate, in Iraq. But as the pipeline is officially inaugurated, there will be little but moral suasion to keep Chad from making the same oil-revenue mismanagement mistakes as its neighbors. The World Bank is testing the revenue management plan in a country with serious governance and human rights problems. In late 2000, the government of Chad spent the first US$4.5 million of the international oil consortium’s US$25 million signing bonus, not on health or other development priorities, but on military weapons. Recently, President Deby’s party declared its intent to change the constitutional two-term presidential limit,44 independent radio stations have been closed down, and President Deby’s brother-in-law has been appointed to the Revenue Oversight Committee, among other worrying developments.

Transparency in petroleum revenues 51 It will take continued high-level effort and attention from the World Bank, IMF, the United States and other northern governments, the Chadian government, and civil society groups to ensure that this project meets its stated objective: reducing poverty in one of the poorest countries in the world. No more “business as usual” While the Chad experiment is a start, to improve outcomes for the poor across Africa’s petro-states, all actors need to change some of their practices and work together in a more concerted manner. Unless the main players make specific policy changes, as discussed in the section on “Oil, poverty, and conflict,” Africa’s oil boom is unlikely to foster any significant poverty reduction. Instead, oil riches will most likely continue to produce corruption and mismanagement, environmental destruction, human rights violations, and conflict. It is urgent that states make improvements to emphasize transparency and fairness, construct capable and accountable institutions, and ensure respect for human rights and the promotion of democratic space in oil-producing countries. Catholic Relief Services believes that a “big push” for transparent oil-revenue management in Africa is both achievable and vital. Many outsiders will benefit greatly from Africa’s oil boom – oil companies will make large profits, and northern governments and consumers will secure new supplies. But these benefits cannot be at the expense of millions of Africans. The responsibility for ensuring that Africans themselves benefit is a collective one. Successfully managing the wealth that Africa’s oil boom is creating is one of the major challenges the international community faces in its relations with Africa. The alternative will be much more than an opportunity lost, but a disaster for millions of Africans. A dismal scenario A US National Intelligence Council report in 2000 described one dismal scenario. In Africa, “the pattern of oil wealth fostering corruption rather than economic development will continue. The quality of governance, rather than resource endowments, will be the key determinant of development and differentiation among African states.”45 This prediction will come to pass if African governments, northern governments, oil companies, and international financial institutions maintain their current policies. “Business as usual” would mean, for example, that: ●

●

●

African governments continue to lack accountability and treat key information about oil revenues as state secrets. Oil companies pursue their commercial and competitive objectives, and seek only to keep cordial relations with host governments. The United States and other northern governments prioritize commercial interests over transparency, human rights, and democracy in their relations with African petro-states.

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Ian Gary The World Bank and IMF pursue continued engagement with African petro-states without sufficient attention to transparency, human rights, and democracy. Civil society remains weak, and lacks information and resources to hold governments accountable.

In this scenario, popular anger at the mismanagement of oil wealth and the lack of visible improvements in the quality of life results. This anger, at times, boils over into sabotage, rebellion, and conflict. A helpful scenario A more hopeful scenario involves a concerted change in the incentive structure surrounding the management of Africa’s oil wealth. A sustained, coordinated, and coherent effort among all relevant actors will increase the benefits and minimize the harm from oil development. In this “big push” scenario, actors within each sector and across sectors will work together rather than at cross-purposes. This “big push” approach would mean, for example, that: ●

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Oil companies work collectively to address problems that threaten the reputation and sustainability of their business. Corporations do not sacrifice “best practice” in publishing revenue payments to the altar of competitive pressure. Western governments work together to promote a common policy on transparency, governance, and human rights. Rather than using diplomatic resources solely to expand market opportunities for oil companies operating in Africa, these governments would direct their export credit agencies to adopt common policies that promote transparency and accountability in oil projects. The World Bank and the IMF work with the common purpose of leveraging their influence to promote transparency and accountability in managing oil wealth. African and international civil society groups work together, strengthened by better information, to improve the management of oil wealth for poverty reduction.

In this scenario, oil revenues become more transparent, democratic space increases, and an empowered civil society helps to ensure that petroleum revenues are well managed to benefit the poor. Changed external incentive structures and demands from their own people will encourage African governments to improve their management of oil wealth. Only collective and coordinated action can make a difference. Whether actions within and between sectors will be reinforced or undermined depends on what others do. One oil company cannot step out in front of others without the fear of losing business. The World Bank and IMF will not be successful in promoting

Transparency in petroleum revenues 53 reform efforts if the United States and other major powers do not support them. In bilateral relations, all western governments will need to adopt the same policies toward African oil exporters. Only this way will incentive structures change to promote transparency and accountability in managing oil wealth. At the signature bonus ceremony in São Tomé, President Fradique de Menezes promised not to repeat the mistakes of other oil exporters. We have committed ourselves to the publication of oil revenues, and to regular and effective auditing of those revenues according to internationally accepted standards. We will implement a revenue management plan linked closely to the Millennium Development Goals of the United Nations. We will implement the best practices drawn from countries around the world. But in and of itself, oil is not the solution. It is just a means to an end. The key to our future is our democracy and our democratic values, basic rights for all our citizens, good governance and sound economic policies. This can only come from within.46

Recommendations Oil-exporting governments should: ●

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remove legal and extralegal obstacles to transparent disclosure and monitoring of the oil sector; guarantee respect for human rights, including freedom of expression, association, and the press; and collaborate with citizen groups monitoring the management and allocation of oil wealth.

Oil companies should: ●

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support the international “Publish What You Pay” campaign by publicly disclosing, in a disaggregated, regular, and timely manner, all net taxes, fees, royalties, and other payments made to African states, at any level, or to local communities, including compensation payments and community development funding;47 and fully respect human rights in their operations.

The World Bank and International Monetary Fund should: ●

●

●

use their leverage with both companies and countries to promote transparency, fair and accountable revenue management and allocation, and respect for human rights; properly sequence their leverage, so that significant steps toward building good governance take place prior to assistance for developing the oil sector; and ensure that the extractive sector aligns all activities with the World Bank’s poverty reduction mandate.

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Export credit agencies should: ●

require private sector companies wishing to access loans, guarantees, and risk insurance to disclose publicly, in a disaggregated, regular, and timely manner, all net taxes, fees, royalties, and other payments made to African states.

The United States and other northern governments should: ●

●

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●

emphasize the respect for human rights, the promotion of good governance and democracy, and the transparent, fair, and accountable management of oil revenues in their bilateral relationships with African petro-states (state visits by President Dos Santos of Angola to the White House or President Bongo to the Elysée Palace send exactly the wrong signals about their management of oil-rich states); make trade benefits, such as the US African Growth and Opportunity Act, conditional on transparency in oil revenues; support international efforts to increase transparency in oil payments by companies to developing countries; and use their influence to prioritize transparent, fair, and accountable revenue management within the World Bank and the IMF.

Will all these, even if implemented, be enough to avoid the oil-fuelled disasters of the past? Perhaps not, but without these crucial first steps, the outcomes of Africa’s oil boom will be grimly predictable.

Notes 1 Strategic Issues Advisor for Africa, Catholic Relief Services. Much of this chapter is drawn from Ian Gary and Terry Karl, Bottom of the Barrel: Africa’s Oil Boom and the Poor. Baltimore, MD: Catholic Relief Services, June 2003. Ian Gary is Strategic Issues Advisor for Africa with Catholic Relief Services. Terry Lynn Karl is Professor of Political Science and Senior Fellow, Institute for International Studies, Stanford University. 2 From the January 25, 2002 symposium “African Oil: A Priority for U.S. National Security and African Development” sponsored by the Institute for Advanced Strategic and Political Studies, Washington, DC. The full quote is: “It provides a revenue stream that should supply capital to grow African economies and to break the cycle of poverty that plagues the continent.” 3 Interview near Ngoumou, Cameroon, September 23, 2002. 4 Unless otherwise cited, the argument in this section and the statistics on the performance of oil-exporting countries is from Terry Lynn Karl, The Paradox of Plenty: Oil Booms and Petro-States. Berkeley, CA: University of California Press, 1997 or Terry Lynn Karl, “The Impact of Oil Booms on Oil-Exporting Countries: Reflections on The Paradox of Plenty,” in Fueling the 21st Century: The New Political Economy of Energy, special edition of The Journal of International Affairs 53 (No.1) (Fall 1999). These works should be consulted for a more complete explanation of the oil phenomenon described here. In addition to works cited earlier, see Richard M. Auty, Sustaining Development in the Mineral Economies: The Resource Curse Thesis. London: Routledge, 1993. Jeffrey Sachs and Andres Warner, Natural Resource Abundance and Economic Growth, Development Discussion Paper (No.517). Cambridge: Harvard Institute for International Development, 1995.

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5 6 7

8 9 10 11

12 13

14 15 16 17 18 19 20 21

Michael Ross, “Extractive Sectors and the Poor,” An Oxfam America Report, 2001, Richard M. Auty and Alan G. Gelb, “Political Economy of Resource Abundant States,” in Richard M. Auty (ed.), Resource Abundance and Economic Development. Oxford University Press, 2001, pp. 126–144, and Paul Collier and Anke Hoeffler, Greed and Grievance in Civil War, Policy Research Working Paper 2355, Development Research Group, World Bank, May 2000. Indonesia was the only large less-developed oil exporter avoiding this pattern, but this too changed after 2000. Human Development Report 2001, pp. 150 and 168. Witness also the positive impact of natural resource wealth on Canada, Australia, and the United States during the first wave of fossil fuel development. But these countries had competitive manufacturing sectors prior to the development of their mineral resources, unlike oil exporters in less-developed countries where the sequence is reversed. And oil was not a primary export commodity; countries used it internally. Interview with Terry Lynn Karl, Juan Pablo Perez Alfonzo, Caracas, Venezuela, summer, 1976. US Department of State, Angola Country Report on Human Rights Practices 2002, March 31, 2003. Much of the information in this section is from Karl, The Paradox of Plenty and Jahangir Amuzegar, Managing the Oil Wealth: OPEC’s Windfalls and Pitfalls. London: I.B. Tauris Publishers, 1999. This is the phrase used by economists. See for example, Gobind Nankani, “Development Problems of Nonfuel Mineral Exporting Countries,” Finance and Development 17 ( January 1980); Alan Gelb, Oil Windfalls: Blessing or Curse? New York: Oxford University Press, 1988; and Auty, Sustaining Development. For more recent quantitative studies, see Richard M. Auty, Resource Abundance and Economic Development. Helsinki: UNU World Institute for Development Economics Research, 1998 and Jeffrey Sachs and Andrew Warner, Natural Resources and Economic Growth (Revised Version). Harvard Institute for International Development Discussion Paper, 1997. See Richard Auty, “Natural Resources, the State and Development Strategy,” Journal of International Development 9, 651–663 (1997). A comprehensive study by Harvard economists Jeffrey Sachs and Andres Warner demonstrates that countries whose natural resource exports composed a high percentage of gross domestic product (GDP) had abnormally slow growth rates between 1971 and 1989 when compared to nonresource based development models. Drawing on data from 97 developing countries, these researchers confirm that there is a negative relationship between a country’s dependence on natural resource exports and its subsequent growth. Thus, countries that base their development on resources like petroleum grow more slowly than those that follow other development models. See Natural Resource Abundance. See for example, Carlos Leite and Jens Weidmann, “Does Mother Nature Corrupt? Natural Resources, Corruption, and Economic Growth,” IMF Working Paper WP/99/85. See Alan Gelb, Oil Windfalls: Blessing or Curse? World Bank, Oxford University Press, 1988. See Thorvadur Gylfason, “Nature, Power and Growth,” and Leite and Weidemann, “Does Mother Nature Corrupt,” IMF working Paper, WP/99/85. See Howard Schissel, “Champagne: Top of the Pops,” West Africa 3 ( June 1985). World Bank, Gabon: Poverty in a Rent-based Economy. Washington, DC ( June 27, 1997). Social Development Notes (No.54), March 2001, World Bank, “ ‘Bottom-Up’ CommunityBased Development: Gabon Urban Development Project.” World Bank, “Gabon: Poverty in a Rent-Based Economy,” Washington, DC ( June 27, 1997). In 1994, public spending still reached US$337 per student at the primary and secondary levels.

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22 See Ricardo Hausmann and Michael Gavin, “Securing Stability and Growth in a Shock Prone Region: The Policy Challenge for Latin America,” IDB Working Paper 315, 1996; Garey Ramey and Valerie A. Ramey, “Cross-country Evidence on the Link Between Volatility and Growth,” American Economic Review 85, 1138–1151 (1995); Karnit Flug, Antonio Spilimbergo, and Eric Wachenheim, “Investment in Education: Do Economic Volatility and Credit Constraints Matter?,” Journal of Development Economics 55 (No.2), (1999). 23 See W.M. Corden and P.J. Neary, “Booming Sector and De-industrialization in a Small Open Economy,” Economic Journal 92, December 1982 and Peter Neary and Sweder van Wijnbergen (eds.), Natural Resources and the Macro-economy. Cambridge, MA: MIT Press, 1986. 24 See Mohsen Fardmanesh, “Dutch Disease and the Oil Syndrome: An Empirical Study,” World Development 19 (No.6), (1991). 25 See Paul Krugman, “The Narrowing Moving Band, the Dutch Disease, and the Competitive Consequences of Mrs. Thatcher,” Journal of Development Economics 27, 41–55 (1987). 26 Roland Pourtier, Le Gabon, 2 vols, Paris: Karthala, 1989, 274. 27 Africa Research Bulletin, Economic, Technical and Financial Series 37 (No.1), 14206 ( January 16, 2000). 28 Africa Review World of Information (2002). 29 For example, in Angola, a country of over 11 million people, the oil industry employs fewer than 10,000, while the industry accounts for almost half of Angola’s GDP. See Global Witness, A Crude Awakening, 1999, p. 6. 30 Both statistical work and case studies are clear on this point. See, for example, Paul Collier and Anke Hoeffler, Greed and Grievance in Civil War, Policy Research Working Paper 2355, Development Research Group, World Bank, May 2000. This study shows that states dependent on the export of oil and minerals face a risk of civil war of 23 percent for any five-year period, compared to a risk of 0.5 percent for a country with no natural resource exports. 31 In some years, for example, subsidies in the Persian Gulf have run as high as 10 to 20 percent of GDP. Amuzegar, Managing the Oil Wealth, p. 101. 32 President Bongo’s marriage to Congo-Brazzaville’s President Sassou Nguesso’s daughter is but one of the intimate links that bind regional political relations. 33 Economist Intelligence Unit, Gabon and Equatorial Guinea Country Report, January 2003. 34 Where the average developing country spends about 12.5 percent of its budget on the military, Ecuador in contrast spends 20.3 percent, and Saudi Arabia spends a whopping 35.8 percent. Ross, “Extractive Sectors and the Poor,” p. 15. 35 See Karl, The Paradox of Plenty and Karl, Lynn and Michael Ross, “Does Oil Hinder Democracy?,” World Politics 53, 325–361 (April 2001). 36 See Karl, The Paradox of Plenty; Auty, “Natural Resources, the State, and Development Strategy,” pp. 651–663; and Auty and Gelb, “Political Economy of Resource Abundant States,” pp. 126–144. 37 Pipelines are the special focus of violence, as events in Burma, Indonesia, and Colombia demonstrate. 38 See James D. Fearon, “Why Do Some Civil Wars Last So Much Longer than Others?” Paper presented at “Civil Wars and Post-Conflict Transition,” University of California, Irvine (May 18–20, 2001). This study includes data from 122 civil wars between 1945 and 1999. 39 “Africa Energy Intelligence,” Paper presented at “Gulf of Guinea: Berlin Conference for Oil” (September 11, 2002). 40 See Ken Silverstein, “Sinking its Hopes into a Tiny Nation: Obscure Texas Oil Firm, Amid Claims of Bribery, Secures a deal with Poor São Tomé,” Los Angeles Times

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41 42 43 44 45 46 47

(May 24, 2003) and Jon Lee Anderson, “Our New Best Friend: Who Needs Saudi Arabia When You’ve Got São Tomé ?,” The New Yorker (October 7, 2002), pp. 74–83. “Africa Energy Intelligence,” Paper presented at “Gulf of Guinea.” UN Integrated Regional Information Networks, November 19, 2002, Johannesburg. Ken Silverstein, “Oil Boom Enriches African Ruler,” Los Angeles Times ( January 20, 2003). The National Assembly of Chad agreed in May 2004 put the constitutional amendment on a third term to a national referendum in late 2004. National Intelligence Council, National Foreign Intelligence Board, Global Trends 2015: A Dialogue about the Future with Nongovernmental Experts, December 2000. Alexander’s Gas & Oil Connections, New & Trends Africa, vol. 18 (No.24), Thursday 11, 2003. www.publishwhatyoupay.org

4

Protecting and reintegrating displaced women and children postconflict Erin Mooney

Introduction In Africa and around the world, the overwhelming majority of refugees and internally displaced persons (IDPs), some 70–80 percent, are women and children. Women and children have particular protection and assistance needs beyond the needs and vulnerabilities that men suffer. In many conflicts, displaced women and children are specifically targeted for abuse, including rape and other forms of sexual violence. Children, whom armed groups increasingly rely upon to fill their ranks, are at heightened risk of abduction and forced recruitment by armed groups to serve either as soldiers or in roles such as porters, guides, and sexual slaves. Conflict, as well as the separation of families that often occurs in the course of displacement, also thrusts many women and children into new roles. There are dramatic increases in the number of women who become heads of households and are suddenly burdened with the primary responsibility of protecting and providing for their families. For displaced women and children, moreover, an end to conflict does not necessarily end the risks to their physical security and well-being. Indeed, they face additional challenges in the context of return or resettlement and reintegration. Too often, a “one-size fits all” solution overlooks the particular needs and vulnerabilities that displaced women and children experience. For example, a 1994 assessment of the reproductive and health needs of women and girls in conflict situations in Africa found that many operational agencies considered the integration of gender considerations into the planning and implementation of their programs and activities “an irrelevance, or at best an optional extra, to be bolted on if there is time.”1 Ten years later, the reality on the ground has not significantly changed. To be sure, there is much greater awareness that displaced and other war-affected women and children are among those most adversely affected by conflict and displacement, and have particular protection, assistance, and reintegration needs that require special attention.2 Even so, a perspective that takes into account the particular risks, needs, capacities, and views of women and children is seldom applied as a priority or in a serious and systematic manner. It may be that programs addressing women and girls’ particular protection and assistance needs are eventually developed and undertaken. But, as one observer has pointed

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out, “new ideas cannot simply be added onto existing programming that structurally resists them. It would be like adding eggs on top of a cake after it has already started to bake.”3 Ensuring protection and assistance for displaced women and children is not a marginal issue, but is central to the effectiveness of the overall response. If displaced women and children are not receiving the protection and assistance they need, this means that most displaced persons are not being protected and assisted. This chapter focuses on seven key issues of concern for the protection and reintegration of displaced women and children in the aftermath of conflict. Specifically, these concerns are: (1) engaging women and children in the decisions that affect their lives; (2) peace-building; (3) protection during return or resettlement; (4) protection from sexual violence and exploitation; (5) education; (6) skillstraining and income-generating opportunities; and (7) land and property rights. This is by no means an exhaustive list, but these are among the most critical areas that need greater attention and could yield important results. While these concerns are relevant both to refugee as well as to internally displaced women and children, this chapter gives particular emphasis to internally displaced women and children. There are two main reasons for this. First, the vast majority of women that conflict in Africa uproots are displaced within their own countries: 13 million of the world’s 25 million internally displaced persons uprooted by conflict and communal strife are in Africa; by contrast, the continent has 3.5 million refugees.4 Second, and most importantly, when their own government denies them protection, IDPs, unlike refugees, have no established international regime to turn to for protection and assistance. As a result, many IDPs do not receive adequate protection, healthcare, food, shelter, or other assistance during their displacement. Indeed, internally displaced populations, specifically in Africa, suffer the highest mortality and malnutrition rates in humanitarian emergencies.5 Moreover, the disparities in treatment continue during return or resettlement; while refugees can expect some support for reintegration from the United Nations High Commissioner for Refugees (UNHCR), IDPs do not necessarily receive the same assistance and often are left to fend for themselves. In addition to being discriminatory, as one long-time advocate for both groups has pointed out, this discrepancy also risks creating new tensions and undermines the very purpose of reintegration, which is to resolve, not encourage, resentments and conflict.6

Guiding principles to protect and assist the internally displaced The Guiding Principles on Internal Displacement (Guiding Principles), the first international standards specifically for internally displaced persons, set forth the rights of internally displaced persons and the responsibilities of states and other actors toward them.7 Developed by the Representative of the United Nations SecretaryGeneral on Internally Displaced Persons, at the request of the United Nations Commission on Human Rights and the UN General Assembly, the Guiding

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Principles compile and restate the various relevant norms of international human rights and humanitarian law and indicate what they mean in situations of internal displacement. The Guiding Principles cover all phases of internal displacement, addressing protection against arbitrary displacement, protection, and assistance during displacement, and safe and voluntary return or resettlement and reintegration. The Guiding Principles contain many provisions of particular importance for internally displaced women and children. To begin with, there is recognition that addressing the particular needs of certain internally displaced persons, especially unaccompanied minors, expectant mothers, mothers with young children, and female heads of household, may require special attention (Principle 4). The Guiding Principles prohibit gender-specific violence, with explicit reference to rape, forced prostitution, and indecent assault. They also prohibit slavery or any contemporary form of slavery, such as sale into marriage, sexual exploitation, or forced labor of children (Principle 11). Principle 13 unequivocally asserts that in no circumstances shall displaced children be recruited or take part in hostilities. Displaced children, especially unaccompanied minors, are at heightened risk of forcible recruitment and of becoming child soldiers. In Liberia, where an estimated half of the 50,000 fighting forces were child soldiers, internally displaced children in the camps were particularly vulnerable to abduction and forced recruitment. In northern Uganda, children are believed to make up more than 80 percent of the ranks of the insurgent forces of the Lord’s Resistance Army. Tens of thousands of children flee their homes each day at dusk into the city and sleep in the streets in an effort to escape abduction by rebel forces. The Guiding Principles pay special attention to the integrity of the family. Especially for children, the family is the most basic unit of protection and psychosocial support. For internally displaced persons, the right to respect family life includes the right for family members to remain together during displacement and that separated families be reunited as quickly as possible, particularly when children are involved (Principle 17). Furthermore, Principle 16 provides that internally displaced persons have the right to know the fate and whereabouts of missing relatives. The Guiding Principles also underscore the importance of internally displaced persons having all the necessary documents to exercise their rights. They specify women’s equal rights to personal identification and other documentation, and their right to have this documentation issued in their own names (Principle 20). Issuing documentation directly to and for women is important in order to avoid situations where women heads of household or single women have to struggle to be recognized in the exercise of their rights, including in obtaining access to relief assistance and medical care. Moreover, special attention is to be paid to the health needs of women. Women should have access to female healthcare providers and services, including reproductive healthcare, and victims of sexual and other abuses should have access to counseling (Principle 19). Internally displaced children, like all children, have the right to education. Special efforts are to be made to ensure the full and equal participation of women

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and girls in educational programs (Principle 23). The authorities need to ensure that internally displaced children receive free education at the primary level and that further education and training facilities are available, in particular to adolescents and women, whether or not they live in the camps. As stated in their introduction, the Guiding Principles are specifically intended to provide guidance to states faced with the phenomenon of internal displacement. They also provide guidance to other authorities and groups, which includes insurgent groups; this is important as millions of internally displaced persons are in areas that are under the control of nonstate actors and to which humanitarian access often is very difficult. Moreover, when governments are unable or even unwilling to fulfill their responsibilities toward internally displaced populations, the international community has a role. Accordingly, the Guiding Principles provide guidance to intergovernmental organizations, international agencies, and nongovernmental organizations. Above all, it is an important document for internally displaced persons themselves, providing them with awareness of their rights and a tool to buttress their advocacy efforts. Since their presentation to the United Nations in 1998, the Guiding Principles have gained significant international standing and recognition as a tool and standard to address situations of internal displacement.8 All regions of the world, including in Africa, are widely using them. In 1998, a UN regional seminar on internal displacement in Africa, cosponsored with the Organization of African Unity (OAU), recommended the wide dissemination of the Guiding Principles in Africa and called for particular attention to be paid to protect, assist, and reintegrate the needs of internally displaced women and children.9 The following year, the OAU Commission on Refugees and Displaced Persons took note of the Guiding Principles “with interest and appreciation” and recommended to the OAU Council of Ministers that member states cooperate with the Representative of the Secretary-General in their implementation. The African Union has carried on this commitment to the Guiding Principles: at a seminar in 2003 on migration in East Africa, the Horn, and the Great Lakes, governments reaffirmed their commitment to the Guiding Principles as a useful tool and standard for addressing situations of internal displacement.10 Subregional bodies also have recognized and are promoting the Guiding Principles. For instance, the Accra Declaration on War Affected Children in West Africa, which member countries of the Economic Community of West African States (ECOWAS) adopted in 2000, welcomed the Guiding Principles and called on ECOWAS member states to provide full protection, access, and relief to internally displaced persons in accordance with the Guiding Principles. In September 2002, ECOWAS member states at a seminar on migration further recommended the development of national laws on internal displacement and the training of regional peacekeepers, using the Guiding Principles as a framework.11 The following year, countries in the East African subregion covered by the InterGovernmental Authority on Development agreed to direct particular attention to develop policies that ensure the protection of the internally displaced and address the needs of especially vulnerable groups, such as women heads of household and children, and took note of the Guiding Principles as a useful tool

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for developing and evaluating appropriate national policies and legislation on internal displacement.12 A number of countries have adopted national legislation or policies on internal displacement that make use of the Guiding Principles, and Africa has led the way. In 2000, Angola became the first country to enact legislation expressly based on the Guiding Principles, in its “Norms on Resettlement.” The following year, the Government of Burundi signed a “Protocol for the Creation of a Permanent Framework of Cooperation for the Protection of Displaced Persons,” which has the promotion and application of the Guiding Principles as a key objective. Uganda developed a national policy on internal displacement based on the Guiding Principles, and a similar initiative is underway in Nigeria. Liberia, in November 2004, became the first government to formally adopt the Guiding Principles. Nonstate actors also are making use of the Guiding Principles: the Sudan Peoples’ Liberation Movement and Army developed a policy on internal displacement that spells out the standards for the return or resettlement and reintegration of the displaced.13 The Guiding Principles provide a common reference point for governments, regional organizations, international agencies, civil society, and IDPs themselves to monitor the rights of IDPs and assess the effectiveness of national and international responses, including finding durable solutions to their plight. To reach IDP women and children in Africa, their wide dissemination and use is important. To facilitate this, the Guiding Principles have been translated into several local African languages, including Dinka, Kirundi, Nuer, and Swahili. Ensuring that the message of the Guiding Principles reaches the large numbers of IDPs, given that many women are illiterate, may require creative dissemination techniques, such as drama and radio programs. The IDPs themselves perhaps best convey the importance of doing so. In the words of an Angolan widow and mother of four, who was trained at Salga Camp in Luanda province, I knew that we had rights, just like any other person. Now that I know exactly what they are, it is my responsibility to ensure that my community understands them too. I am thankful for this opportunity to learn and teach about our rights. If we know about the Guiding Principles and [n]orms [on resettlement based on the principles], we know our lives can improve.14

Key protection and reintegration concerns When wars end, specific attention to the particular needs of internally displaced women and children continues to be required. Within the scope of this chapter, it is possible to discuss only selected aspects of the required response. Seven specific areas where greater attention is needed and could yield important results are: (1) engaging IDP women and children in the decisions that affect their lives; (2) peace-building; (3) protection during return or resettlement; (4) protection from sexual violence and exploitation; (5) education; (6) skills-training and income-generating opportunities; and (7) land and property rights for women.

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Engaging internationally displaced women and children in decision-making Internally displaced persons, the Guiding Principles affirm, have the right to request and to receive protection and humanitarian assistance. Moreover, as earlier noted, specific groups of IDPs such as children, mothers with young children, and female-headed households, are entitled to protection and assistance that takes into account their special needs.15 Involving displaced women in the decisions that affect their lives is the most effective way to provide this assistance. As providers for their families, women play a central role in reducing the vulnerability, not only of their family, but also their community affected by displacement. Agencies have found that involving women in program design and delivery to be particularly efficient and effective, as women are best placed to know what are their family needs. Often they introduce ideas or raise concerns that would otherwise go overlooked. Moreover, engaging women in the design and implementation of relief and reintegration assistance programs can be critical for their protection. Distribution of aid by women directly to women helps prevent the scenario where women trade sexual favors in order to obtain assistance for themselves and their families. The Guiding Principles underscore the importance of ensuring the full participation of women in planning and distributing assistance as well as when planning return or resettlement and reintegration processes.16 In addition, the Protocol to the African Charter on Human and People’s Rights on the rights of women stipulates that states are to take measures to ensure the increased participation of women in all levels of the structures established for the management of camps and settlements for refugees, returnees, and displaced persons.17 Too often, IDP women are left out of decision-making processes and their views are ignored. In Burundi, when the UN Representative of the SecretaryGeneral on Internally Displaced Persons asked to meet with the leaders of an IDP camp housing several thousand women and 25 men, only men came forward to discuss the problems of the camp.18 More recently, human rights monitors seeking to consult with IDPs uprooted by the conflict in Darfur, Sudan, where rape of women and girls has been widespread and systematic, it was again men, who were a small minority of the displaced, who often spoke for the group.19 Even when displaced women are included in camp management structures, they frequently struggle to have their voices heard and their views taken into account. In Liberia, where there were provisions for a “women’s representative” on IDP camp management committees, IDP women reported great difficulty in getting the men on the committee to listen to their concerns; one woman expressed frustration that the men did not bother to inform her as to when the camp committee meetings would occur.20 It is therefore critical to also encourage and support the organizations that displaced women themselves form. Moreover, this assistance must continue after displaced women leave camps and settlements to return or resettle. Often there is a tendency to disband women’s organizations created during displacement crises.21 Yet, in postconflict situations, women’s groups that

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seek to empower women and promote their engagement in the economic and political arenas are essential to women’s reintegration as well as to rebuilding the country as a whole. Displaced children also should be engaged in developing programs to address their particular needs, for instance, as regards to education and how best to safeguard them from military recruitment. Article 12 of the Convention on the Rights of the Child affirms that children have the right to have a say in matters affecting their own lives. Peace-building Among the areas in which it is important for displaced women and children to have a say is in efforts to resolve the conflicts that uprooted them. Although women and children account for the vast majority of civilians that armed conflict uproots and otherwise affects, and indeed often are specifically targeted by combatants, those negotiating peace agreements seldom hear their voices even though women so often make important contributions to conflict resolution and reconciliation within their communities. All over Africa, grass-roots initiatives have sprung up whereby women, including displaced women, promote peace-building and national reconciliation. For example, in Burundi, where ethnic conflict has sought to pit ethnic Hutus and Tutsis against one another, a women’s network called Dushirehamwe (meaning “Let’s Reconcile!”) took internally displaced women to their areas of origin to speak with their former neighbors from the other ethnic group, thereby promoting reconciliation as well as confidence-building among the different ethnic communities.22 In another initiative, one of the women’s groups in this network, called Gatumba and whose members included Hutus as well as Tutsis, obtained land so that displaced women from both groups could work together in the field, discussing issues of mutual concern as they worked. The leader of the group traveled to Bujumbura once a month to get news about the peace process and reported the news back to the displaced women.23 In northern Uganda, a displaced women’s group created forums for IDP women to express their feelings and concerns about their experiences in the displacement camps by performing plays and dances, which provided psychosocial support to the women and promoted greater national awareness of their plight.24 In Liberia, the author witnessed a powerful performance by the Children in Reconciliation Program, which brings together children from the sixteen different ethnic groups to perform dances and plays promoting national reconciliation and peace. In contrast to the active role that women frequently play in conflict prevention, conflict resolution, and peace-building, few women have seats at the negotiating table in formal peace-processes. The UN Secretary-General, in a report to the Security Council, pointed out that “[w]hile the impact of the contribution of women to informal peace processes is well known, obstacles to their participation and to the systematic incorporation of gender perspectives in formal peace processes remain.”25 Among the obstacles the Secretary-General identified

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were: the typically male-dominated leadership of political parties, which extends to the selection of the parties’ representatives at peace negotiations; the tendency to overlook women’s concerns and needs when “peace at any cost” becomes imperative; and practical obstacles such as the lack of resources to participate in lengthy negotiation processes.26 And yet, as African refugee women have pointed out, “[i]f any chance for effective resolution and for stabilization of the African continent is to be attained, women must be involved and embraced in the structure of leadership and peace negotiations.”27 In recent years, attention has begun to be drawn to women’s exclusion from peace processes and the need to ensure that their voices and concerns are in fact heard. In a particularly significant development, in October 2000, the UN Security Council adopted a resolution recognizing that the participation of women and girls in peace processes “can significantly contribute to the maintenance and promotion of international peace and security,” and accordingly called for measures to be taken to support women’s involvement in negotiating and implementing peace processes.28 Since then, a number of initiatives have been undertaken to support women’s greater engagement in peace processes. These initiatives include training women in negotiation and mediation skills and providing support to women in specific countries to outline a common agenda of the concerns they expect to be addressed in the peace and reconstruction processes.29 Special attention needs to be paid to ensure that IDP women are part of peace and reconstruction process efforts and that their particular views and concerns are heard. One noteworthy example comes from Burundi, where, parallel to official peace negotiations, women, including refugee and internally displaced women, organized and took part in an All-Party Burundi Women’s Peace Conference in Arusha, Tanzania in July 2000. Nineteen political parties, civil society, refugees, and internally displaced women were represented at the conference, which was aimed at focusing the attention of the peace negotiators on the particular concerns of Burundi’s war-affected women. The final peace agreement incorporated several recommendations made at the conference. These recommendations included special measures to guarantee the safe return and reintegration of refugee and IDP women and children; provisions to punish the perpetrators of war crimes and gender-based violence, including rape, sexual violence, forced prostitution, and domestic violence; and affirmed girls’ equal rights to education.30 Liberian women also lobbied actively for their voices to be heard in the peace process that ended the country’s devastating 14-year civil war in August 2003. The Women in Peace-Building Network played a pivotal role, staging demonstrations and marches that eventually succeeded in securing women’s representation at the peace talks. The presence of Liberian women’s groups at the peace negotiations was instrumental in ensuring that the resulting peace agreement devoted specific attention to the needs of women and children. Of particular note, the peace agreement specifies that the national authorities shall accord particular attention to the rehabilitation of vulnerable groups or war victims, including children and women, that the conflict severely affected as well as, with the assistance of the international community, shall mobilize resources to address

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their special demobilization and reintegration needs. It also specifies that the government design and implement a plan for the voluntary return and reintegration of refugees and internally displaced persons, in accordance with international conventions, norms, and practices. In addition, the peace agreement specifies that “in formulating and implementing programs for national rehabilitation, reconstruction and development, for the moral, social and physical reconstruction of Liberia in the post-conflict period,” the government is to ensure the maintenance of gender balance in apportioning responsibilities for program implementation.31 Displaced and other women in countries in conflict should be encouraged and supported to press for their voices to be heard and their particular concerns taken into account in peace processes. The African Center for the Constructive Resolution of Disputes (ACCORD) has found that while many women are eager to participate in conflict resolution, they require training in negotiation and mediation skills, which ACCORD now provides.32 Women Waging Peace, a nongovernmental organization that advocates for women’s full participation in formal and informal peace processes around the world, recently published a toolkit to further assist such efforts. Entitled Inclusive Security, Sustainable Peace, the toolkit provides practical strategies to support women peace-builders, and includes a chapter on protecting refugees and IDPs.33 Women Waging Peace also has been working to put the principles of the toolkit into practice. For instance, in the fall of 2004, the organization brought together a group of Sudanese women to develop a common set of recommendations to use in their advocacy work regarding both the peace process between the government and the Sudan People’s Liberation Movement/Army concerning southern Sudan as well as the ongoing conflict and devastating humanitarian and displacement crisis in the western province of Darfur. Among the recommendations that the women formulated were: support for the voluntary and safe return, resettlement, and reintegration of refugees and IDPs; for the UN Security Council to establish a commission of inquiry to investigate reports of systematic rape of women and girls and to work with local women’s organizations in doing so; for donors to fund safe and effective delivery of reproductive healthcare to refugee and internally displaced women; and for the deployment of women police officers in IDP camps.34 Meetings were then organized for the Sudanese women with policy-makers in the United Nations and the US government (which was spearheading the peace process in southern Sudan) to help ensure that their recommendations reached those facilitating or otherwise engaged in the peace talks. The fact that women still faced challenges in having a seat at the table underscores the fact that far more work is needed to sensitize men and foster greater accountability to ensure women’s inclusion in the peace processes. While women did attend the peace talks, they were not part of the official delegations nor permitted to participate in the working groups. One of the parties to the talks reportedly gave the rational that “it would be embarrassing to include a woman in our delegation, when the government delegation does not have any.”35 Countries or organizations facilitating peace negotiations should be expected to insist that

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women have an equal opportunity to participate in the proceedings, and not only on subjects such as health and social issues that are often misrepresented as “women’s issues,” but in all aspects of the discussions. Following the signing of the peace agreement for southern Sudan on December 31, 2004, the next challenge for southern Sudanese women has been to press for participation in the various commissions being established as part of the peace agreement, including those that will address issues of land tenure, the distribution of oil revenue, and the drafting of the constitution, as well as to be well-represented at the donor conference being planned to discuss reconstruction needs.36 The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa affirms that “[w]omen have the right to a peaceful existence and the right to participate in the promotion and maintenance of peace.”37 To this end, states are to take measures to ensure the increased participation of women, including “in the local, national, regional, continental and international decision-making structures to ensure physical, psychological, social and legal protection of asylum seekers, refugees, returnees and displaced persons, in particular women” as well as in all aspects of the planning, formulating, and implementing of postconflict reconstruction and rehabilitation.38 Children, too, must have a voice. An international conference on war-affected children has called upon states to establish channels to enable children to bring their perspectives and ideas directly to national leaders and their governments.39 As UN Secretary-General Kofi Annan has pointed out, ensuring a social climate conducive to sustainable peace requires that the peace process represents all sectors and elements of society affected by conflict – not just the fighting forces.40 Protection during return and resettlement The signing of a peace agreement does not always signal the end of hostilities or that it is safe for displaced persons to return to their places of origin or resettle in other parts of the country. It may be months, even longer, before combatants are demobilized and disarmed. Moreover, intercommunal tensions and protection concerns may persist, and can increase, in the postconflict period. There can be a risk of retributive acts and new disputes, in particular as regards to land and property ownership, will arise. At the same time, protection mechanisms may be weak or altogether lacking; in protracted conflicts, a functioning police and judicial system often becomes a casualty of war. As a result, women, especially single unaccompanied women and women heads of household, and children remain at a particular risk. To begin with, and as the Guiding Principles specify, return or resettlement must be voluntary. Women accordingly must have a say in the decisions about return or resettlement and should be actively engaged in the planning of return or resettlement as well as the reintegration processes. This planning should take into account the situation of groups who tend to experience heightened vulnerability, including women heads of household and unaccompanied minors.

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Return or resettlement must also occur in conditions of safety. National authorities have a responsibility to create the conditions that enable the safe return or resettlement of the displaced. This requires a range of actions from landmine clearance to measures that ensure the respect for human rights, restore the rule of law, and foster national reconciliation. Above all, it requires the protection of the physical security of displaced persons at all stages of the return or resettlement process; that is, during transit, at the reception centers as well as at the destination. Due regard must be given to ensuring the safety of women and children, with special attention to those at heightened risk. For example, arrangements must be made to protect the physical safety of unaccompanied women, women heads of household, and unaccompanied minors by establishing separate, secure areas for them with adequate security and lighting.41 Stationing international field staff in areas of return and resettlement can be a critical means of not only monitoring security conditions, but also increasing safety in such areas until national authorities can assume this responsibility effectively. Protection officers monitoring the safety of women and children must have a thorough knowledge of the United Nations High Commissioner for Refugees’ Guidelines on the Protection of Refugee Women, which in large part are relevant to IDPs, and of strategies to promote their implementation.42 Sexual violence and exploitation Particular effort must be made to protect girls and women from sexual violence and abuse, which are not only rampant in conflict situations, but also can persist long after the wars end. Overcrowded and poorly protected displacement camps and other settlements are notoriously dangerous places for women and girls, especially for women heads of household and unaccompanied girls. Women and girls also are particularly at risk of sexual attack when they venture outside of the camps to collect firewood or water. The displacement crisis in Darfur, where the rape of IDP women and girls, in particular when they leave the camps to collect firewood, has been widespread and systematic, underscores that this long-standing and reoccurring problem has yet to be effectively addressed.43 When wars end, sexual violence against women and girls can also persist. An April 2004 mission to Liberia of the Women’s Commission for Refugee Women and Children (in which the author participated) found that eight months after the peace agreement ending the 14-year civil war, rape and sexual violence continued to occur, especially in IDP camps, where protection and assistance were minimal. Moreover, when displaced women are left in camps while their husbands and male relatives scout out prospects for return, they can be vulnerable to sexual violence and abuse.44 They may also face sexual violence and abuse in transit, as a form of retribution once they return, or when seeking access to reintegration assistance or to land and property. Particular mention must be paid to the children born to rape survivors, who risk being mistreated or even abandoned by their mothers and families and are therefore at particular risk of abuse and exploitation.45

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Gender experts have identified many steps that can be taken to mitigate the vulnerability of displaced women and girls to sexual violence and abuse. Camps and settlements should be designed with a view to shield displaced women and girls from these risks, for instance by secure and well-lit latrine areas, locks on bathing facilities, and community security patrols. Even something as simple as giving IDP women and girls lanterns and whistles can significantly reduce their vulnerability to sexual assault. The UNHCR’s guidelines to prevent sexual, gender-based violence, which apply also to IDPs, set out these and other practical measures.46 Several strategies can allow women to avoid walking alone in unsafe areas in search of firewood for cooking. Communal firewood collections can be organized. Alternatively, IDPs and refugees could be provided with firewood or alternative forms of fuel. In protracted crises, a cost-effective solution would be to plant fastgrowing trees close to IDP and refugee camps. Furthermore, humanitarian assistance could be designed with fuel efficiency in mind, for instance, by providing short-cooking beans that have the same nutritional value as beans that require two or three times the amount of cooking time.47 Sexual exploitation is another serious protection concern. Because women are often compelled to trade sexual favors to receive assistance, the distribution of aid directly to women and by women, which now is a standard operating procedure for the World Food Program, can greatly reduce women’s vulnerability to sexual extortion. Nonetheless, reports from the field underscore that much more remains to be done. A 2002 report by UNHCR and Save the Children exposed widespread sexual abuse and exploitation of refugee and IDP women and girls by peacekeepers and humanitarian personnel in West Africa. Indeed, the incidence of sexual assault, prostitution, and trafficking of women and girls often increases in postconflict countries when large peacekeeping forces are present. This is a particularly acute problem in the Democratic Republic of Congo, where there are widespread reports of UN peacekeepers sexually assaulting and exploiting young girls.48 International personnel have a responsibility not to engage in sexual exploitation and abuse of those they are supposed to protect and assist. In this connection, it is important to note that the Guiding Principles also apply to United Nations and other international staff and peacekeepers. Codes of conduct prohibiting sexual abuse and exploitation by peacekeepers and UN staff now exist, but better training of staff on this issue and closer monitoring and enforcement of these standards is needed. It is also essential that victims of sexual abuse and exploitation have avenues for recourse when abuse is threatened or occurs. Even if a victim is ready to come forward, effective reporting systems are seldom available and there are little prospects of the crime being punished. Moreover, judicial reform may be required: in Liberia, women’s groups are pressing to amend national legislation that limits the crime of rape to incidences of penile penetration, and thereby excludes the various other forms of sexual violence that women and girls suffer during and after the conflict. Another concern in war-ravaged countries is the fact that survivors of sexual violence often have great difficulty getting medical attention such as treatment for

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sexually transmitted diseases, including HIV/AIDS, prevention of unwanted pregnancy, and confidential counseling and support. In Darfur, the organization Physicians for Human Rights reported that Sudanese doctors at health clinics and hospitals turned away IDP women who had been raped when they sought medical care.49 The Guiding Principles underscore that victims of sexual violence must have access to counseling and appropriate medical care, including HIV/AIDS prevention.50 Education War takes a terrible toll on children’s education. After 14 years of civil war in Liberia, which uprooted 70 percent of the population, more than 75 percent of the educational infrastructure in the country was destroyed or severely damaged. The prolonged nature of the conflict means that an entire generation has grown up with severe disruptions in education. Illiteracy rates are astoundingly high (estimated at 78 percent nationwide), especially for women. Months after the conflict ended, less than half of school-aged Liberian children had access to education, and of those who attended school, there were twice as many boys as girls.51 In the IDP camps, even higher percentages of children were without schooling. Many Liberians point out with deep concern that for the first time in the country’s history, children in Liberia are less educated than their parents, leading to a “lost generation.”52 Education, of course, is essential for children’s development. For displaced and other war-affected children, going to school can also be critical for their psychosocial well-being, as it provides a degree of stability and normalcy in their traumatized lives. It can also help reduce children’s exposure to threats of sexual exploitation, trafficking, and military recruitment. Displaced children in northern Uganda, for instance, have pointed out that being in school is perhaps the best way to prevent the recruitment and re-recruitment of children into armed groups.53 Classrooms, moreover, can also be effective forums to convey life-saving information about risks like landmines and HIV/AIDS. Moreover, access to education is an important element to integrate displaced children into the local community, as well as when they return to their home areas or resettle elsewhere. Access to education is a right. In line with established international human rights law, like the Convention on the Rights of the Child, the Guiding Principles on Internal Displacement underscores the responsibility of national authorities to ensure that IDPs receive free and compulsory education at the primary level. In addition, the Guiding Principles urge authorities to make educational and training facilities available to the internally displaced, including adolescents and women, whether or not living in camps, as soon as conditions permit.54 Moreover, the minimum international standards on education in emergencies that recently have been developed emphasize that education must reach all groups in an equitable manner, with express reference to internally displaced populations.55 Too often, however, education is treated as a secondary need, addressed only after conflicts have subsided and the displaced have begun to return home.

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Yet, conflicts and emergencies can go on for years or even decades, leaving many IDP children to grow up without education as well as deprived of the protection and support that going to school can provide. Moreover, even when conflicts end, it may be months, even years, before IDPs are able to leave camps and other settlements and begin to rebuild their lives. Of the estimated more than 27 million children in emergencies worldwide who lack access to formal education, the vast majority are internally displaced children.56 Greater attention therefore needs to be paid to understanding and overcoming the barriers to education that IDPs so frequently face.57 These barriers include: Lack of infrastructure. In war-ravaged countries, schools often are destroyed or severely damaged. Because of conflict in Sierra Leone, for example, more than 40 percent of primary schools were destroyed, with 30 percent destroyed in the Kenema district alone. In Angola, fighting destroyed more than 1,000 schools and 24,000 classrooms during the war.58 Schools may even be specific targets for attack. In the ongoing conflict in Darfur, Sudan, schools as well as teachers have been singled out for attack as part of what Human Rights Watch has characterized as an effort “to stop a culture and prevent people from being educated.”59 Inadequate facilities. When schools do exist in IDP camps, typically they are makeshift, underresourced, overcrowded, and limited to primary education. In IDP camps visited in post-conflict Liberia, less than half of the children had access to learning opportunities. Many of the schools that had been established – often by the IDPs themselves, without government or international assistance – lacked the most basic supplies, such as blackboards, chalk, books, and even roofs.60 Schools often also are in need of repair. In Ituri province of the Democratic Republic of Congo, children are sent home when it rains because of leaky roofs.61 Another serious problem in educational facilities is the lack of clean drinking water and adequate sanitation, which puts children’s health at risk. In southern Sudan, an assessment by the Africa Educational Trust found that only one-third of more than 1,100 schools visited had latrines, and of the schools with latrines, the facilities were severely inadequate: 1 latrine for every 186 students and teachers, compared to the recommended 1:25 ratio for girls and the ratios of between 1:40 and 1:60 for boys.62 Lack of funding. In conflict situations, education commonly tends to be among the most underfunded aspects of the humanitarian response. In 2002, of the US$46 million the United Nations requested to address educational needs in humanitarian emergencies worldwide (excluding Afghanistan), only $17 million was actually contributed or pledged. None of the countries in Africa – Angola, Burundi, Democratic Republic of the Congo, Eritrea, Liberia, Sierra Leone, Somalia, Sudan, and Uganda – received even half of the funds requested, and most received less than a third. The most dramatic case was Liberia, where no funds were pledged for educational programs. In each case, the majority of the funding requests were to support education for internally displaced children and youth.63 There remains a tendency among many donors to consider education

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strictly a development activity, to be supported only when conflicts end and displaced persons return home. Such an approach can leave children in protracted emergencies without education as well as the protection and support it provides. Once a conflict ends, moreover, education is not necessarily a priority for donors. In Liberia, some eight months after the conflict ended, donors had funded only 15 percent of the education component of the UN appeal for Liberia.64 In Sierra Leone, support for education actually dropped in the first two years after the war ended, from 46 to 18 percent of the amount required.65 Safety. Where educational services are not available in IDP camps and settlements, the nearest schools may be a considerable distance, and walking to and from school may not be safe for IDP children. Traveling to school may require traversing areas strewn with landmines. It may also involve crossing checkpoints set up by military forces or other armed groups, where children may be subjected to harassment and abuse and are at greater risk of enforced military recruitment and abduction. Threats of sexual violence en route to school can make going to school too dangerous for girls. Once at school, additional safety concerns can arise. For instance, the risks of sexual assault associated with the lack of separate lavatories for girls can deter displaced girls from attending school altogether. Loss of documentation. Displacement often results in the loss or confiscation of identity documents, without which IDPs may be unable to enroll in state schools. Obtaining reissued documents can be very difficult and some countries require IDPs to return to their area of origin, even if the area is unsafe. Guiding Principle 20 affirms the right of IDPs to obtain reissued copies of documents lost in the course of displacement without having to return to their area of origin. The loss of documentation attesting to educational achievement can hamper IDPs’ education and the employment of IDP teachers. Language. Since internal displacement often occurs along ethnic lines and disproportionately affects minority groups, displaced children may not speak the local language in the areas to which they are displaced. Guiding Principle 23 affirms the right of IDPs to receive an education respectful of their culture, language, and identity. School fees. Education, as international law proscribes and the Guiding Principles reiterate, is to be free, at least at the primary level.66 In practice, it is commonplace to informally levy school fees at the primary level. Moreover, in most cases, fees officially apply at the elementary and secondary levels, at which point IDP and refugee school attendance rates plummet dramatically. It is difficult for IDP families, having lost their usual source of income, to pay school fees. While there are cases where governments take the step to waive school fees for IDP children, these policies are not necessarily applied in practice. When visiting IDP camps in Burundi, where it was national policy to waive school fees for internally displaced children, the author noticed that large numbers of children were in the camps during the school day. IDP women explained that this was because local officials expected them to pay the school fees, which they could not afford.67 The imperative to find money to pay for school fees has driven girls and women into prostitution and other exploitative sexual relationships. A 15-year-old IDP

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girl in northern Uganda explained that she and her friends had no other option if they wanted to continue going to school: “We don’t have sponsorship for schooling. This is the way we do it. We can’t dig in the fields to sell vegetables because it’s too dangerous.”68 The UN Programme on HIV/AIDS (UNAIDS) reports that in impoverished countries, most women and girls who engage in prostitution or enter into exploitative sexual relationships do so specifically to earn income to pay for school fees, either for their children, their siblings, or themselves. Abolition of primary and secondary school fees accordingly is a key recommendation to reduce the scourge of HIV/AIDS.69 This would not only make it easier for IDP and other children from impoverished families to attend school, but would also remove an important causal factor compelling displaced women and girls to sell sex and thereby put their health and physical security at even greater risk. Material requirements. Tuition fees are not the only costs that impede IDP children’s school attendance. Typically, students must also pay for their own school supplies, including pencils and books, as well as for uniforms or appropriate clothing and shoes. Students may also have to pay informal fees to teachers (whose salary, if paid at all, often is inadequate for them to survive) or school associations. These additional costs may be prohibitive for displaced families. Economic and other responsibilities. IDP children often miss school because their labor is needed at home with domestic or agricultural work or to generate income to help ensure their families’ economic survival. This is particularly true among IDP children from families with women heads of household, but also is common among IDP families generally. Girls, in particular, are burdened by household and childcare responsibilities or may have to tend to crops, either to help their mothers or assume the responsibility while their mothers seek outside work. School attrition and dropout rates are especially high among adolescent girls as family poverty and the lack of alternatives drive many out of school and into early marriage, prostitution, and situations of heightened vulnerability to sexual exploitation and trafficking. Gender barriers. As evident from examples already noted, girls in particular face barriers in realizing their right to an education. When IDP families can afford to send a child to school, they most often choose their sons. As a district education officer reported in northern Uganda: “In camps, people have no money. If a child goes to school, it’s the boy who attends.”70 Reliance on girls to carry out household chores and agricultural work typically results in girls starting school later and leaving earlier than boys. Indeed, parents may even feel that women’s traditional roles of child-rearing, tending to crops, and household responsibilities mean that girls do not need an education as much as their male siblings. Where traditional marriage practices entail a dowry being given to the girl’s parents, poverty increases the pressure for girls to be married off early, typically around age 12 or 13, after which they no longer attend school. Parents may keep their daughters at home in order to protect them from the risks of sexual and gender-based violence discussed previously that girls face going to and from school. The lack of “decent” clothing as well as sanitary supplies has caused significant school absenteeism

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among girls, especially adolescents. Moreover, even when girls are in school, gender discrimination within the classroom can hold them back: teachers tend most often to turn to girl students to carry out classroom chores such as sweeping and getting water, which they must carry out during the lessons and, as a result, miss out on learning.71 However, as the woman camp leader of an IDP camp in Sierra Leone underscored: “It isn’t only boys who should learn. Girls have to learn too. They say, if you educate a girl, you educate a nation.”72 Indeed, leading economists have concluded that educating girls may be the single most effective way to boost the economic development of countries.73 Much more needs to be done to enable IDP girls, including adolescent girls, to stay in school and have equal access to learning opportunities. Principle 23(3) of the Guiding Principles calls for special efforts toward the full and equal participation of women and girls in educational programs. The experience of displacement. IDP children who are able to overcome barriers and attend school may still face additional challenges to learning as a result of the difficult experiences they have suffered. The organization Save the Children reported to a conference on internal displacement in East Africa that even when IDP children are able to attend school, many are simply “too exhausted to realize their potential,” in particular as a result of being required to work long hours to help support their families.74 Moreover, high rates of malnutrition and psychosocial trauma can impede their ability to concentrate and learn. Bridging the gaps in education that displacement so often entails for IDP children is critical to their development, safety, and well-being. Steps that should be taken to help ensure that IDPs have access to education include: ●

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Prioritizing education for IDPs, at the earliest stages of emergencies, including by systematically providing interim educational services, such as “school in a box” kits and mobile educational programming, in IDP camps and settlements; Hiring IDP teachers, especially female teachers, to teach in IDP camps and settlements, as the presence of women can help to reassure female learners; Organizing escorts for IDP children by older children, their parents, or protection monitors to help ensure their safety walking to and from school; Reissuing documentation to IDPs who have lost their documentation so that they can register for school without having to return to their areas of origin; Advocating for the abolition of school fees at the elementary and secondary levels so that impoverished children are not turned away; Ensuring IDPs access to education in a language they understand; Sponsoring feeding programs to encourage school enrollment, help safeguard against malnutrition, and support children’s realization of their intellectual potential; Taking special measures to facilitate the school attendance of displaced girls, for example, by supplying them with clothing, soap, and sanitary material,

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●

●

●

75

building separate latrines, and providing childcare opportunities for adolescent mothers; Providing alternative schooling (like evening classes) or skills-training programs for IDP children and adolescents whose household or economic obligations impede regular school attendance; Monitoring and reporting on the availability of national and international funds available for IDPs’ education in particular countries; and Establishing scholarship programs to help fund education, including higher education, for IDP students, building on examples of such initiatives for refugee children and adolescents.

Overall, it is essential to introduce these and other such measures at the earliest stages of emergencies. Doing so is critical both to minimize the disruption in education that displacement inevitably entails and to maximize the potential protection and support that going to school can offer displaced and other waraffected children. Ensuring children’s access to education can also be key to restore and maintain peace and security in war-affected countries. In Liberia, child soldiers with whom the author spoke the day they emerged from the bush and handed in their weapons were unanimous in replying that “going to school” was what they wanted most as they began to rebuild their lives. Education is indeed an important means for rehabilitating and reintegrating child soldiers and other children abducted by fighting forces back into society. Without educational opportunities, these children remain at high risk of re-recruitment into armed groups and of turning to criminal and even terrorist activity. Skills-training and income-generating opportunities A key challenge facing displaced women, and one which only increases when conflict ends and humanitarian assistance begins to be phased out, is the need to generate an income to support themselves and their families. This is especially critical for the large number of displaced women who become heads of household and the sole caretakers of their families. Guiding Principles 22 and 23 affirm that women have the right to employment, to participate in economic activities, and to receive training as soon as conditions permit. Providing women with such opportunities is important not only for supporting displaced persons’ self-reliance but also for reducing the economic pressures that increase displaced women’s vulnerability to sexual exploitation or force them into prostitution in order to ensure their families’ survival. What bears underscoring is thast it is not enough simply to ensure that there exist skills-training and income-generating projects for displaced women, but that these activities are economically meaningful. Too often, the programs designed for women have relegated them to activities such as soap-making, tie-dye, and handicrafts, which bring in little income and have a limited market. Instead, displaced women need access to viable economic activity that would enable them to support themselves and their families. Displaced women in a number of countries

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have shown themselves adept at working in nontraditional activities such as carpentry, masonry, road-building, reforestation, and other activities critical to rebuilding war-torn countries.75 Women must be encouraged and supported to engage in these areas of work. One way of promoting women’s participation in such activities has been to introduce gender clauses into quick-impact projects that international agencies and nongovernmental organizations often sponsor to support the reintegration of refugee and internally displaced persons. These clauses specify that women workers will receive equal pay with men and set benchmarks for women’s equal participation. Another option is to introduce quick-impact projects specifically designed for women. In either case, women and adolescent girls must be supported, for instance with childcare facilities, to participate in such skills-training and employment activities.76 Consultation with the displaced, including women, in the design of these projects is key to ensure that the projects are relevant to the income-generating needs of the displaced. In Rwanda, displaced women that returned to their village after the genocide jointly identified priorities and worked together to build a road from their village to the capital Kigali. The new road reduced the amount of time it took to travel from the village to the capital from 3 hours to only 20 minutes, thereby increasing opportunities for these women to market goods and have access to other income-generating opportunities.77 Indeed, many displaced women demonstrate extraordinary entrepreneurial skills in the most trying circumstances. To support these skills, programs providing women credit to start their own small businesses are critically important. Gender discrimination often limits women’s opportunities to access credit programs. Special attention must be paid to ensure that women have equal access to credit opportunities. In particular, micro-credit (smallscale lending requiring little or no collateral) programs for displaced women are needed. Typically, with just a small amount of credit, women are able to create the type of small businesses that, as one analyst pointed out, “can make the difference between absolute dependency and the ability to become self-supporting, or at least to meet the daily subsistence needs of their families.”78 Moreover, in addition to alleviating women’s poverty and thereby reducing their vulnerability to sexual and other types of exploitation, microfinance programs pay tremendous dividends in improving the social status of women. Studies show that women who have access to microfinancing get more involved in family decision-making, suffer less domestic violence, are more politically and legally aware, and participate more in public affairs than other women.79 Land and property rights for women Ensuring the right of women to inherit, own, and purchase land and property also is important for the long-term economic self-reliance, security, and reintegration of refugee and internally displaced women. In Africa, while women are

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the primary source of agricultural labor, many women who have fled return as widows and face difficulty obtaining access to their land and property as a result of customary laws and practices that favor men in property ownership and inheritance. This was a significant problem in Rwanda for the many displaced widows, seeking to return home after the genocide, who were legally barred from inheriting land left by their deceased husbands or parents. A similar restriction undermined the return and reintegration of internally displaced and refugee women in Burundi.80 In Sudan, where customary law also prescribes that land is inherited by the male relative, widowed women without sons may be compelled to marry their deceased husband’s relative in order to have access to land and property. Without the ability to own and access land, women heads of household face great difficulty in providing for their families and, without the means to be self-reliant, also are at greater risk of exploitation and abuse. The Representative of the United Nations Secretary-General on Internally Displaced Persons has called on governments to adopt legal measures to address the problems faced by returning internally displaced women, including property and inheritance rights.81 The Fourth World Conference on Women reiterated this recommendation.82 It was also affirmed at the 1995 Regional Conference on the Legal Status of Refugee and Internally Displaced Women in Africa, which gave special attention to the issue of women’s property and inheritance rights.83 In the decade that has followed, certain progress has been made in legal recognition of women’s rights in Africa. In Rwanda, advocacy by local women’s groups along with international agencies eventually pressed the government to remove the restrictions on women’s property rights from national legislation. In Liberia, at the urging of local women’s groups as well as the UN Special Rapporteur on Violence Against Women, legislation was amended to extend to women married under customary law the same inheritance rights enjoyed by women married in a civil law ceremony.84 Coming just months after the signing of a peace agreement, this development was most timely in that it occurred in advance of the return process for refugee and internally displaced populations. Of broader significance throughout Africa, the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa affirms that a widow has the right to an equitable share in the inheritance of the property of her husband and of her parents.85 Legal reform to protect women’s property and inheritance rights is, of course, only the first step. When national legislation is changed to safeguard women’s property rights, there still is a need for awareness raising to ensure its implementation. Indeed, special efforts will be required to ensure that refugee and IDP women are informed of their rights. In countries with high rates of illiteracy among women, creative means of disseminating this information, such as through radio programming and drama, can prove useful to reach women who cannot read. Civil society, in particular local women’s groups and associations of women lawyers, should have a strong role in these awareness-raising campaigns as well as in monitoring the implementation of laws and taking up cases where displaced women are denied the right to own and inherit land and property in national courts.

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Conclusion In conclusion, greater attention should be devoted to addressing the protection, assistance, and reintegration needs of displaced women and children in the aftermath of conflict. The Guiding Principles on Internal Displacement give specific attention to these needs and can be a useful tool to press for effective national as well as regional and international responses to address them. Moreover, efforts to increase attention on the particular situation of displaced women and children will be most effective when displaced women and children are viewed not as victims, but instead are listened to and are actively engaged in developing and implementing strategies to address their needs, protect their rights, and build their skills and capacities. Viewed in this way, important opportunities exist in crisis and postconflict situations to promote their economic, social, and political empowerment. Indeed, because women and children represent such a powerful potential force for reconciliation, this may prove a most valuable means of promoting sustainable peace and development in the long run.

Notes 1 UNIFEM/UNICEF, Reproductive and Mental Health Issues of Women and Girls Under Situations of War and Conflict in Africa. Nairobi, 1994, p. 14. 2 One sign of this increased awareness has been the attention given to these issues in the UN Security Council, where there has been a specific agenda item addressing the protection of children affected by armed conflict since 1999 (UN Resolution 1261 of August 25, 1999) and, since 2000, one concerning the impact of conflict on women (UN Resolution 1325 of October 31, 2000). Special attention has been devoted to the situation of refugees, returnees and IDPs in Africa, with the Council expressing concern that the majority are women and children and underscoring “the need to intensify efforts to meet their special protection needs.” Statement by the President of the Security Council, UN doc. S/PRST/2000/1 ( January 13, 2000), p. 1. 3 Julie Mertus, “Sovereignty, Displacement and Gender,” in Edward Newman and Joanne van Selm (eds.), Refugees and Displacement: International Security, Human Vulnerability and the State. Tokyo: United Nations University Press, 2003, p. 251. 4 Norwegian Refugee Council Global IDP Project, Internal Displacement: A Global Overview of Trends and Developments in 2003. Geneva, 2004, p. 12. 5 Peter Salama, Paul Spiegel, and Richard Brennan, of the Epidemic Intelligence Service and International Emergency and Health Branch, National Center for Environmental Health, Centers for Disease Control and Prevention, and the Health Unit of the International Rescue Committee, “No Less Vulnerable: The Internally Displaced in Humanitarian Emergencies,” The Lancet 357 (No.9266) (May 5, 2001). 6 Roberta Cohen, “Reintegrating Refugees and Internally Displaced Women,” Conference on Intrastate Conflicts and Women, sponsored by the US Agency for International Development, Washington, DC, December 12, 2000. 7 Guiding Principles on Internal Displacement, Report of the Representative of the Secretary-General on Internally Displaced Persons, Francis M. Deng, UN doc. E/CN.4/1998/53/Add.2 [available online at http://www.unhchr.ch/html/ menu2/7/b/principles.htm]. 8 See for example, UN General Assembly Resolution 58/177 (2004), para. 7 and UN Commission on Human Rights resolution 2004/55 (2004), para. 6.

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9 Report of a Workshop on Internal Displacement in Africa, held in Addis Ababa, Ethiopia, cosponsored by the Brookings Institution, UNHCR and the Organization for African Unity, October 1998, reproduced as UN doc. E/CN.4/1999/79/Add.2. 10 Follow-Up Conference to the International Migration Policy Conference for East Africa, the Horn of Africa and the Great Lakes Region: Summary Report and Conclusions, International Migration Policy Programme ( June 2003). 11 See United Nations, Report of the Representative of the Secretary-General on Internally Displaced Persons, Francis M. Deng, to the Commission on Human Rights at its 59th Session, UN doc. E/CN.4/2003/86 ( January 21, 2003), para. 32. 12 Khartoum Declaration, Appendix E in Conference on Internal Displacement in the IGAD SubRegion. Report of the Experts Meeting. Khartoum, Sudan, 20 August – 2 September 2003. Brookings Institution-SAIS Project on Internal Displacement, 2003. 13 Draft Policy to Address the Needs of Internally Displaced Persons in SPLM/A Controlled Areas, reproduced in Appendix M of Seminar on Internal Displacement in Southern Sudan, Rumbek, Sudan, November 25, 2002 (Brookings Institution-SAIS Project on Internal Displacement and UNICEF), February 2003. 14 Roberta Cohen, “The Guiding Principles on Internal Displacement: An Innovation in International Standard Setting,” Global Governance 10, 471 (2004). 15 Guiding Principles, Principle 3(2) and Principle 4(2). 16 Guiding Principles, Principle 18(3) and Principle 28(2). 17 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women adopted by the African Union, July 11, 2003, Article 10. 18 Profiles in Displacement: Burundi, Report of the Representative of the Secretary-General on Internally Displaced Persons, Francis M. Deng, UN doc. E/CN.4/1995/50 (February 2, 1995), para. 29. 19 Report of the UN High Commissioner for Human Rights, UN doc. E/CN.4/2005/3 (May 7, 2004), para. 23. 20 Author’s notes, field visit to Liberia, April 20–29, 2004, as part of a delegation of the Women’s Commission for Refugee Women and Children. 21 Roberta Cohen, Statement on “Reintegrating Refugees and Internally Displaced Women.” 22 Out of Sight, Out of Mind: Conflict and Displacement in Burundi. Women’s Commission for Refugee Women and Children, October 2002, p. 9. 23 Ibid., p. 12. 24 Judy El-Bushra and Kelly Fish, “Protecting Vulnerable Groups: Refugees and Internally Displaced Persons,” in Lis Porter (ed.), Inclusive Security, Sustainable Peace: A Toolkit for Advocacy and Action. Women Waging Peace and International Alert, Cambridge, MA, 2004, p. 9. 25 United Nations, Report of the Secretary-General on Women and Peace and Security, UN doc. S/2004/814 (October 13, 2004), para. 28. 26 Ibid., para. 28. 27 African Community Resource Center, Campaign to Include African Women in the Peace Process, brochure (undated). 28 UN Security Council Resolution 1325 adopted on October 31, 2000, UN doc. S/RES/1325 (2000). 29 In Africa, the UN Division for the Advancement of Women of the Department of Economic and Social Affairs sponsored a multiyear program that has provided technical support and training in negotiation and mediation skills to some 70 women. In Somalia, UNIFEM helped women organize across clan lines to outline a common agenda for women’s role in peace and reconstruction. UN S/2004/814, p. 6. 30 Out of Sight, Out of Mind, pp. 9–10. 31 Peace Agreement between the Government of Liberia, the Liberians United for Reconciliation and Democracy (LURD), the Movement for Democracy in Liberia (MODEL) and the political parties, signed on August 18, 2003 in Accra, Ghana [available online at http://www.state.gov/p/af/rls/24149pf.htm].

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32 Kemi Ogunsanya, “A Woman’s Voice” [available online at http://womenwagingpeact.net/ content/articles/0301a.html] accessed on April 2005. 33 Women Waging Peace and International Alert, Inclusive Security, Sustainable Peace: A Toolkit for Advocacy and Action (2004) [available online at http://www.womenwagingpeace.net/toolkit.asp] accessed on May 2005. 34 Women Waging Peace – Peace in Sudan: Women Making the Difference Recommendations (October 2004) [available online at http://www.womenwagingpeace.net/content/articles/ SudanRecommendations.pdf ] accessed on May 2005. 35 Email from Sudanese refugee woman peace activist, December 2004. 36 Memo by Christen Sewell, Brookings Institution – University of Bern Project, February 24, 2005 on the meeting on “Sudanese Women: Untapped Resource for Stability and Reconstruction,” Woodrow Wilson Center, Washington, DC, February 23, 2005. 37 Protocol to the African Chaster on Human and Peoples Rights on the Rights of Women in Africa, entered into force July 21, 2003. 38 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, Article 10. 39 Caught in the Crossfire No More: A Framework for Commitment to War-Affected Children, Summary by the Chairs of the Experts’ Meeting, September 13–15, 2000, at the International Conference on War-Affected Children, held in Winnipeg, Canada, p. 8. 40 United Nations, Report of the Secretary-General to the Security Council on the Protection of Civilians in Armed Conflict, UN doc. S/2004/431 (May 28, 2004), para. 53. 41 United Nations High Commissioner for Refugees (UNHCR), Handbook on Voluntary Repatriation: International Protection. Geneva: UNHCR, 1996. 42 UNHCR, Guidelines on the Protection of Women Refugees. Geneva: 1991. 43 United Nations, Report of the International Commission of Inquiry on Darfur to the UN SecretaryGeneral. (Geneva: January 25, 2005), p. 3 and paras. 333–353. 44 Susan Forbes Martin, Refugee Women, 2nd edn. Lanham, MD: Lexington Books, 2004, p. 108. 45 Lydia Polgreen, “Darfur’s Babies of Rape Are on Trial From Birth,” New York Times (February 11, 2005). 46 UNHCR, Sexual and Gender-Based Violence against Refugees, Returnees and Internally Displaced Persons: Guidelines for Prevention and Response. Geneva, 2003. 47 Erin Mooney, “Internal Displacement and Gender,” Presentation to the Humanitarian Principles Workshop: Focus on a Child Rights Approach to Complex Emergencies and Internal Displacement, Brussels, October 1, 1998 [available online at http:// www.reliefweb/int]; and Mary Anne Fitzgerald and Shep Lowman, “Protect Refugee Women as They Gather Firewood,” International Herald Tribune (August 27, 1998). 48 Marc Lacey, “In Congo War, Even Peacekeepers Add to Horror: Girls Describe Sexual Assaults at Hands of U.N. Soldiers,” New York Times (December 18, 2004), p. A1. 49 See Nora Boustany, “Eyewitnesses to Atrocities Along Frontier of Chad and Sudan,” Washington Post ( June 30, 2004). 50 Guiding Principles, Principle 19. 51 United Nations. Humanitarian Appeal 2004 for Liberia. November 2003. 52 Authors’ notes, field-visit to Liberia, April 2004. 53 Learning in a War Zone: Education in Northern Uganda. Women’s Commission for Refugee Women and Children (February 2005), p. 2. 54 Principle 23, Guiding Principles on Internal Displacement, UN doc. E/CN.4/1998/52/ Add.2, February 11, 1998. 55 Minimum Standards for Education in Emergencies, Chronic Crises and Early Reconstruction (Interagency Network on Education in Emergencies, 2004), p. 75. 56 Global Survey on Education in Emergencies. Women’s Commission for Refugee Women and Children (February 2004), pp. iii and 9.

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57 Erin Mooney and Colleen French, Barriers and Bridges: Access to Education for Internally Displaced Children ( January 2005) [available online at http://www.brookings.edu/fp/ projects/idp/20050111_mooney.htm]. 58 Global Survey, p. 24. 59 Emily Wax, “Targeting the Teachers of Darfur,” Washington Post (August 18, 2004), p. A12. 60 Author’s notes, field-visit to Liberia, April 2004. 61 OXFAM, Under Fire: The Human Cost of Small Arms in North-East Democratic Republic of Congo (2001), cited in Global Survey, p. 40. 62 Global Survey, pp. 23–24, citing Interagency Network on Education in Emergencies (INEE), “School Environment and Supplies: Water and Sanitation,” INEE Good Practice Guide (2002). 63 Global Survey, pp. 24–25. 64 United Nations, Liberia, 2004 Consolidated Appeals Process Mid-Year Review (2004), p. 23. 65 Global Survey, p. 62. 66 See in particular, Universal Declaration of Human Rights, Article 26; International Covenant on Economic, Social and Cultural Rights, Article 13(2)(a); and Convention on the Rights of the Child, Article 28(1)(a). 67 Profiles in Displacement: Forced Relocation in Burundi. Report of the Representative of the Secretary-General on Internally Displaced Persons, UN doc. E/CN.4/2001/5/Add.1, March 6, 2000, para. 25. 68 Emily Wax, “In Uganda: Terror Forces Children’s Nightly Flight,” Washington Post (February 13, 2004). 69 “Women and HIV: The New Face of AIDS,” Economist (November 27, 2004), p. 82. 70 District Education Officer in Kitgum, cited in Learning in a War Zone, p. 5. 71 Learning in a War Zone, p. 6. 72 Voting for Peace, Survival and Self-Reliance: Internally Displaced Women Go to Polls in Sierra Leone. Women’s Commission for Refugee Women and Children (September 2002), p. 4. 73 Isobel Coleman, “The Payoff from Women’s Rights,” Foreign Affairs (May/June 2004), pp. 82–83. 74 Conference on Internal Displacement in the IGAD Sub-region, p. 12. 75 See for example, Roberta Cohen, Refugee and Internally Displaced Women: A Development Perspective. Brookings Institution-Refugee Policy Group Project on Internal Displacement (November 1995), pp. 23–25. 76 Ibid. 77 Memo by Kate Brantingham, Brookings-SAIS Project on Internal Displacement, on the discussion following the screening of God Sleeps in Rwanda, a film by Kimberlee Acquaro, at the Woodrow Wilson Center, Washington, DC, November 9, 2004. 78 Roberta Cohen, “Protecting Internally Displaced Women and Children,” in Wendy Davies (ed.), Rights Have No Borders: Worldwide Internal Displacement. Oslo: Norwegian Refugee Council/Global IDP Survey, 1998, pp. 72–73. 79 Coleman, “The Payoff From Women’s Rights,” p. 85. 80 Burundi: Profiles in Displacement. Report of the Representative of the Secretary-General on Internally Displaced Persons, UN doc. E/CN.4/1995/50/Add.2 (November 28, 1994), para. 76. See also Out of Sight, Out of Mind, pp. 30–31. 81 Burundi: Profiles in Displacement, para. 107. 82 General Assembly, Platform for Action, Fourth World Conference on Women, A/CONF/.177/L.5/Add. 9 (United Nations, September 13, 1995). 83 Regional Conference on the Legal Status of Refugee and Internally Displaced Women in Africa in Africa, Addis Ababa, August 1–4, 1995. 84 An Act to Govern the Devolution of Estates and Establish Rights of Inheritance for Spouses of Both Statutory and Customary Marriages (October 7, 2003). Published by the Ministry of Foreign Affairs, Monrovia, Liberia, December 1, 2003. 85 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, Article 21.

Part II

Impact of conflict on women and children

5

The impact of civil war on women and children in Africa Meredith Turshen

Introduction This chapter explores the impact of civil war on women and children. It assumes that women and children have agency and are not simply victims of war, and it focuses on the impact of civil war on combatants and noncombatants alike. After a brief introduction differentiating the effects of liberation struggles, interstate wars, and civil conflicts, the chapter focuses on civil wars, which are particularly destructive to society. In civil war, a group adopts a distinguishing identity (ethnic, religious, or political) and uses it to turn on its neighbors, disrupting more than the economy and polity. Identity conflicts have long-term consequences, no matter which side wins or whether a power-sharing solution is reached. Though important, we do not well understand the long-term implications of the range of wartime experiences – positive and negative, seemingly contradictory – in the transformation of war-torn societies. For example, some women develop a newfound sense of competence and self-reliance, emerging as leaders during conflict; others tell of despair, mistrust, and a deepened sense of insecurity. Some children are candid about the excitement and adventure of conflict; the events deeply traumatize other children who find readjustment extremely difficult, belying the belief that children are resilient and recover quickly. How to repair adequately a postconflict society raises many questions. What is the import of these varied responses for reconciling communities and reconstructing countries? What structures do communities need in order to consolidate the gains some women make when men are away, and what services do women require to help cope with their losses? What activities can channel children’s energy into constructive study and work? What preventive measures are necessary to avoid the pitfalls of prostitution, petty criminality, exploitation, and exposure to street life? To be clear about the magnitude of the impact of civil war on women and children in Africa, one must look at the population statistics. Children under 15 years of age comprise around 45 percent of the population in most African countries; women aged 15–64 years comprise about 25 percent. Together the figures are roughly 70 percent for most African countries (see Table 5.1). In comparison, the equivalent figures for the United States and the United Kingdom are 54 percent and 51 percent respectively.

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Meredith Turshen Table 5.1 African women and children Percentage of the population, 2003 Angola 69 Burundi 71 Congo (Kinshasa) 73 Côte d’Ivoire 71 Eritrea 70 Ethiopia 70 Liberia 70 Mozambique 69

Niger Rwanda Senegal Sierra Leone Somalia Sudan Uganda

72 70 70 71 71 71 74

Source: www.cia.gov

Clearly, a significant proportion of women and children are at risk when conflict breaks out. To gauge the extent of the risk in geographical terms, note that contemporary African conflicts stretch from Algeria to KwaZulu, Natal, and from Casamance to Mogadishu, touching nearly half of all African countries. The cumulative effect of war over time is staggering. Between 1945 and 1992 an estimated 6.5 million Africans died in wars, 70 percent of them were civilians.1 The death toll in current wars is much higher; since 1998, an estimated 3–4 million people have died in the Congo alone. The duration of some African wars is also exceptional: some conflicts have lasted 30 or 40 years (Chad, Sudan). The concomitant relocation effects of war are dramatic: most conflict have displaced millions of people (half the country’s population in Liberia, Rwanda, and Somalia). Almost all current African conflicts are internal, though they spill into neighboring states, and some places, like the Congo, receive troops from the many nations that send aid to one side or another. Population movements in war-torn societies create humanitarian crises of internally displaced persons and refugees as well as public health problems ranging from environmental hazards that include landmines to disease epidemics like AIDS, malaria, and tuberculosis. Thus, the impact of civil war on women and children involves huge swaths of the African continent and several generations for whom armed conflict is an everyday experience. This “normalization” of war is appalling. That most conflicts are described as civil wars, implying either that “ancient tribal hatreds” or “scrambles for scarce resources” are at the root of these conflicts, is a crude form of victim blaming. The fact that international economic policies created many of the conditions for conflict, and that many of these wars have Cold War antecedents have been unconscionably – and conveniently – forgotten.

The gender dimensions of conflict The gender dimensions of these conflicts have come to international attention since 1993, when the systematic rape of Bosnian women provoked an outcry and action at the Second World Conference on Human Rights in Vienna.2 The trend

Impact of civil war on women and children 87 of war affecting more women and children has been growing in the twentieth century and might have occurred earlier than commonly identified. For example, war tolls shifted from 90 percent of deaths among troops before the First World War to 90 percent of deaths among civilians after the Second World War. It is not easy to obtain hard data to corroborate this shift, but the figures from both world wars bear out this trend (see Table 5.2). Scholars do not usually specify the gender change in this trend: the burden of death has shifted from male troops to women and children who make up most of the civilian population. The type of conflict is another way to deconstruct the trend from troop deaths to civilian deaths. The four types of collective violence are as follows: genocide, international wars, internal wars, and terrorism (ranked in descending order of lethality) (see Table 5.3).3 Death rates are highest in genocidal wars: in Rwanda, an estimated 800,000 died during the 1994 genocide, which is an annual death rate of 44 percent. Put another way, approximately 11 percent of the population died, raising the crude death rate from 172 per 10,000 per year (before 1994) to 4,266 per 10,000 per year (in 1994). Deaths in international wars fall into two categories: troops (note that the percent killed has fallen dramatically since the Second World War) and civilians (the highest recorded figure is 5 percent of Korean civilians from 1951 to 1953). About three times more soldiers than civilians die in international wars. It is unknown whether more civilians die in international wars than in internal wars because it is difficult to distinguish soldier and civilian deaths in internal wars, though it appears that the civilian risk of death in international wars is half again as high as the risk of death in internal wars. In the three internal wars in Africa for which there are data – Burundi (1993–98), Sudan (1982–96), and Sierra Leone (1997–99) – the crude death rate was lower than the baseline rate, which is the Table 5.2 War dead

Troop deaths Civilians deaths

First World War (millions)

Second World War (millions)

8.6 6.9

17.3 20.3

Source: Garfield and Drucker (2002).

Table 5.3 Deaths in wartime Ranked in descending order of lethality ● ●

● ●

Genocide International wars (three times more troops than civilians die) Internal wars (troops and civilians combined) Terrorism

Source: Garfield and Drucker (2002).

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expected death rate in the absence of war.4 Terrorism appears to have a greater psychological than demographic impact. In the decade of Islamist terror in Algeria (1992–99), an estimated 60,000–100,000 people died, but the crude death rate remained far below the baseline. One obvious consequence of the higher mortality among adult men is more widows (see Table 5.4) and more female-headed households. The percentage of widows is far higher in Africa than in industrial countries regardless of conflict because of polygamy, age differences between spouses, and a shorter life expectancy for men than women; war accelerates this trend. The available data for household heads who are women show that the figure of 42 percent for southern African household is the highest in the world (see Table 5.5). The fate of children in wartime Much has been written about child soldiers, although their numbers – an estimated 300,000 under the age of 18 worldwide – represent a tiny proportion of children affected by war. It is especially difficult to find information on the plight of the girl child in war-torn countries. Two salient measures – the deaths of children before the age of 5 (see Table 5.6) and the impact of AIDS on children (see Table 5.7) – are not broken down by sex. The International Labor Organization notes that child trafficking in some African countries is related to armed conflict.5 The pattern involves the abduction Table 5.4 Widowhood Percentage, 1985–97 Age group Northern Africa Sub-Saharan Africa USA (1991/97)

45–59

60

19 16

59 44 34a

Source: UN 2000. Note a 55.

Table 5.5 Household heads who are women Percentage, 1985–97 Northern Africa Southern Africa Rest of Sub-Saharan Africa Source: UN 2000. Note a World’s highest figure.

12 42a 21

Impact of civil war on women and children 89 Table 5.6 Under five mortality in war-torn countries Per 1000 live births, 2001 Sub-Saharan Africa (average) 173 Angola Congo Eritrea Ethiopia Liberia Mozambique

260 205 111 172 235 197

Rwanda Sierra Leone Somalia Sudan Uganda

183 316 225 107 124

Source: UNICEF 2003.

Table 5.7 Children and HIV/AIDS in war-torn countries Ages 0–14

Angola Congo Eritrea Ethiopia Mozambique Sierra Leone Sudan Uganda

Children living with HIV/AIDS

Children orphaned by HIV/AIDS

37,000 170,000 4,000 230,000 80,000 16,000 30,000 110,000

100,000 930,000 24,000 990,000 240,000 42,000 62,000 880,000

Source: UNICEF 2003.

and transportation of children for and by government and rebel militias. The evidence includes armed forces and exploiters, which take advantage of the social disruption and family breakup that conflict causes, selling girls into brothels. When war destroys their homes and communities, many children perceive armed groups as their best chance for survival.6 Others seek escape from poverty or join military forces to avenge family members who have been killed. Because of their immaturity and inexperience, child soldiers suffer higher casualties than adults. Even after the conflict is over, they may be physically disabled or psychologically traumatized. Frequently denied an education or the opportunity to learn civilian job skills, many find it difficult to rejoin society. Schooled only in war, crime often draws former child soldiers or they become easy prey for future recruitment. Collective trauma The direct effects of conflict, which lead to collective trauma, are the destruction of homes, schools, workplaces, and infrastructure. The cumulative effects, which reinforce and prolong trauma, are wide-scale death and disability, and the loss of human capital. Emergent effects like scapegoating, rejection of rape victims and “war babies,” and ongoing violence against women also result.

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The interactions of direct, cumulative, and emergent effects, which exacerbate suffering, are important to trauma recovery. Also important are certain transgenerational effects like the creation of cultural narratives, the creation of identities of victimization, the lineage of “war babies” in patrilineal cultures, and the rejection of raped women and their children, all of which carry the trauma to later generations. Feminists criticize the models of treatment for trauma victims, which psychiatrists originally developed to treat (mostly male) combatants after the Vietnam War.7 Psychiatrists base this treatment, which includes medication, early intervention, desensitization, and cognitive behavioral techniques, on the definitions and symptoms of posttraumatic stress disorder (PTSD). The medical community revised the definition of PTSD in 1994 as follows: “The person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury or a threat to the physical integrity of self or others and which evoked intense fear, helplessness or horror.”8 This definition broadens traumatic exposure well beyond the original concept, which described an individual’s reaction to discrete violent incidents as related to one’s self and one’s comrades. PTSD accounts for short-term, acute trauma (e.g. motor vehicle accidents and single incidents of assault), but it does not account well for prolonged, repeated trauma (e.g. sustained child sex abuse, concentration camp life, long-term domestic violence, war, and torture). While PTSD accounts for individual trauma like accidents, assaults, and single acts of rape, it does not account well for collective trauma such as ethnic cleansing, death squads, disappearances, war, and terrorism. In considering the impact of civil war on women and children, the collective aspects of trauma are of greatest concern. The social and cultural order embeds civilians (mostly women, children, and the elderly), and the trauma they experience is related to the disruption of relations The immediate effects are population displacement, family breakup, village destruction, insecurity, and human rights abuses. Long-term effects include the loss of traditional life; unraveled social roles, social structures, rituals, and other social arrangements; silenced victims and witnesses; and a loss of trust. Specific gender issues are important and derive from the fact that a definition of women’s well-being (more so than men’s) is linked to having a social place; social dislocation has a greater impact on women’s access to material resources, social status, and power. Treatment for trauma needs to take account of women’s issues like fertility/infertility, contraceptive use, and protection against HIV and sexually transmitted diseases, as well as certain traditional beliefs like the beliefs that rape is “spirit injury,” women are property, raped women are “damaged goods,” female sexuality is a commodity, and rape dishonors the family. Treatment needs to be “engendered.” The medical model, which is suited to male combatants in need of care who can be identified in the command structure and for whom veterans’ facilities may be available, is not helpful to most women and children in war-torn African countries, as it is difficult to seek and receive

Impact of civil war on women and children 91 treatment (especially for rape). The social model of treatment, which focuses on social reconstruction, the re-establishment of economic networks, and reparations, is more useful.

Three levels of analysis There are three levels on which to analyze the impact of civil conflicts on women and children in Africa: the familiar fallout of war, the historical legacies of conflict, and the altered political environments in which women in war-torn societies live. The fallout of war The fallout of war is the stuff of daily headlines from the frontline. On this level of immediate consequences, news stories discuss the impact of economic, social, and political violence on civilians, the displacement of populations, the destruction of civilian infrastructure, the physical and psychological insecurity, and the sexual abuse and exploitation of women and girls (e.g. 85 percent of conflict zones report the trafficking of women and girls).9 All of this plays out against a background of two decades of increasing poverty among Africans and the feminization of poverty in Africa. The consequences of conflict for women in war-torn societies are increased numbers of widows, increased household responsibilities for women, and increased poverty (see Table 5.8) A concomitant of poverty and the disruption of food production and markets is increased food insecurity, which leaves women and children weakened and susceptible to disease (see Table 5.9). There are also some small gains from conflict: expanded public roles for some women, a growing number of women’s associations (most for self-help in the absence of state services), and more international contacts with women’s organizations abroad. For example, Mozambican women took charge of local political institutions in the absence of men.10 In Rwanda, women participated in the distribution of food aid; their leadership in microcredit activities of rural women’s associations led to the elections of women in local Rwandan government councils.11 Despite the size of the problems and the duration of these wars, there are few details on health conditions apart from the AIDS epidemic (the focus was only Table 5.8 Poverty in war-torn countries GDP per capita, 1998 (Poverty: less than $2 per day, $730 per year) Sub-Saharan Africa (average) $1,607 Sierra Leone Burundi Ethiopia Rwanda

458 570 574 660

Sources: UN and World Bank reports.

Mozambique Congo Eritrea Chad

782 822 833 856

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Table 5.9 Food insecurity in war-torn countries Daily calorie supply per capita, 1997 Sub-Saharan Africa (average) 2,237 Angola Burundi Chad Congo Eritrea

1,903 1,685 2,032 1,755 1,622

Ethiopia Mozambique Rwanda SierraLeone

1,858 1,832 2,056 2,035

Source: UNDP Human Development Report 2000.

Table 5.10 Health profiles Cases per 100,000 people, 1997

Angola Burundi Eritrea Ethiopia Mozambique Rwanda

TB cases

Malaria cases

AIDSa

123.8 61.0 243.6 97.4 103.2 79.3

8,796 48,528 3,440 635 18,108 20,310

2.12 8.30 3.17 9.31 14.17 12.75

Sources: WHO reports. Note a Adult rate.

recently widened to include tuberculosis and malaria; see Table 5.10). According to World Health Organization estimates, up to 30 percent of the 960,000 annual deaths due to malaria in Africa occur in countries affected by complex emergencies.12 The chance of contracting malaria increases with serious conflict, war, or natural disasters that may result in large displacements of people. Displaced populations are more vulnerable to malaria because they have poor nutrition, multiple infections, and high stress levels, and because they may be forced to live in untreated, malarious environments, as for example refugees in Congolese forests. We suspect that war-torn societies experience dramatic demographic changes in both the size and structure of populations, especially when deaths exceed births. In war-torn countries, women’s life expectancy falls (see Table 5.11) and deaths in childbirth rise (see Table 5.12) as the number of births attended by trained personnel shrinks (see Table 5.13). An estimated 25 percent of refugees and internally displaced persons are women of reproductive age, and 1 in 5 is likely to be pregnant.13 There are too few assessments of these consequences of war and much of the available data is not current. Conflicting estimates of mortality and morbidity are part of the propaganda of warring sides, and unbiased sources usually do not collect health and population data in wartime.

Impact of civil war on women and children 93 Table 5.11 Female life expectancy in war-torn countries Sub-Saharan Africa (average) 50.3 years Angola Burundi Chad Congo Cote d’Ivoire Mozambique Sierra Leone

41.6 41.0 45.7 41.7 42.1 40.9 35.8

Sources: UNICEF and WHO reports.

Table 5.12 Maternal mortality rate Per 100,000 live births, 1995 Sub-Saharan Africa (average) 980 Angola Burundi Chad Cote d’Ivoire Eritrea

1,300 1,900 1,500 1,200 1,100

Ethiopia Rwanda Sierra Leone Uganda

1,800 2,300 2,100 1,100

Sources: UNICEF and WHO reports.

Table 5.13 Births attended by skilled health staff Percentage of total, 1990–96 Sub-Saharan Africa (average) 38 Angola Burundi Chad Ethiopia

15 19 15 14

Mozambique Rwanda Sierra Leone Somalia

25 26 25 2

Sources: UNICEF and WHO reports.

Historical legacies of conflict Analysis of the Cold War roots of African conflicts is rare – in Africa, many conflicts are rooted in the cold war, as many were proxy wars for the two superpowers.14 History is too soon forgotten, and convenient rationalizations like overpopulation, ancient ethnic enmities, and competition for scarce resources are too often substituted for historical analysis. At the beginning of April 2004, the media were full of remembrances of the Rwandan genocide, with most rehashing the simplistic explanation of ancient ethnic enmities – Hutu versus Tutsi. It is not that scholars have failed to analyze the conflicts,15 but that many journalists persist in spreading inaccuracies. In fact the Rwandan genocide is better

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explained by the events of the previous decade, which include drought, the failure of coffee exports, the imposition of austerity and economic reforms by the IMF and World Bank, and the invasion of the Rwanda Patriotic Front (RPF) from Uganda beginning in 1990.16 News from the Congo is scarce, unless a massacre makes the headlines. Shearer, writing in the scholarly journal, Survival, notes that Mobutu was a western ally in the contest with communist aspirations in Central Africa.17 And Raoul Peck’s film about Lumumba reminds viewers of the CIA’s role in Mobutu’s 1966 coup. But most writers treat the episode as history, not as relevant background to the systematic rape of women in the current conflict.18 Since the outbreak of fighting in the Congo in August 1998, at least 3.3 million people, mostly women, children, and the elderly, have died, the majority from disease and starvation; and the conflict has driven more than 2.25 million people from their homes, many beyond the reach of humanitarian agencies. The current policies of the remaining superpower magnify the importance of knowing the historical legacies of conflict. The United States has adopted a policy of preemptive war as well as a strategy of using military solutions to confront its problems. We can expect more conflict in the drive to secure access to resources like oil. By encouraging conditions that strengthen the military, the US government subverts the reduction of conflict and undermines democratic forms of government.19 A final reason to keep the historical legacies in mind is the tendency to depoliticize war, especially when discussing women and children who are regarded as victims of war requiring humanitarian responses. Aid agencies like UNICEF believe that women and children should be protected from war, as if conflicts were the affairs of adult men only. But women have fought in wars of liberation, and children and youth have led uprisings like the Soweto rebellion against the apartheid regime of South Africa in 1976. The historical context enables us to separate proximate struggles from the ultimate geopolitical causes of war. Altered political environments There is a third level of analysis, a sort of meta-level of long-term consequences that alter women’s lives. The way war changes political environments needs far more analysis. We know that war damages the physical environment, and this has a long-term impact on women’s lives. We know that the military pollutes the physical environment and that this affects women’s reproductive health. Damage to the natural environment is long term. Military operations destroy wildlife habitats and contaminate land, air, and water, affecting food supplies. Chemicals and radioactive materials cause damage that can last for generations as these substances remain in the environment. Farmers and herders, who are often women and children, suffer when landmines transform fields and pastures into danger zones. Vietnamese women exposed to Agent Orange suffered miscarriages and malformed babies – will the same fate befall those exposed to depleted uranium in the Middle East and the Horn of Africa?

Impact of civil war on women and children 95 Table 5.14 Public expenditure (percentage of GNP, 1995–98)

Angola Burundi Eritrea Mozambique Rwanda

Education

Health

Military

4.9 4.0 1.8 2.1 3.5

1.4 0.6 2.9 2.1 2.1

14.9 5.8 13.5 4.2 4.3

Source: UNDP Human Development Reports.

War alters the economic environment, disrupting markets and production and shifting government economic priorities. Military budgets take precedence over social service allocations, and the breakdown of healthcare and education affects women and children particularly. African conflicts that have endured for decades mark these shifts (see Table 5.14). Xenophobia increases in wartime, as do racism, sexism, prejudice, and discrimination. Clearly, these attitudes endanger minorities and women in mixed marriages, but there is far too little analysis of the long-term consequences. One of the few studies is a social history of the Nigerian civil war.20 Women who married outside their cultural area faced immense problems: an Ibibio woman was killed by her people after she elected not to flee with her husband and returned to her people; an Efik woman said her life was in danger, that the hatred of her husband’s people made her panic; and another woman said that as a “foreigner,” she was discriminated against, called a harlot, and nearly became insane.21 War creates a pro-natalist environment, which puts pressure on women, affecting their reproductive choices, resulting in the phenomenon known as the postwar baby boom in some countries after the Second World War. Demographers have done almost no research on this phenomenon in Africa. A study of the Dinka in an emergency relief center in southwestern Sudan concluded that families desire many children to replace the infants lost to war.22 But the recalcitrance of young Dinka women who agree reluctantly to conceive thwarts family desires; as many as 35 percent terminate pregnancy, resorting to unsafe and clandestine abortion and risking infertility, infection, or death. War also distorts scientific research, which serves military rather than the social needs, and takes the best minds and largest budgets away from studies of women’s health and public education, among other subjects. Finally, the militarism of societies engaged in war weakens democracy because militaries are authoritarian organizations and because governments sacrifice civil liberties in the name of national security. War silences women, just as it censors the press, suppresses dissent, and imprisons political opponents. These long-term impacts of war on women and children need far more study, and far more attention needs to be paid to the design of programs that might help people recover from war more quickly.

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Notes 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

Holdstock 2002: 189. Bunch and Reilly 1994. Garfield and Drucker 2002. The crude mortality rate, usually expressed as deaths per 10,000 people per day in the early phases of an emergency, is the most specific indicator of health status among refugee populations (Toole 2000). IPEC 2003. Human Rights Watch 2001. Giller 1998; Sideris 2003. McNally 2003. Save the Children 2002. Kumar 2001. Ibid. Whyte 2000. Save the Children 2002. Masci 2003. Newbury 1999. Ibid. Shearer 1999. Csete and Kippenberg 2002; Goodwin 2004. Barnes 2004. Harneit-Sievers, Ahazuem, and Emezue 1997. Emeuze 1997. Jok 1999.

6

Security and reconstruction in Africa Role of Security Council Resolution 1325, Women, Peace and Security Sherrill Whittington

Introduction: gender mainstreaming and peacekeeping operations Peace settlements or formal negotiations traditionally do not take women’s experiences and situations into account. When called upon to oversee ceasefires, or the negotiations and implementation of peace accords, or postconflict reconstruction, the United Nations Peacekeeping Operations are responsible for ensuring that the principles of nondiscrimination apply. Efforts have to be made to include equal participation of women, so that women’s rights, needs, issues, views, and voices are not marginalized when negotiating peace accords, and in the political, economic, and social reconstruction of their countries. As UN Secretary-General Kofi Annan stated in the 2000 debate introducing Security Council Resolution 1325, Women, Peace and Security, “peace is inextricably linked to equality between women and men . . . maintaining and promoting peace and security requires equal participation in decision-making.”1 This applies to all decisions made from peace negotiations and peace accords; implementing mandates of peacekeeping missions; and reconstructing or constructing systems of governance, security, the rule of law, and electoral and constitutional reform and developments. Security Council Resolution 1325 calls upon all actors involved in negotiating and implementing peace agreements or developing and implementing a peacekeeping mandate to adopt a gender perspective. The resolution stresses the importance of ensuring the protection of women’s rights and the full involvement of women in all aspects of promoting and maintaining peace and security with a strengthened role in decision-making. It recommends specialized training for peacekeepers on the protection, special needs, and human rights of women and children, and urges for greater representation of women at all levels in peacekeeping operations. It also requires that peacekeeping missions report on mainstreaming gender, apply a gender analysis to all policies and programs, and ensure that the legitimacy of gender equality is a fundamental value, both at headquarters and in the field.

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In March 2002, the Special Committee on Peacekeeping Operations reinforced the responsibility of the Department of Peacekeeping Operations in ensuring that issues relating to gender equality in field operations are properly addressed, both in the field and at Headquarters, and that the work of gender focal points in the field, which should be at sufficiently senior levels, should have the proper support in the Secretariat and adequate resources allocated for this purpose.2 The Secretary-General’s report on women, peace, and security3 presents the measures that the United Nations has taken to implement Resolution 1325, and emphasize[s] that the systematic and full implementation of a gendermainstreaming strategy for peace operations was critical to securing a systematic and full implementation of resolution 1325 (2000), concluding that sustainable peace and security could not be achieved unless the knowledge available on women, peace and security informed the development of peace accords, mandates for missions and assessments, analyses, policies and resource allocations.4 In accordance with the specific mission mandates, the United Nations has to establish strategies, processes, and mechanisms to mainstream gender equality throughout the mission. Depending on the main focus of a mission mandate, either overseeing peace accords/ceasefires, maintaining law and order, or the more complex task of nation-building and reconstruction, the approaches to integrate gender equality into all aspects of a mandate’s implementation will vary. This necessitates the development of policies, allocation of resources, as well as capacity building of field-based personnel. On October 31, 2002, the Security Council adopted a presidential statement,5 which reaffirmed the importance of gender mainstreaming in peacekeeping operations and postconflict reconstruction, and outlined a number of critical actions to support gender mainstreaming in peacekeeping operations. Included among those actions were requests to ensure attention to the gender perspective in all the Secretary-General’s reports on peacekeeping missions; to provide systematic training on gender perspectives to all peacekeeping personnel; and to integrate gender perspectives into all standard operating procedures, manuals, and other guidance materials for peacekeeping operations. Only a high-level executive commitment which supports, from the outset, full integration of gender equality into all stages of peacekeeping operations, both at headquarters and in the field, from pre-mission planning to mission downsizing and liquidation can ensure implementing such an approach. “Accountability for all issues relating to gender mainstreaming at the field level should be vested at the highest level, in the Secretary-General’s Special Representative, who should be

Women, security, and reconstruction in Africa 99 assigned the responsibility of ensuring that gender mainstreaming is implemented in all areas and components of the mission.”6 But often headquarters’ policymakers overlook or fail to grasp that the real value of any resolution lies not in the rhetoric but in its implementation. As such, some of the key questions and challenges are how to translate the jargon of UN resolutions and the discourse of headquarters, which is removed from the reality of the field, into tangible, sustainable outcomes? Who is responsible for implementing such resolutions, and Resolution 1325 in particular? And what of accountability? Who is accountable for implementing Resolution 1325, and how can such a resolution underpin reports, debates, evaluations, and other resolutions of the Security Council? How can the United Nations use this resolution to ensure that the international community bases democracy building on the full participation of women and the full guarantee of their rights? In order to ensure that both the Security Council and the field level in peacekeeping operations globally, and specifically in Africa, address the key issue of gender equality, the United Nations should evaluate the lessons learned/good practices from other peacekeeping and postconflict situations, and draw upon these to guide the application of Resolution 1325. In doing so, the United Nations must also be aware that no two conflicts are identical, nor are the formulas for reconstruction. How, for example, can the United Nations bind multinational, coalition forces that are not “blue helmets” to the requirements of this resolution and other international instruments? Should the United Nations call upon countries that are not signatories to international human rights conventions, such as the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the Child Rights Convention, to uphold the conventions in countries that are signatories? How is it possible to hold the international community, both military and civilian (including business interests), accountable for women’s human rights? Implementing Resolution 1325 and other human rights instruments within the context of a peacekeeping operation’s mandate will only occur with high-level executive commitment. From the outset, the principle of gender equality has to be fully understood and integrated into all stages of peace operations: from preplanning7 to implementing mission plans. This is what the jargon of “gender mainstreaming” implies in practice. Strategic partnerships need to be established within the mission, with key players such as the office of the Special Representative of the Secretary-General and deputies (Military, Governance, and Humanitarian Affairs), as well as components covering areas such human rights, political and civil affairs, Civilian Police (Civpol), training, and public information. External partnerships with international actors should be based on the realization that the role of such players (including the mission) is not to act in a unilateral, noncollaborative manner, but primarily to work with local partners, enabling women to undertake an integral role in reconstruction, and empowering their organizations and women leaders to shape their own nation-building according to the rule of law based on rights and gender equality.

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How implementing resolution 1325 can be a mechanism for inclusive, gender-sensitive reconstruction In Africa, peacekeeping, peace-building, and reconstruction programs need to address the experiences of all people during and after armed conflict. Security Council mandates authorizing United Nations peacekeeping operations should recognize the impact of conflict and its aftermath, that males and females are subjected to gendered violence, and that women, particularly, are excluded from national decision-making, and political, economic, and social reconstruction. To construct sustainable democratic institutions, which can only develop when security is guaranteed, states must implement programs that address gender-based violence, disarmament, demobilization, reintegration, and rehabilitation based on nondiscrimination, particularly gender.

Gender-based violence The international community needs to recognize that in all African postconflict situations, from Sudan to Cote d’Ivoire and Liberia, the majority of males were directly involved in armed forces or militia, with women and children constituting more than half of the refugee and internally displaced populations. Families experience heightened levels of uncertainty, instability, anxiety, and depression as more men and older boys in the family leave home for their own security and as troops take away or kill men of fighting age. While both males and females experience gender-based violence during conflict, women who lose a male protector have an increased risk of sexual abuse and torture. The Beijing Platform for Action highlighted these differences: “[W]hile entire communities suffer the consequences of armed conflict and terrorism, women and girls are particularly affected because of their status in society and their sex.”8 Due to the gender-based inequalities, women and girls are particularly vulnerable to increased violence and discrimination, and are not included in decisions regarding either the conflict or the peace and reconstruction processes. The changes in armed conflict over the last decade have affected women and girls. Groups often view women and girls as bearers of cultural identity, and thus they become prime targets. Gender-based and sexual violence have increasingly become weapons of warfare and are one of the defining characteristics of contemporary armed conflict. Rape, forced impregnation, forced abortion, trafficking, sexual slavery, and the intentional spread of sexually transmitted diseases such as HIV/AIDS are elements of contemporary conflict.9 Democratic Republic of the Congo All too often soldiers use sexual violence and rape as weapons of war, as a means of breaking and controlling the civilian population. In the Democratic Republic of the Congo (DRC), Human Rights Watch reported that soldiers and combatants raped and otherwise abused women and girls as part of their effort to win and maintain control over civilians and the territory

Women, security, and reconstruction in Africa 101 they inhabited. They attacked women and girls as representatives of their communities, intending through their injury and humiliation to terrorize the women themselves and many others. One sixteen-year-old girl who was raped told us there is no way to protect girls from these things. I know they didn’t target me – any [woman] would have had the same thing happen – but this is unacceptable. There are many girls who live in these conditions.10 Sierra Leone The UN mission in Sierra Leone (UNAMSIL) formed a Gender Specialist unit within the Human Rights Unit and a Women’s Task Force on the Truth and Reconciliation Commission to give specific focus to gender-based violence during conflict, and recommended a policy of psychosocial support for victims of gender-based violence. Research on war-related sexual abuses has been a joint UNAMSIL and nongovernmental organization (NGO) undertaking, and has focused on promoting and protecting women’s rights in postconflict states. Their report, War-related Sexual Violence in Sierra Leone, the Report of the Special Rapporteur on Violence Against Women, documents the violations of women’s rights during conflict, which will ensure the visibility of these issues during the transitional justice mechanisms. Training on women’s rights and sexual exploitation of vulnerable groups has also been carried out with military peacekeepers, the Sierra Leone police, and the Sierra Leone Armed Forces. To ensure full respect for human rights of women and children, the United Nations has held training on CEDAW and the Optional Protocol for the Family Support Unit of the Sierra Leone police and civil society organizations. Sudan Rape is a cultural taboo in Sudan, and families often ostracize victims. The systemic rape as a weapon of genocide has accompanied the recent indiscriminate attacks by militia in Darfu. “The suffering and abuse endured by these women goes far beyond the actual rape. Rape has a devastating and ongoing impact on the health of women and girls, and survivors now face a lifetime of stigma and marginalization from their own families and communities.”11 According to one of the victims, “[F]ive to six men would rape us in rounds, one after the other for hours during six days, every night. My husband could not forgive me after this; he disowned me.”12 Burundi Rape victims in Burundi also face extreme social stigma. Girls have been chased from schools and families reject the women and girls that become pregnant. These social attitudes make it less likely that women and girls will seek appropriate medical attention. A growing body of evidence links wars and mass displacement, and the sexual abuse suffered by women and girls to the spread of HIV/AIDS. In war and related emergencies, sexual bartering – mainly rooted in

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poverty and powerlessness – sexual violence and exploitation, low awareness about HIV, and the breakdown of services in health and education services fuel the epidemic. HIV/AIDS also increases rapidly in conjunction with peacekeeping operations, which increase the vulnerability of local populations to sexual exploitation. Burundian women, who make up a majority of people living with HIV/AIDS, face extreme stigmatization in their communities once their HIV status becomes known. As a result, many Burundian women are reticent to be tested because of the discrimination that they will face. Congo To address the issue of systematic gender-based violence and its linkages to HIV/AIDS, the United Nations Mission in the Congo (MONUC) Human Rights section has worked with the Office of Gender Affairs. In Bukavu, the newly established Commission de Lutte contre les Viols et Violence au Sud Kivu together with local and international nongovernmental organizations (NGOs) address the problem at all levels – legal, medical, social, and psychological. The United Nations raised funds in order to inform better women in remote rural areas of medical services available as well as to provide transportation to medical facilities. MONUC has also been documenting the number of HIV/AIDS cases in local hospitals.

Disarmament, demobilization, reintegration, and rehabilitation Security is an essential prerequisite for electoral and constitutional processes to succeed. Resolution 1325 calls on all actors involved in negotiating and implementing peace agreements to adopt a gender perspective that takes into account the special needs of women and girls during repatriation and resettlement, rehabilitation, reintegration, and postconflict reconstruction. Militaries recruit both boys and girls as “child soldiers,” and the regular armed forces and other armed groups recruit girls to perform menial labor and, in many cases, for sex. The case of 165 child soldiers in the “Special Cohi” unit (trained in Uganda to exterminate ethnic Lendu populations in Ituri) that the United Nations Children’s Fund recovered on February 22, 2001, and kept at transit camps in Kayandongo (district of Masindi), illustrates this occurrence. Among the child soldiers were two girls infected with HIV, as well as others that had contracted sexually transmitted diseases such as gonorrhea and syphilis from sexual relations with their Ugandan monitors.13 Armed forces cannot be demobilized overnight without dire results for national security. States also need financial and material subsidies to provide food, clothing, shelter, tools, transportation, and education to demobilized forces. Briefings, counseling, and training in reintegration programs for the eventual reintegration of ex-combatants should consider the needs of women and girls, whose experience of conflict is very different than the experience of males. The role of women’s

Women, security, and reconstruction in Africa 103 groups/organizations to support reintegration should be pivotal. To build community support for disarmament, there should be consultation with women’s groups and women within the community to provide important information regarding perceptions of the dangers that the numbers of weapons pose, traditional response mechanisms to the problem of high numbers of weapons, and, potentially, the identification of weapons caches and transborder weapons trade. States need to put special protection measures in place for female-headed households to ensure physical and economic security. According to British NGOs working in the Democratic Republic of the Congo, Although some [children] receive military training, it appears that few, if any, see any combat. Girls are typically used for domestic work and sex; primarily by commanders . . . many girls remain “wives” of military commanders, even returning to the countries of origin of foreign forces. Many others resort to prostitution to support themselves and their children after being abandoned or widowed by their military partners.14 MONUC and the United Nations Development Fund for Women monitor the resettlement and reintegration processes in the Rwanda “solidarity” camps. They are working toward creating reintegration and income-generating training programs for Rwandan and Congolese women at the community level, with special benefits for female heads of households. In Liberia, the UN Secretary-General has directed that the United Nations establish special measures and programs to address the gender-specific needs of female ex-combatants, as well as the wives and widows of former combatants. Specifically, the Secretary-General has called for briefing, counseling, and training in programs for the eventual reintegration of ex-combatants that take into consideration the different experiences of women and girls compared to men and boys during conflict. Given the high rates of sexual violence perpetrated in the conflict, the UN Mission in Liberia mandate includes the prevention of sexual violence in its reintegration program. The Mission needs to develop special programs to address refugee and internally displaced girls who have been regularly exposed to rape, sexual abuse, and prostitution in camps, and continue to be sexually exploited by soldiers, men with money, block leaders, businessmen, and humanitarian workers, including those from NGOs.15 Human Rights Watch has recommended the construction of childcare centers to assist young mothers and the implementation of health and counseling programs for women and girls that survived rape and other forms of sexual assault. Its recent report stressed the importance of screening for sexual transmitted diseases, including HIV, during the demobilization process. The report describes how the insurgency group Liberians United for Reconciliation and Democracy (LURD) forces abduct girls, train them to use guns and other weaponry, and sexually assaulted many to the point of death. Some girls join LURD on their own in order to escape the torturous treatment by government soldiers, including rape, beating, robbery, and forced labor.16

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On May 21, 2004, the Security Council authorized the establishment of the United Nations Operation in Burundi (ONUB) under Chapter VII for an initial period of six months as of June 1, 2004. The Council has authorized ONUB to use all means necessary to undertake the disarmament and demobilization phases of the national Disarmament, Demobilization, Rehabilitation, and Reintegration program; and reaffirms the need for all parties to regroup and canton combatants in a timely manner, and to begin implementing the program to dismantle all armed groups, including the militias, giving particular attention to the “specific need of women and children.”17 It is also to ensure, in close liaison with the Office of the High Commissioner for Human Rights, the promotion and protection of human rights, “with particular attention to women, children and vulnerable persons, and investigate human rights violations to put an end to impunity.”18 ONUB is to work with the government of Burundi to extend state authority throughout the country, including the judicial institutions and civilian police, and to carry out the national program of disarmament, demobilization, reintegration, and rehabilitation, including for combatants returning from the DRC, while “paying particular attention to the needs of women and children.”19 In coordinating activities that support the transition process among national, regional, and international actors, the Mission has to ensure that its “personnel give special attention to issues related to gender equality, as well as to the specific needs of children.”20

Women in peace processes Security Council Resolution 1325 also calls for “measures that ensure the protection of and respect for human rights of women and girls, particularly as they relate to the constitution, the electoral system, the police and the judiciary.”21 On the first anniversary of this resolution, the Security Council reaffirmed its strong support for increasing the role of women in decisionmaking with regard to conflict prevention and resolution and renews its call on States to include women in the negotiations and implementation of peace accords, constitutions and strategies for resettlement and rebuilding and to take measures to support local women’s groups and indigenous processes for conflict resolution. It is encouraged by the inclusion of women in the political decision-making bodies in Burundi, Somalia and in East Timor.22 Women are not considered key players in peace negotiations, which male leaders from the warring factions usually negotiate. The marginalization of women is also evident in the planning for national reconstruction, with the assumption that male decision-makers are solely responsible for rebuilding wartorn societies, justice and political systems, and economies. Despite the unique experiences and contribution of women to peace-building and postconflict reconstruction processes, most approaches to conflict resolution and peacebuilding have either ignored or marginalized women, or failed to address their support needs. Women consistently remain a minority in peace-building projects,

Women, security, and reconstruction in Africa 105 negotiations, and policies, and are largely absent from formal peace negotiations and decision-making discussions. It is incumbent that in United Nations peacekeeping operations, in conjunction with peace-support partners, the protection of women’s human rights are central to all actions that promote peace, implement peace agreements, resolve conflict, and reconstruct war-torn societies. In Burundi, the United Nation’s Refugee Agency’s Executive Committee was told that refugee women must have a place at the peace table. “They must be associated with the search for peace in their country,” according to Caritas Sebashahu, a refugee from Burundi.23 A “person who is absent is like someone who is dead,” she said, quoting a Burundi proverb.24 Women’s groups in the West African states of Guinea, Liberia, and Sierra Leone were also instrumental in bringing together the countries’ leaders to discuss security problems.25 In the Democratic Republic of the Congo, the MONUC Office of Gender Affairs hosted a one-day workshop in August 2002 to mobilize efforts around the peace process. The office invited 24 leaders from an umbrella of organizations, journalists, the President of Civil Society, and Ministry of Social Welfare and Family officials to an exchange of views on the theme Peace in the DRC. The objectives included information sharing and researching strategies to ensure maximum participation in articulating issues in the peace process. Participants agreed that attempts to involve women in public life serve only a symbolic purpose in many instances. One major outcome of this session was the agreement by participants to create a Plan of Action with other members of their various networks. The strategy seeks to engage both men and women from various lifestyles in an ongoing reflection to lead to full and better balanced participation in public life. On September 21, 2002, the MONUC Office of Gender Affairs together with the Fédération des Femmes pour la Paix Mondiale (Federation of Women for Worldwide Peace) initiated civil society activities around the International Day for Peace. A meeting of NGOs discussed the preparation of activities. Civil society groups set up a coordination committee to organize a week of peace and nonviolence in the DRC between September 21 and 28. One of the largest women’s networks, Cause Commune (Common Cause), organized a dinner-debate under the theme Par qui peut venir la paix en RDC (Who can bring peace in the Democratic Republic of the Congo? (DRC)), focusing on individual responsibility in the peace process. Civil society representatives held meetings on organizing and budgeting a peace campaign around Resolution 1325 and the Nairobi declaration in schools, universities, and churches with an accompanying media campaign. In a related event, the civil society of South Kivu in Bukavu organized a meeting of 25 women leaders on November 20 and 21 at the initiative of the Réseau des Femmes pour la Défense des Droits et la Paix (Women Network for the Defense of Rights and Peace). The women wrote an open letter to the delegates of the Inter-Congolese Dialogue and the UN Special Envoy Mr Niasse. They also distributed a position paper on the plans for the transitional government that emphasized good governance; proposed 30 percent representation of women in

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the government; had mechanisms to stop human rights violations and to treat sexual violence as a war crime; and proposed names of women candidates. La Dynamique des femmes politiques au Congo démocratique (Dynamics of political women in the Democratic Congo) organized a seminar in December to launch the organization officially. The women’s group has worked since January 2001, unofficially lobbying and trying to ensure women’s participation in the political opposition parties. Currently, the organization’s main objective is to advocate and lobby for the participation of women in the political process, and its membership consists of women from at least 20 political parties. The group sent 12 women to participate in the Pretoria talks in November 2001 on the Democratic of the Congo peace process. After the peace talks, their focus turned to the elections with emphasis on civic education programs for women.

Conclusion With the African continent experiencing an increasing number of complex peace-support operations in the last decade, it has become more imperative to integrate a rights-based approach, with gender equality at its core, into the task of postconflict reconstruction and democracy building. Resolution 1325 was the first UN Security Council framework to address this task, to directly link with current peacekeeping mandates in Liberia, Cote d’Ivoire, and Burundi, and will undoubtedly play an integral role in the mission in the Sudan. In Sierra Leone and the DRC, dedicated gender specialists ensure that the mandate’s implementation addresses gender equality, and that partnerships with local women’s organization ensure their direct involvement in national reconstruction. Only with such full and equal involvement of women in the peace processes will postconflict Africa base national reconstruction on justice, equity, and nondiscrimination.

Notes 1 UN Secretary-General, Kofi Annan, October 24, 2000. 2 Gender mainstreaming in peacekeeping activities: Report of the Secretary-General, GA/57/731 February 13, 2003, para. 9 (Refer to Section Four CD-Rom). 3 S/2002/1154, October 16, 2002. 4 Gender mainstreaming in peacekeeping activities: Report of the Secretary-General, GA/57/731 February 13, 2003, para. 10. 5 S/PRST/2002/32. 6 Namibia Plan of Action on “Mainstreaming a Gender Perspective in Multidimensional Peace Support Operations,” para. 8. 7 Note that only two pre-mission technical assessments have included gender advisers: Liberia and Cote d’Ivoire. 8 Paragraph 135. 9 Women, Peace and Security, study submitted by the Secretary-General pursuant to Security Council Resolution 1325 (2000) P.2. 10 “The War Within the War, Sexual Violence Against Women and Girls in Eastern Congo,” © June 2002 by Human Rights Watch.

Women, security, and reconstruction in Africa 107 11 Amnesty International, Darfur: Rape as Weapon of War: Sexual Violence and its Consequences, July 19, 2004. AFR 54/076/2004. 12 Marc Lacey, “Amnesty Says Sudan Militias Use Rape as Weapon,” New York Times ( July19, 2004). 13 Communiqué n007/CADDHOM/RDC/001, May 8, 2001, Paris. 14 Ibid., supra note 2. 15 “Nothing Left to Lose: The Legacy of Armed Conflict and Liberia’s Children,” UNICEF Study 2004. 16 Human Rights Watch Report, “How to Fight, How to Kill: Child Soldiers in Liberia,” February 2004. 17 United Nations Operation in Burundi (ONUB) established by Resolution S/RES (1545) 2004 adopted May 21, 2004. 18 Ibid. 19 Ibid. 20 Security Council Resolution 1545, May 21, 2004. 21 Security Council Resolution 1325, Women, Peace and Security. 22 Presidential Statement S/PRST/2001/31 read by its President, Brian Cowen, Minister for Foreign Affairs of Ireland. 23 UNHCR News Stories, Women Should be Included in Burundi Peace Talks, October 5, 2001. 24 Ibid. 25 UNHCR News Stories, GENEVA, October 5, 2001.

7

Progress and hurdles on the road to prevent the use of children as soldiers and to ensure their rehabilitation and reintegration Ilene Cohn

Introduction Over the past 20 years, the international child rights movement has, without a doubt, spurred the development of international law, policies, and programs for children. The movement has been extremely effective at putting children affected by conflict – and especially child soldiers – on the map of public concern. Of course, the compelling nature of their plight almost speaks for itself. If any child has a forceful claim for increased attention and resources, it is the millions on every continent that suffer daily exposure to extreme and chronic violence, death, torture, rape, maiming, displacement, loss of home and schooling, separation from loved ones, and, in the case of scores of thousands, participation in war as soldiers, sometimes as young as 7, 8, and 9. Yet, in spite of stronger laws and advocacy, the situation of these children has deteriorated in important respects. The Secretary-General reported in 2001, a decade after the 1990 World Summit for Children and the adoption of the Convention on the Rights of the Child,1 that “[p]erhaps more children have suffered from armed conflicts and violence since the Summit than at any comparable period in history.”2 So what has the ascendance of child rights to the international plane meant for the lives of children living in the midst of armed conflict and, more specifically, for child soldiers? The good news is the remarkably strengthened legal regime that has developed over the past 15 years and is particularly focused on eliminating the use of children as soldiers. In the wake of the 1977 Protocols to the Geneva Conventions,3 we have the Convention on the Rights of the Child, the African Charter on the Rights and Welfare of the Child,4 the International Labour Organization’s Convention No. 182 on the Elimination of the Worst Forms of Child Labour,5 and the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict (Optional Protocol).6 The Optional Protocol, which entered into force in February 2002, strengthened the legal regime relevant to children’s rights in three important respects. First, the Optional Protocol precludes compulsory recruitment of persons under

Child soldiers, progress, and hurdles to rehabilitation 109 the age of 18. Second, it obliges parties to take all feasible measures to prevent the deployment of persons under age 18 to hostilities. Third, it requires parties to raise the age of voluntary enlistment to at least one year above the 15-year age limit, which existing international law establishes as the minimum threshold. As well, a number of countries have been – and are – promulgating domestic legislation that prohibits the recruitment or use of children as soldiers. The statute of the International Criminal Court (ICC), the Rome Statute, classifies the recruitment or use of persons under the age of 15 by armed forces or armed groups as a war crime.7 Child recruiters in the Democratic Republic of the Congo (DRC) will possibly be among the first to be prosecuted under the Rome Statute. Country-specific ad hoc tribunals are a further venue to address the violations of the norms that preclude the recruitment or use of children in armed conflicts. A case is currently pending in the Special Court for Sierra Leone against Hinga Norman, the Chief of the Civil Defense Forces, an armed group which recruited large numbers of young people, often through perverted versions of traditional initiation rites. The downside of the improved capacity to monitor and report on compliance with this strengthened normative regime is that it reveals an excessive number of blatant violations. The Secretary-General’s annual reports to the Security Council on children and armed conflict8 and his periodic country-specific reports to the Security Council testify to the ever-worsening situation.9 In 2001, after four years of considering the impact of armed conflict on children and with a note of exasperation, the Security Council called for “a list of parties to armed conflict that recruit or use children in violation of the international obligations applicable to them, in situations that are on the Council’s agenda. . . .”10 The SecretaryGeneral’s 2002 report to the Security Council11 included a list of 23 parties to conflicts in five countries that were in violation of their obligations regarding the recruitment of children: Afghanistan, Liberia, DRC, Burundi, and Somalia. In addition, the body of the report contains information on illegal child recruitment by an additional 17 parties in 8 conflicts not on the Security Council’s agenda. It was also noted that five recently concluded conflicts recruited high numbers of children and demobilization was underway. The Council had to take concrete steps in the face of this very clear information. In doing so, the Council expressed its intention to enter into a dialogue or to support the United Nations in dialogues, with the parties involved in child recruitment to “develop clear and time-bound action plans to end this practice” and called on the parties themselves to provide information regarding steps that they had taken to halt illegal child recruitment.12 The Council urged member states to control the illicit trade of small arms to parties in violation of relevant international legal provisions and indicated that it would take “appropriate steps to further address this issue . . . if it deem[ed] that insufficient progress [was] made upon the review of the next Secretary-General’s report.”13 The United Nations monitored about 40 parties, mentioned explicitly in the 2002 report, throughout the following year. In November 2003, the SecretaryGeneral reported to the Council that all parties on the 2002 list continue to

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recruit and use child soldiers.14 In addition, an expanded set of lists annexed to the report names and shames a new total of over 55 parties to conflicts. (The revised lists include at least 33 parties in 6 conflicts on the Security Council’s agenda and over 22 parties in 9 conflicts not on the agenda.) The Council considered the expanded lists in an open debate on January 20, 2004 and issued a resolution on April 22, 2004.15 Armed with this clear and specific information, what could the Council do? The Secretary-General’s report enumerated a set of graduated measures that the Council might consider taking where the particular parties to the conflict made insufficient or no progress, including “the imposition of travel restrictions on leaders and their exclusion from any governance structures and amnesty provisions, a ban on the export or supply of small arms, a ban on military assistance, and restriction on the flow of financial resources to the parties concerned.”16 By this time, a pattern emerges: the Secretary-General provides information and recommends steps, the Council affirms and reaffirms its commitment to take concrete steps, but the situation for children worsens and the Council takes few of the steps identified.17 This chapter discusses four tendencies in the field of child rights and armed conflict. I believe that we must address these tendencies to narrow the gap between progress in the law and progress on the ground. The first tendency is to avoid the resolution of the tensions between the human rights impulse to strengthen norms and the humanitarian impulse to assist war-affected children. The second tendency is to pursue advocacy and humanitarian programming without serious assessment of the political, economic, and social dynamics driving a particular conflict. The third tendency is to avoid the assessment of the longterm qualitative impact of the many and varied interventions on behalf of waraffected children. As a result, little is known about whether or not the interventions work. And finally, there is a tendency to refer to the Convention on the Rights of the Child as a policy and programming tool while glossing over the divergent conceptual approaches to children’s rights and the contradictory programs and policies that result.

Tendency one: the human rights impulse versus the humanitarian impulse The human rights impulse has driven child rights advocates to focus heavily on strengthening the normative protection for children in armed conflicts, and, as I have mentioned, there has been great and measurable progress toward this goal. On the humanitarian side, progress is harder to discern; there are at least as many child soldiers today as there were when the campaigning escalated over 10 years ago. The reasons for child soldier recruitment and enlistment are simple to articulate: shortages in armed forces and groups, the attraction of children who are easily manipulated into fierce fighters, the lack of alternatives available to destitute children and families, pressure from peers or influential members of

Child soldiers, progress, and hurdles to rehabilitation 111 the children’s lives, and, for some young people, a commitment to the objectives of the party in which they enlist. When the movement was focused on achieving consensus on the text of the Optional Protocol, advocates’ slogans belied any knowledge of those complex root causes. A dedicated group of NGOs led the campaign for an Optional Protocol with slogans calling on states to “stop the recruitment of child soldiers” by adopting a “straight-eighteen approach” to child soldiering – one that prohibits the voluntary or compulsory recruitment or use of anyone under age 18 in armed forces or groups. Many humanitarian agencies joined the advocacy groups in the Optional Protocol campaign without posing the hard questions derived from facts that they knew well. Field-based organizations should have asked the following questions: ●

●

●

What is the likelihood of achieving compliance with a new standard when the earlier and lower domestic and international standards are consistently violated? How can a new human rights legal standard reach the primary offenders in conflict settings – nonstate armed groups? How will the assignment of individual criminal responsibility to recruiters stop children from volunteering or alter the social, political, and economic factors at the root of volunteerism?

During the five years of treaty negotiations on the Optional Protocol, the movement had the ear of the international political community, but it failed to raise the hard questions and to generate a sustained commitment to address the harder realities underlying the problem. So what has the Optional Protocol accomplished? Sixty-three states ratified the Optional Protocol at the end of 2003, two years after its entry into force. Only five are engaged in armed conflicts, and all five – Afghanistan, the Democratic Republic of the Congo, the Philippines, Sri Lanka, and Uganda – have taken the “straight-eighteen approach.” Is this a victory for the advocates urging adherence to stronger norms? Perhaps. Nevertheless, all five of these countries are on the Secretary-General’s most recent lists of parties to armed conflict that are in violation of obligations regarding child soldier recruitment and use.18

Tendency two: advocacy in the absence of a conflict-specific analysis Our advocacy agenda has been articulated and pursued not only with little attention to what the humanitarian colleagues in the field know, but also without sufficient analysis of the political, social, economic, and military dynamics of particular conflicts. This is a serious impediment to progress in concrete situations. To generate compliance with commitments and obligations, we must get beyond slogans calling for “compliance.” As an illustration, the Special Representative of the Secretary-General for Children and Armed Conflict has elicited child protection commitments from parties to conflicts during his field visits. He obtained

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commitments to end or restrict child soldiering from the Sudan People’s Liberation Army (SPLA), the Liberation Tigers of Tamil Eelam (LTTE) in Sri Lanka, the Revolutionary Forces of Colombia (FARC), and the DRC government.19 Members of the child rights movement have rallied behind these commitments, calling for compliance and for reports by monitoring groups. Yet the movement does not seem to be building bridges to the political scientists, the economists, the bankers, and the corporate actors, who either have influence in or understanding of what is driving a particular conflict or a particular warring party. We have been slow to build the networks and undertake the analysis required to develop initiatives that can truly aspire to induce specific actors to comply with their commitments and that render noncompliance too costly for a particular armed force or group to bear. None of the commitments to demobilize child soldiers or refrain from recruitment have been complied with, and all the armed forces or groups that made commitments are now on the SecretaryGeneral’s lists of child soldier recruiters. The child rights community must build partnerships with political scientists, economists, the private sector, country analysts, and others to conceive of actorspecific initiatives likely to compel compliance with child protection commitments and obligations.

Tendency three: neglecting to measure the long-term impact of preventive or responsive interventions The tendency not to assess the qualitative impact of our interventions on behalf of war-affected children over the medium and long term is an oversight that hampers our ability to advocate for particular programs, to guide the flow of donor contributions, and to refer confidently to “best practices” or “lessons learned” in programming for war-affected children. We simply fail to stick around long enough to learn whether our programs have made a positive difference in the lives of children. Without this knowledge we cannot, for example, seek to enforce articles 6 and 7 of the Optional Protocol. Article 6 requires states parties to demobilize child soldiers and to provide appropriate assistance for the physical and psychosocial recovery and social reintegration of child soldiers. Article 7 requires states parties to provide technical cooperation and financial assistance to support child soldier rehabilitation programs. What do we know about which programs work or what assistance is “appropriate”? The international community has assisted in demobilizing child soldiers since the late 1980s and still we see a muddle of programs and approaches. In Sierra Leone child soldiers seeking to demobilize were required to hand in a weapon to gain access to the program.20 Yet all the UN policy or lessons-learned documents on child soldier demobilization stipulate that gun requirement should not be applied to child soldiers because commanders are unlikely to prioritize child soldier demobilization if they must give up a weapon. Child rights organizations disagree over whether children ought to be immediately

Child soldiers, progress, and hurdles to rehabilitation 113 reunified with their families, when this is possible, or housed in interim care centers that could provide a range of services or training opportunities. And if they stay in interim care centers, it is not clear how long they should house children. It is not clear how best to attract and assist girls who have served as soldiers, camp followers, wives or sexual slaves of combatants, or mothers of children of combatants into the demobilization and reintegration process. Successful reintegration is, in part, a function of skills training that enables former combatants to be self-sustaining or to contribute to the community after they return. Training in irrelevant vocations – those for which no jobs will be found in the local economy – was provided to former child combatants in Sierra Leone.21 The Optional Protocol requires states to provide appropriate assistance; the international child rights movement must invest far more in credible, long-term program evaluations if we are to guide or implement such assistance.

Tendency four: overreliance on the convention on the rights of the child to inform distinct programs and policies Others have stated that accountability for child recruitment is essential to enforce international law prohibiting child recruitment. Though we will have to wait to see whether the prosecution of child recruiters in the ICC or the Special Court for Sierra Leone has a deterrent effect, my fourth tendency illustrates how hard it has been for the international child rights movement to address the accountability of child soldiers themselves. I am raising this aspect of the accountability issue because it is relevant to the discussion of how best to assist children who serve as soldiers and to foster their social reintegration. If we fail to enforce the norms that protect children from participating in armed conflict in the first place, we cannot seek comfort in the possibility of merely punishing the recruiters. We must focus greater attention and resources on the appropriate reintegration measures to ensure former child soldiers the chance to function as a member of his or her community. As we seek to define what measures are appropriate, I think that we should consider the question of individual accountability for child soldiers who commit egregious crimes as a possible component of rehabilitative interventions. Because the child rights movement tends to gloss over conceptual differences in the interpretation and application of basic principles embodied in the Convention on the Rights of the Child, it is no surprise that child rights advocates cite the same Convention provisions in support of completely opposing approaches to the question of child soldier accountability. The debates on the involvement of children in the Special Court for Sierra Leone well illustrate this point.22 There is broad consensus that transitional justice mechanisms – truth commissions and war crimes tribunals – should explicitly address egregious crimes involving children. The Sierra Leone Truth and Reconciliation Commission was the first to do this. Its Statute, adopted in 2000, requires the

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Commission to give special attention to the experiences of children within the armed conflict, including child perpetrators of abuses or violations. When the Security Council called in August 2000 for a Special Court to try persons “who bear the greatest responsibility” for international and domestic war crimes committed in Sierra Leone, integrants of the movement vehemently disagreed over whether the Court’s jurisdiction should extend to child soldiers who had perpetrated terrible abuses. We agreed on the facts around the experiences of child soldiers in Sierra Leone and cited the Convention on the Rights of the Child in support of our arguments, but the Office of the Special Representative for Children and Armed Conflict, the Office of Legal Affairs, and several NGOs felt that the Court’s jurisdiction should extend to the young people who joined without restraint in brutal and wanton violence, while UNICEF, Human Rights Watch, and Save the Children entirely disagreed. The Office of the Special Representative felt that in the particular circumstances of Sierra Leone, some children and young adults would benefit from participating in a process that ensures accountability for one’s actions, respects the procedural guarantees appropriate in administrating juvenile justice, and takes into account the desirability of promoting the child’s reintegration and capacity to assume a constructive role in society. The Special Court might help to ensure that the most recalcitrant and feared young offenders, those perhaps least likely to seek programmatic and therapeutic support, would be brought into a credible system of justice that would result in guided, supervised access to rehabilitation and ensure opportunities for reinsertion into productive civilian life. UNICEF, some local NGOs, and others insisted that the threat of prosecution would undermine their efforts at child soldier rehabilitation, stigmatize the child, reduce the likelihood of community reintegration, and place the child at an increased risk of re-recruitment. Moreover, these organizations felt that prosecutions would run counter to Sierra Leone’s cultural values of healing and forgiveness. Ultimately, the Security Council adopted a Statute that extended personal jurisdiction to persons between ages 15 and 18 at the time of the crime and includes a number of protective and therapeutic provisions to ensure the best interests of children who appear as defendants, victims, and witnesses. The only possible dispositions available to judges are rehabilitation programs. Even so, the Council expressed its ambivalence and noted that it believes “that it is extremely unlikely that juvenile offenders will, in fact, come before the Special Court and that other institutions, such as the Truth and Reconciliation Commission, are better suited to address cases involving juveniles.”23 Very early after his appointment, the Prosecutor stated that he did not plan to prosecute children. Of course, virtually all former child soldiers who had committed war crimes were adults by the time the Truth and Reconciliation Commission and the Special Court began to function. Will young adults in Sierra Leone be better served without resort to judicial proceedings? Have those children and young adults who participated in the Truth and Reconciliation proceedings benefited in some way? We do not know.

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Conclusion It is easy to become complacent when one works at the policy level in the field of children and armed conflict; enormous progress has been made in a relatively short period, particularly as concerns the legal regime. However, no speech, film, or photograph can convey what it was like to have been a child in Sierra Leone or Mozambique during the wars, or in Colombia, Liberia, DRC, or Uganda today. In the field, witnessing children living in or affected by armed conflict, one cannot but despair. I keep waiting for the student who is going to raise her hand and have a new perspective, a new answer, a new question – the one who is going to devote her research to this complex set of issues and come up with something new. Society must ask hard questions about the gap between law and reality, about the utility of stronger laws and new approaches to enforcement, and to always consider the situation of child soldiers within the larger context of all war-affected children.

Notes 1 See UN Convention on the Rights of the Child, opened for signature November 20, 1989, art. 3, 28 I.L.M. 1457. 2 See We the Children: End-decade Review of the Follow-up to the World Summit for Children – Report of the Secretary-General, U.N. GAOR, para. 28, 27th Sess., U.N. Doc. A/S-27/3 (2001) (emphasis added). 3 Geneva Protocol I, Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of International Armed Conflicts, reprinted in 16 I.L.M. 1391, 1425 (1977); Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, December 12, 1977, 1125 U.N.T.S. 609. 4 African Charter on the Rights and Welfare of the Child, OAU Doc. CAB/LEG/24.9/49 (1990), entered into force November 29, 1999 [available online at http://www.africa-union.org]. 5 Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour, June 17, 1999, 38 I.L.M. 1207, 1208 [available online at http://www.ilo.org/public/english/standards/ipec/ratification/convention/text.htm]. 6 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, May 25, 2000, U.N. GAOR, 54th Sess., U.N. Doc. A/RES/54/263 (2000). 7 See Rome Statute of the International Criminal Court, July 17, 1998, U.N. Doc. A/CONF 183/9, art. 8(2)(b)(xxvi), 37 I.L.M. 999 (1998). 8 Children and Armed Conflict: Report of the Secretary-General, U.N. SCOR, 58th Sess., U.N. Doc. S/2003/1053, revised by U.N. Doc. S/2003/1053 Corr. 1, revised by U.N. Doc. A/58/546-S/2003/1053 Corr. 2; Report of the Secretary-General on Children and Armed Conflict, U.N. SCOR, 57th Sess., U.N. Doc. S/2002/1299 (2002); Children and Armed Conflict: Report of the Secretary-General, U.N. SCOR, 56th Sess., U.N. Doc. A/56/342-S/2001/852 (2001); Children and Armed Conflict: Report of the Secretary-General, U.N. SCOR, 55th Sess., U.N. Doc. A/55/163-S/2000/712 (2000). 9 See for example, Report of the Secretary-General on Côte d’Ivoire, U.N. SCOR, paras. 54, 80, 58th Sess., U.N. Doc. S/2003/374 (2003) (calling for additional measures to protect children’s rights); Report of the Secretary-General on the UN Mission in Angola, U.N. SCOR, paras. 35–37, 46, 58th Sess., U.N. Doc. S/2003/158 (2003) (calling for the implementation of child protection and assistance measures); Seventeenth Secretary-General

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Report on the UN Mission in Sierra Leone, U.N. SCOR, paras. 42–43, 58th Sess., U.N. Doc. S/2003/321 (2003), revised by U.N. Doc. S/2003/321/Corr. 1 (discussing the need for increased child protection); Report of the Secretary-General on the United Nations Organization Mission in the Democratic Republic of Congo, U.N. SCOR, paras. 29, 45, 47, 62, 55th Sess., U.N. Doc. S/2000/30 (2000) (referring to measures necessary to protect human and children’s rights); Second Report of the Secretary-General on the United Nations Preliminary Deployment in the Democratic Republic of Congo, U.N. SCOR, paras. 27, 34, 39–40, 54th Sess., U.N. Doc. S/1999/1116 (1999) (discussing the need for measures to protect human rights and children’s rights); Seventh Report of the Secretary-General on the United Nations Observer Mission in Sierra Leone, U.N. SCOR, paras. 20–21, 46–51, 54th Sess., U.N. Doc. S/1999/836 (1999) (reporting on the violation of human rights in general and children’s rights in particular). S.C. Res. 1379, U.N. SCOR, 56th Sess., 4423rd mtg., U.N. Doc. S/RES/1379 (2001). Report of the Secretary-General on Children and Armed Conflict, U.N. SCOR, 57th Sess., U.N. Doc. S/2002/1299 (2002). S.C. Res. 1460, U.N. SCOR, 58th Sess., 4695th mtg., U.N. Doc. S/RES/1460 (2003). See ibid. Children and Armed Conflict: Report of the Secretary-General, U.N. SCOR, 58th Sess., U.N. Doc. S/2003/1053, revised by U.N. Doc. S/2003/1053 Corr. 1, revised by U.N. Doc. A/58/546-S/2003/1053 Corr. 2. S.C. Res. 1539, U.N. SCOR, 59th Sess., 4948th mtg., U.N. Doc. S/RES/1539 (2004), revised by U.N. Doc. S/Res/1539/Corr. 1 (2004). Ibid., para. 105(g). Resolution 1539, issued on April 22, 2004 makes specific requests for action by the Secretary-General and parties to conflicts, and expresses the intent of the Council to take concrete measures. S.C. Res. 1539. Children and Armed Conflict: Report of the Secretary-General, U.N. GAOR, 58th Sess., Annex I, II, Agenda Item 113, at 20–23, U.N. Doc. A/58/546-S/2003/1053 (2003) (stating that “factional fighting groups” in Afghanistan, various state armed forces and nonstate actors in the DRC, nonstate armed groups in the Philippines and in Sri Lanka, and both state armed forces and nonstate armed groups in Uganda “recruit or use children in situations of armed conflict”). See Promotion and Protection of the Rights of Children, U.N. GAOR, paras. 7, 45, 48, 59, 74, 75, 76, 77, 58th Sess., U.N. Doc. A/58/328 (2003); Promotion and Protection of the Rights of Children: Protection of Children Affected by Armed Conflict, U.N. GAOR, para. 47, 57th Sess., U.N. Doc. A/57/402 (2002). Christine Knudsen, “Demobilization and Reintegration During an Ongoing Conflict,” Cornell International Law Journal 3 (No.37), 2004, 497. See Michael Wessells, “Psychosocial Issues in Reintegrating Child Soldiers,” Cornell International Law Journal 3 (No.37) 513–526 (2004); Kathleen Kostelny, “What About the Girls?,” Cornell International Law Journal 3 (No.37) 505–512 (2004). See generally Ilene Cohn, “The Protection of Children and the Quest for Truth and Justice in Sierra Leone,” Journal of International Affairs 55, 1 (2001) (discussing the involvement of children in the Special Court for Sierra Leone and the Truth and Reconciliation Commission in Sierra Leone). Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone, Security Council Resolution 1315 (2000) of August 14, 2000, para. 35.

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Enhancing the role of women in electoral processes in postconflict countries Constitutional and legislative measures Muna Ndulo

Introduction Most parts of the world and countries of different economic levels of development have a huge problem in ensuring the full and equal participation of women in the political process.1 Postconflict societies tend to magnify this problem.2 In postconflict societies, while women endure the same trauma as the rest of the population, literacy rates, poverty, violence, and gender-role stereotyping disproportionately harm/affect women. It seems that the main trend in the foreseeable future is the continuing of unequitable participation of women in political decision-making. This state of affairs deprives women of important rights and responsibilities as citizens. Therefore, women’s interest and perspectives cannot influence key decisions – like decisions on national budgets, major reforms, and the socioeconomic models to follow. This situation is not only discriminatory to women but is also disadvantageous to society as a whole and to future generations, as the situation deprives society of women’s skills and their distinct perspectives. If women are represented in sufficiently large numbers in the decision-making arena, they have a visible impact on the style and content of political decisions.3 This chapter discusses the participation of women in postconflict societies and looks at legislative measures that can enhance the participation of women. It also considers nonlegislative measures such as the role of the media. The chapter first provides a background on constitutional provisions relevant to elections. Next, section “Participation of women in the electoral process” examines the participation of women in elections and the problems that they face in their efforts to participate in elections. The section “Legislative measures to increase women’s participation in the electoral processes” considers legislative approaches that several countries have taken to increase women’s participation. The conclusion focuses on the chances of achieving the objective of improving women’s participation in elections.

The constitution and the electoral process One of the most important measures in the validity of an electoral process is the extent to which the community in which it takes place as well as the international community accepts it as legitimate. Such acceptance flows largely from transparency

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and the extent to which there is full participation by all citizens in the process. Mechanisms for enhancing transparency include: providing an appropriate legal framework, the role of the media, political parties and candidates, and participation by other elements of civil society. An effective voter education program enhances participation of all citizens, and is especially important in postconflict countries with low literacy rates, low observation of human rights, prevalent violence, and an electorate that has not been exposed to regular elections. Arrangements for a credible election process begin with, among other things, formulating a suitable legal framework. Foremost among the pieces of legislation that a country should have in place is an electoral law. An election law not only defines the process, it also describes the functions and responsibilities of the institutions that administer the process outlined in the law. A country’s constitution, as the basis of a country’s governmental structure, typically provides the foundation of the key elements of the electoral framework.4 The constitutional electoral provisions should contain fundamental electoral rights and the basic principles of the electoral system. These include the right to vote and be elected, the age at which citizens qualify to vote, the institutions and offices subject to democratic elections and contestation, the terms of office, and the agency to be trusted with the conduct of elections as well as the essential elements of the electoral system to be used including whether or not there will be constituencies. Two approaches are evident: the first approach is to provide in the constitution whether or not there will be two houses of Parliament; the method to elect the president; whether or not the electoral system is a “first-past-the post” one or a proportional representation one; the size of the houses of Parliament; and how to determine the constituencies. The second approach is for the constitution to create the political institutions for governance and provide that an act of Parliament shall determine a formula for the number of members of Parliament and the number of constituencies. Under both approaches, the election law implements the electoral provisions contained in the constitution by providing a framework for the registration of voters, the conduct of the campaign by political parties for the election or referenda, and the observation of elections by election observers and civil society. In establishing a legal framework for the election process, an initial decision typically is selecting an election system. This involves choosing between proportional representation and a majoritarian system, and the specific variation to be used. When a country adopts a proportional representation system, the election law framers must also consider whether to use national or regional lists or some combination of the two, whether to employ a threshold clause, and which formula to use in allocating seats in the legislative bodies. Where a majoritarian system is used, the drawing of constituency boundaries may become particularly contentious. It should, however, be borne in mind that the choice of a particular electoral system affects the overall legal framework governing the conduct of elections. The electoral system can also be a key factor in promoting the participation of women as well as political accommodation for various stakeholders whereas a poorly designed one can entrench divisions in society and exacerbate preexisting

Role of women in electoral processes 119 conflict and increasingly marginalize women and minority groups. The single member plurality districts are widely considered the least favorable system to elect women and minority group legislators. The choice of an election system, to a large extent, determines the need for a law governing the delimitation of constituencies. If a country adopts a majoritarian system, then such a law is essential and the process governing delimitation becomes among the most important aspects of the overall electoral process. Under a proportional representation system, the delimitation process assumes less importance, although rules are still required to allocate seats in a manner that assumes respect for the one-person one-vote principle. Thus, the law might stipulate allocating seats on a national basis or assigning the number of seats to a constituency/province based on the number of registered votes in the constituency/province or, as in some jurisdictions, on the number of voters actually casting ballots in the constituency/province. An election law requires some means for identifying and registering eligible voters through four possible ways. In some countries, the government relies on pre-existing lists developed for other purposes to prepare the voter registry. This is unlikely in a postconflict society where very often a civil registry does not exist and, because of war, there are complications relating to refugees and internally displaced people participating in elections. Other countries rely on a voter registration process, involving a census conducted by government-appointed officials. A third group of countries require prospective voters to present themselves at a designated registration site before the elections. The legal framework for registering voters should prescribe the officials responsible for registering voters, the period in which registration occurs, the registration venues, the precise procedures to register a citizen, the role of political parties in the process, and the mechanisms for challenging the decisions of registration officials. Finally, some countries permit voters merely to present themselves at the polling site on the date of the election with proof of citizenship and their age. Other issues that election laws address include campaign laws and the manner of voting, which addresses the precise procedures in casting and counting ballots. The legal provisions relating to the campaign are critical in ensuring a meaningful election where voters are adequately informed of the issues and candidates. Typically, campaign laws establish the official campaign period and the activities permitted and proscribed during this period. Some campaign laws go further and deal with media access for political parties with a view to ensure all political parties equal access to the media and to prevent government aligned parties from abusing the media. Campaign laws further deal with such matters as campaign financing and contributions, a code of conduct for political parties participating in the election, and the accreditation and regulation of election observers. Yet another matter is providing for judicial review of the electoral process. The benefit of providing for judicial review is that it builds confidence in the validity of the process, and constitutes a discipline upon the election administration that will have to be conscious that an ordinary court or an electoral court may potentially examine everything that it does. In postconflict elections, more than in any other election, countries must take measures to ensure that the election process is

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administered in an environment free from violence, intimidation, and retribution. The right to vote cannot be guaranteed unless voters can move about freely and can vote without fear of retribution. A difficult security situation is likely to impact more negatively women than men and reduce the participation of women in the political process. In postconflict countries, the state must take all necessary measures to improve the security situation to ensure that both men and women exercise their right to register and vote.

Participation of women in the electoral process The Universal Declaration of Human Rights states that everyone has the right to take part in the government of his or her country.5 As was observed at the Beijing Conference, the empowerment and autonomy of women and the improvement of women’s social, economic, and political status is essential to achieve a transparent and accountable government and sustainable development in all areas of human endeavor.6 Achieving the goal of equal participation of women and men in decision-making will provide a government that more accurately reflects the composition of society, and is needed in order to strengthen democracy and promote its proper functioning. Equal participation in decision-making is not only a demand for simple justice or democracy but is also a necessary condition for women’s interests to be taken into account. Women’s presence in a legislature has significant policy consequences. Women legislators are more likely than their male colleagues to represent women’s interests and to support legislation that is beneficial to women. Women and men have partly conflicting interests and concerns, and thus men cannot act as the exclusive representatives of women. Without the active participation of women and the incorporation of women’s perspectives at all levels of decision-making, the goals of equality, development, peace, and a better life for all cannot be achieved.7 The presence of women legislators affects the legitimacy of the political system in which they serve. As Mark Jones observes, the ability of a legislature to fulfill its function of legitimizing the political system is diminished to the extent that its sex composition is unequal.8 Although many countries have constitutions that recognize legal equality and have widespread movements toward democratization, women are largely underrepresented at most levels of government worldwide, especially in ministerial and other executive bodies, and have made little progress in attaining political power in legislative bodies. Women are also underrepresented in the judiciary, corporate boards, and state boards. The situation is largely a reflection of the intensity of the conflict embodying change between the aspirations of women who take their countries’ constitutions seriously and resistance by men who imagine, despite legislation, that power is necessarily masculine. A number of well-known conditions that affect women disproportionately reinforce this schism. For example, poverty and lack of education impact negatively on people’s ability to exercise civil liberties. People whose focus must be meeting their basic daily needs have little time for political participation and they do not readily see the connection between their political participation and their

Role of women in electoral processes 121 social status. In postconflict countries, women are sometimes afraid to engage in political activity as a result of misuse of power by male-dominated political parties. Autocratic regimes, from which most conflict countries emerge, severely restrain individual rights to freedom of expression, association, and movement; and discrimination, political assassinations, and disappearances are not uncommon. Education is very much the key to include society’s traditionally nonparticipating groups into any successful reform. And yet, in postconflict societies, parents are generally willing to invest more in a boy child than a girl child. Other numerous factors such as the heavy burden of household chores for girls, early marriages, and early pregnancies conspire to reduce the number of girls who attain higher education. The constitution, by emphasizing equal citizenship for all, can be a tool to educate women in particular but also society in general about the right of women to participate in political life. Knowledge must be generated and shared. If people are to be encouraged to act in other ways to organize themselves to protect or promote their interests, they must gain knowledge of alternative ways available and have access to all relevant information. Teaching women about the constitution and its relevance in their lives will help not only to develop a more representative democratic state, but also to set in motion changes in societal thinking about the role of women. Education may consist of seminars and workshops. Nonetheless, in order to reach a broader base of the population, a general dissemination of written information may be useful, through a combination of media such as pamphlets and other written materials, as well as radio and television announcements. In essence, knowledge is the crucial link to the effective empowerment of marginalized groups. Economic factors also come into play in keeping women from fully exercising political participation rights, even if the constitution fully guarantees these rights. The difficult economic situation in most postconflict countries is harder on women than men. In almost all postconflict countries, as elsewhere in the world, women are the poorest of the poor. For example, the 1994 elections in South Africa were held against the background of the legacy of apartheid. In apartheid South Africa, formal restrictions impeded the entry of black women into the workplace. Women worked predominantly in the agricultural and service areas, holding the least skilled, lowest-paid, and most insecure jobs.9 Economic necessity erodes and dilutes any formal rights, including human rights and democratic rights to vote and to seek elective office. Such a situation reduces the casting of the vote by women to a mere physical exercise. Specifically, women are the primary care takers for children, the disabled, the ill, and the elderly. These responsibilities can impede women’s political participation and keep women from realizing their full citizenship rights. Moreover, the division of labor has not changed in favor of women, but rather adds to their burden and poses practical limitations on the possibilities for active involvement of women. It is necessary to address these obstacles by removing them to allow women the full realization of these rights. Possibilities to remove these obstacles include providing childcare facilities, creating safer public places, and improving women’s access to education. Thus, education for democracy and raising awareness of human rights should go hand-in-hand with the economic and financial empowerment of women.

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In many cultures, women face “gender-role stereotyping,” male resistance to women’s participation, limited resources with which to participate, and political structures and processes that impede political activity. They are doubly excluded by the fact that political activities take place in the public domain.10 The largest impediment to the realization of true equality of women in a number of postconflict societies is traditional thinking and religious practices. This often also leads to resistance to new laws because the new laws contradict custom and prevailing social norms.11 In most communities, historical circumstances, religion, and tradition have conditioned women to be hesitant, even reluctant, to take high responsibilities in politics, even when they have considerable formal education. Some countries view women as lacking managerial skills. In other countries, society has trained women to obey and not to debate male decisions. Most important, there is the need to instill in the very minds of the public that women’s rights and democratic freedoms are not synonymous with permissiveness. Likewise, there is need to grapple with the task of concurrently raising a corresponding awareness of women’s rights among men, otherwise, raising awareness of those rights only among women will cause social conflicts and have negative repercussions. There is a need, therefore, to eradicate all vestiges of fear and ignorance among the public that letting women participate fully in the democratic process and allowing them to enjoy all fundamental human rights will mean the destruction of the fabric of society and lead to chaos. On the contrary, ensuring the liberation and empowerment of women will enrich family values and culture and will result in the development of a peaceful and stable society. As Mills observed: “only complete equality between all men and women in legal, political and social arrangements can create the proper conditions for human freedom and a democratic way of life.”12 The goal should be, as the Beijing Conference declared, “to remove all obstacles to women’s active participation in all spheres of public life through a full and equal share in economic, social, cultural, and political decision-making.”13 For example, the structure and organization of parties can be an obstacle to the participation of women. In postconflict situations, men tend to dominate party leadership positions and women tend to lack representation and power in the party structures. Parties may lack internal democracy. Indeed, their internal procedures may be poorly defined, and they may lack constitutions. Such situations are conducive to the domination of parties by elites, usually men, who control the internal recruitment of candidates and may be in a position to change the order of candidates on party lists to the disadvantage of women. Political party leaders may have a stereotyped view of the role of women, which can make it very difficult for women to progress within a party. Where the party system is fluid because parties are exploring either the option of merging or of forming electoral pacts, the party’s male leadership will typically conduct the negotiations with women having little influence, which leads to this situation.

Legislative measures to increase women’s participation in the electoral processes Democratic governance advances the protection of the human rights. Democracy involves three central rights: the right to take part in government, the right to vote

Role of women in electoral processes 123 and to be elected, and the right to equal access to public service. The Universal Declaration of Human Rights states that the will of the people shall be the basis for the authority of government.14 A number of other international instruments reflect the principal concerns underlying democratic governance, like the right of peoples to freely determine their political status and the right of all elements of society to participate in defining the political life of their country. Thus, international instruments that promote and protect human rights are replete with admonitions that popular political participation must be free. While the various instruments do not describe a particular methodology for ensuring such freedom, their essence is clear: to be free, participation in the political process of a country must be conducted in an atmosphere characterized by the absence of intimidation and the presence and respect of a wide range of fundamental human rights. It means that all men and women should have a voice in decision-making, whether directly or through legitimate intermediate institutions that represent their interests. While the Universal Declaration of Human Rights enunciates the basic human rights, the International Covenant on Political and Civil Rights,15 and the Elimination of All Forms of Discrimination Against Women16 elaborate upon the rights contained in the Universal Declaration of Human Rights. Regional conventions such as the African Charter on Human and Peoples Rights,17 the European Convention on Human Rights,18 and the American Convention on Human Rights19 further contribute to their elaboration and protection. The international human rights obligations outlined earlier are as relevant in the context of positive action in as much as they include commitments to equality of treatment. However, international human rights law also recognizes that giving substantive effect to the principle of equality and rectifying disadvantage may require limited and proportionate affirmative action in favor of a disenfranchised group to correct social and historical patterns of unequal treatment. Positive action measures taken in pursuance of securing substantive equality have to be proportionate and necessary to achieve this aim. Article 1.1 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) provides that adoption of temporary special measures aimed at accelerating de facto equality for men and women shall not be considered discrimination as defined in the present Convention, but shall in no way entail as a consequence the maintenance of unequal or separate standards. These measures shall be discontinued when the objective of equality of opportunity and treatment have been achieved.20 Article 7 of CEDAW makes clear that such “temporary special measures may be used to secure equality of political representation.”21 It provides that states shall take all appropriate measures to eliminate discrimination against women in the political and public life of the country and, in particular; shall ensure to women, on equal terms with men, the right to vote in all elections and public referenda and to be eligible for election to all publicly elected bodies.22

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The European Convention on Human Rights appears to impose a similar requirement of proportionality, while recognizing the legitimacy of positive action in redressing patterns of discrimination in the enjoyment of the rights it protects. International obligations therefore require states to guarantee equal treatment for all, but permit the use of proportionate and temporary measures to achieve this goal. In examining what measures a country should take to enhance the participation of women in elections, it should be stated at the outset that the problem is rarely at the constitutional level. There are no legislative barriers to women participating in the election process. Typically, most postconflict constitutions guarantee the right to vote and the right to be elected to all citizens. Almost all constitution and election law frameworks guarantee the right of all citizens to participate in elections. The problem is that, at the implementation level, such guarantees do not result in outcomes that produce significant women’s participation in the election process. Women find that they run into major obstacles when they try to exercise their constitutional rights to vote and be elected. Governments typically lack the resources and gender awareness or political will to address the situation. Other major problems are at a social level, where the new discourses of gender equality may run counter to existing social norms regarding gender roles. In some extreme cases, local authorities and male members of society actively discourage or prohibit women from participating in political activities. Countries have almost invariably used some form of positive action in order to raise the level of women participation beyond minimum levels.23 A number of jurisdictions have adopted two approaches to enhance the participation of women: (1) setting aside a number of reserved seats for women (identified constituencies are restricted to women candidates) and (2) establishing a quota for women. The introduction of quota system represents a change in public policy, from “equal opportunities” to “equality in results.” Although highly controversial, electoral gender quotas are now being introduced at an amazing speed all over the world.24 In Kosovo, an election provision provides that 30 percent of each political party’s top 15 candidates on the party lists must be women. Quotas are now in place in countries as diverse as Morocco, Rwanda, and Indonesia. A country or political party can introduce quotas in a number of ways – at the level of political parties, without national legislation, or at the national level through legislation. National quota laws are far more effective than political party quota rules. First, they apply to all parties, not a select few, and second, the electoral bureaucracy or the courts enforce quota laws, whereas party leadership enforces internal party quota rules. A further distinction must be made between quotas for (1) the pool of potential candidates, (2) the actual nominees, and (3) the elected. An electoral gender quota regulation may, for example, require that at least 40 percent of the candidates on the electoral list be women. Other quota systems are constructed as gender-neutral. They establish a maximum for both sexes. Other jurisdictions implement a “double quota,” in which case legislation requires that a certain percentage of women comprise the electoral list and prevents women candidates from merely being placed at the bottom of the list with little chance of

Role of women in electoral processes 125 being elected. Discrimination is so ingrained in organizational practices that more gradualist forms of affirmative action will produce results only in the long term.25 Quotas improve the representation of women in politics. Bosnia is illustrative of the changes that might result from quotas. It is said that prior to 1992 Bosnia War in the former Yugoslavia, the percentage of women elected to public office fell to an all-time low. By 1990, Bosnia women holding elected office represented a mere 1 percent of parliamentary bodies. In the first election following the Dayton Peace Agreement in September 1996, women’s participation fell below 2 percent, with the women’s party not securing a single seat in any of the three parliamentary bodies conceived by Dayton.26 In recognition of these factors, the Organization for Security and Cooperation in Europe (OSCE), in partnership with Bosnian women activists, took key steps to secure a significant role for women in elected office, most notably through introducing a quota for women candidates. These steps were applied at the national level in 1998 by putting women on closed party lists ballots and subsequently, at the local level in the municipal elections in 2000, on an open party list ballot. Women now hold 18 percent of offices in the parliamentary bodies, cantonal, and municipal level governments.27 A study in Argentina concluded that quotas are the most effective means of achieving gender parity in leadership in the short term. The study indicates that at least in the Argentine provinces, gender quota laws have had a significant positive effect on the percentage of women legislators elected. The experience of gender quotas in Argentina demonstrated the use of quotas as a tool to increase women’s legislative representation, even within a cultural and socioeconomic environment that is not the most conducive to the election of a large population of women legislators.28 Quotas work differently under different electoral systems. They are more easily introduced in proportional representation systems. This is because while in first-past-the post electoral systems candidates fight for elections based on constituencies, a proportional representation system allocates the seats after the vote. But even in a proportional representation system, because few candidates are elected, small parties in small constituencies have difficulties implementing quotas without controversial central interference in the usual prerogatives of the local party organization to select their own candidates. The reserved seats approach reserves a certain number of seats for women.29 Only women can stand as candidates against other women in such seats. For example, article 83 in the recently passed Afghanistan constitution reserves one seat per province for women in both the upper and lower house. It can also be done at the level of political parties. Eritrea, Kenya, Namibia, Sudan, Tanzania, and Uganda all have legislation reserving seats for women in parliament or in local government. In contrast, East Timor defeated a proposal to establish a 30 percent quota for women candidates to be included on party lists for election to the constituent assembly. East Timorese women were more successful in persuading the Special Representative of the United Nations Secretary-General to deny airtime to political parties registering for elections unless they could demonstrate their commitment to gender equality in positioning candidates. This seems to have had some impact.

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While quotas have achieved good levels of women representation in many countries, they are not without critics. Some see quotas as discrimination and a violation of the principle of fairness, competence, and individualism, whereas others consider quotas as compensation for the structural barriers that prevent fair competition and try to right the wrongs in outcomes created by a patriarchaldominated society. Notably, quotas are not without their own dangers for women. The danger to women’s participation is that the quotas might be regarded as a ceiling – thereby actually limiting women’s participation in the electoral process. Depending on the way the quota allocates seats, women occupying the seats might be regarded as special and second-class citizens. Thus, while legislative measures, as discussed, might bring increased women’s representation in the political process, such measures, when they do not rest on previous mobilization, empowerment, and integration of women into all parts of society are not likely to be successful in bringing about effective women’s participation in the political process. Countries can take several nonlegislative measures to improve the participation of women in the political process. One measure that countries must take in postconflict elections is establishing well-organized civic education programs that target women. The programs should not only emphasize the technical aspects of voting, but also emphasize to women the importance of their vote. This is especially important because in most postconflict elections, the majority of the women are illiterate and live in a world which is overwhelmingly patriarchal and shaped by centuries of cultures and religious beliefs that discourage women from participating in politics. This implies providing adequate resources and support to NGOs that are engaged in this kind of work. Many postconflict countries have rampant discrimination of women and do not adequately protect the rights of women. Women are often subjected to gender-based violence. Although a legal framework often exists to provide protection against violence in the electoral process to women, the legal framework and, more often than not, its implementation mechanisms remain largely unresponsive to the experiences of women. There is need to pay significant attention to improving compliance with such a legal framework for elections. Steps must be taken to ensure that the requirements of human rights laws are widely known and applied. It is important to ensure that national legal systems provide accessible and gender sensitive redress for women and that the national institutions respond to the needs, concerns, and experiences of women. There is need to disseminate information about the procedures for redress to the public as widely as possible, to educate women, and to create social awareness among women of their rights and the proper channels where they could report violations of their rights. For example, in Bosnia, the OSCE Mission developed a “woman in politics” program within its Democratization Department in order to boost women’s participation in the legal, economic, and political sectors. It was designed to foster women’s advocacy, networking, education, and cross-entity exchange from the grassroots levels up to the highest echelons of entity and national government.30 The OSCE, in partnership with the Norwegian government, launched the “women can do it” multiethnic training

Role of women in electoral processes 127 program to prepare women to run for office at the municipal level. The “women can do it” seminars were explicitly intended to maximize the opportunities of women candidates to be elected in Bosnia’s next round of municipal elections in 2000.31 Another example is Sierra Leone where, during the 1995 elections, a group of women organized themselves as the Women Organized for a Morally Enlightened Nation (WOMEN) to mobilize women to participate in the elections.32 Another matter that the electoral process often ignores is the role that the media plays in discouraging the participation of women in the electoral process.33 Media research suggests that electoral portrayals can shape the public’s expectations about politicians in general and women’s political participation in particular.34 This is achieved through a dynamic process of integrating political information into cognitive schemes, which guide the voter in drawing inferences and making decisions. The portrayal of women in the media, which perpetuates gender stereotypes, has a negative impact on the participation of women in politics. The media is a product of society and thus it reflects the values, ideas, attitudes, culture, and practices of any given society. Simultaneously, the media influences and shapes society. Typically, women are portrayed as subjects and objects needing input in the form of welfare, or in need of protection from abuse, or as objects to be consumed in the form of goods or sales as well as emphasizing traits such as compassion, warmth, passivity, and emotionality while men are viewed as possessing instrumental strengths such as independence, ambitiousness, objectivity, leadership, and aggression. Very few women are presented as able and efficient decision-makers or leaders. As Mtintso has observed: “when women are reported as poor, helpless victims, as physical objects, or as useless leaders, the recipients of this information take this portrayal as true because: (1) their own experiences of poverty tell them that this is the lot for women; and (2) their own world, which is a microcosm of the patriarchal world, has never shown women playing an effective leadership or decision-making role.”35 Civic education should include programs to sensitize the media to issues that undermine gender equality, as the media plays a critical role in transforming gender relations in postconflict societies. As with other aspects of the election process, the election administration and observation process often excludes women. Women are often underrepresented in the statutory bodies that administer elections and in election officials.36 International observer missions often ignore gender equality issues and are not trained to recognize specific obstacles that women face like discrimination and harassment. Election observation can make a valuable contribution to the conduct of democratic elections by promoting transparency, accountability, and confidence in an election process and the presence of observers can deter violations. This is especially important in postconflict situations where voters may lack confidence in a new system or be suspicious of a peace agreement. Ideally, observation missions should be present during and after elections. Election observation missions should ensure gender balance and address gender issues in their guidelines, including generic guidelines issued by international organizations that define how to properly conduct election observation.

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Conclusion Improving the participation of women in postconflict elections depends on the measures taken to fully implement the constitutional and legislative provisions that guarantee women equal participation and citizenship in the electoral process. This will involve supporting NGOs and other institutions that ensure accountability and monitor the protection of human rights and the provision of government agencies charged with the specific responsibility of promoting women’s rights. This effort cannot succeed unless countries are committed to providing resources and expertise to ensure that NGOs and government agencies and institutions charged with the responsibility of promoting women’s rights function effectively. This will require working to change deeply ingrained attitudes and targeting political parties to force them to become internally democratic and sensitive to women’s needs. The political parties need to include, accept, and welcome women in meaningful positions and in meaningful numbers. One reason more female candidates are not put forward for election is the fact that they are not well-represented in terms of their numbers in the executive leadership of political parties. Even though women are substantially represented in the membership of parties in most countries, few women reach top party leadership positions. Parliaments compared to party decision-making bodies usually have a higher percentage of women. It is important to realize that in almost all political systems, no matter what the electoral regime, it is the political parties, not the voters, which are the real gatekeepers in regard to elected offices. For example, the decision of the Africa National Congress to use quotas has had a substantial effect on the overall representation of women in the South African political system where women representation now compares favorably to that of the Scandinavian countries.37 It is important, therefore, that political parties are made more representative and include women at all levels of leadership.

Notes 1 Saliba Sarsar observes with respect to Arab countries, women, notwithstanding constitutional guarantees in several countries, have little political power. With only a few exceptions, Arab women do not occupy leading executive, legislative, or judicial positions. Five of the seventeen Arab countries do not endorse women’s right to vote and do not give women the right to stand for election. See Saliba Sarcar, “Can Democracy Prevail,” Middle East Quartely VII (No.1), 41 (March 2000). The Expert Group Meeting on Equality in Political Participation and Decision Making (Vienna, September 18–22, 1989) concluded that women in all countries confront a common problem – they are not full participants in the public choices that affect their lives; they are grossly underrepresented in politics and in the civil service, especially at decisionmaking levels, United Nations Commission on the Status of Women, February 1, 1995. 2 Most war to peace transitions are governed by an overall agenda for democratization, which involves one or more of the following issues: free and fair elections, decentralization of government institutions, and mechanisms for increased popular participation in political direction. 3 Nordic countries are the only region in the world where women have achieved a critical mass (a critical mass is estimated to be between 25 and 30 percent representation in

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4 5 6 7

8 9 10

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12 13 14 15 16 17 18 19 20 21 22 23

decision-making bodies), and the public agenda has gradually incorporated issues such as equal rights, women’s control over their own bodies, child care, and protection against sexual violence, which the national budgets reflect. See United Nations Commission on the Status of Women, February 1, 1995, p. 4. Constitution of South Africa, 1996, arts. 23, 41; Constitution of Zambia, arts. 34, 63. United Nations Declaration of Human Rights, United Nations General Assembly, December 10, 1948. G.A. Res. 217A, 3GAOR, Resolutions (A/810), article 21. The Beijing Declaration and Platform for Action, Fourth World Conference on Women, Beijing, China, September 4–15, 1995. New York: United Nations, 1996. Penelope Andrews, “The Stepchild of National Liberation: Women and Rights in the New South Africa,” in Penelope Andrews and Stephen Ellman (eds.), The Post-apartheid Constitutions, The Perspectives on South Africa’s Basic Law. Witwatersrand University Press Publications, June, 2001, at p. 326. Mark P. Jones, “Gender Quotas, Electoral Laws, and the Election of Women: Lessons from the Argentine Provinces,” Comparative Political Studies 31 (No.1), 3 (February 1998). Andrien K. Wing and Eunice P. de Carvalho, “Black South African Women: Toward Equal Rights,” with Eunice P. de Carvalho, Harvard Human Rights Journal 8 (No.57), 1995. Imane Haye observes that in Algeria, men had been authorized to vote on behalf of their wives since 1970, and the practice was extended to all female members of the family, particularly in rural and semirural areas where women rarely go to the local government offices. See Imane Haye, “Algerian Women and Political Choice: A Time of Transition,” Gender And Development 3 (No.3), 25 October, 1995. Birgitte Sorenseb, Woman and Post-conflict Reconstruction: Issues and Sources. WSP occasional paper (No.3), June 1998, p. 1, states that even though the new Zimbabwe constitution grants women many new rights, the reassertion of patriarchal power constantly threatens to undermine these rights. P. 14. He concludes that high hopes for a radical change in women’s position have given way to the realization, and that social relations generated by patriarchy and capitalism have the power to persist, at least in the medium term, and to metamorphose unpredictably in the future. P. 14. J.S. Mill, The Subjection of Women. Cambridge: M.I.T. Press, 1970. For a discussion of Mills on this issue, see D. Held, Models of Democracy. Cambridge: Polity, 1996. The Beijing Declaration and Platform for Action, p. 109. Ibid., article 21 (3). International Covenant on Civil and Political Rights, December 19, 1966. 999 U.N.T.S 171. Convention on the Elimination of All Forms of Discrimination Against Women, G.A.RES.180 (XXXIV 1979), 19 I.L.M.33 (1980). Adopted by the General Assembly of the United Nations on December 18, 1979. OAU Doc. CAB/LEG/67/3/Rev. 5; reprinted at 21 I.L.M. 58 (1982). Adopted by the Organization of African Unity on June 27, 1981. European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 221, E.T.S. 5 adopted at Rome on November 4, 1950. American Convention on Human Rights, O.A.S. Official Records OEA/Ser. K/XVI/1.1, Doc. 65, Rev. 1, Corr. 1 January 7, 1970 P I.L.M. 101 (1970). Convention on the Elimination of all forms of Disaimination Against Women, adopted December 18, 1979, entered into force, September 3, 1981, G.A. Res.34/180, 34 U.N. GAOR Supp. (No.46) at p. 193, U.N. Doc. A/34/46 (1980). Ibid. Ibid. Sweden has the highest proportion of women in Parliament of any country in the world. Sweden has constitutional rights to equality, and the sex equality clause in the constitution explicitly allows positive action. Norway has a broad framework that is similar to that in Sweden. In France, state funding supports political parties, with an

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amount of money corresponding to the number of votes they win in parliamentary elections. The law requires the state to cut a party’s funding if fewer than 49 percent of its candidates are women. See Meg Russell and Colm O’Cinneide, “Positive Action to Promote Women in Politics: Some European Comparisons,” International And Comparative Law Quarterly 52 (No.2), 11 ( July 2003). The United Nations, the Inter-Parliamentary Union, the European Union, and the Organization for Security and Co-operation in Europe have recommended quotas. Jones, “Gender Quotas,” p. 5. Tanya L. Domi, “Advancing Women’s Political Rights in Bosnia-Herzegovina: Making a Difference Early in the Peace Process (A Case Study),” The Harriman Review 14, 36 (November 1–2, 2002). Ibid., p. 36. Mark P. Jones, “Gender Quotas,” p. 18. Drude Dahlerup, Comparative Studies of Electoral Gender Quotas, Department of Political Science, Stockholm University, Sweden, 2001. Domi, “Advancing Women’s Political Rights,” p. 38. Ibid., p. 41. Birgitte Sorensen, Women and Post-Conflict Reconstruction: Issues and Sources. United Nations Research Institute for Social Development Program for Strategic and International Security Studies, WSP OCCASSIONAL PAPER No. 3, June 1998, p. 10. Colleen Lowe-Morna (ed.) “Whose News? Whose Views?,” Southern Africa: Gender in Media Handbook, a Publication of Gender Links, Johannesburg, South Africa 2001. Dafna Lemish and Chava E. Tidler, “Still Marginal: Women in Israel’s 196 Television Election Campaign,” Sex Roles 41 (Nos.5–6), 389 (1999). The study concluded that the naïve viewer of the 1988 television election campaign in Israel would still see women as marginal to the political arena and as relating mainly to the traditional nurturing roles. See p. 391. Ibid., Thenjiwe Mtintso, p. 1. In the 1993 Mozambique elections, only two women were members of the organization that oversaw the election process. See Ruth Jacobson, “Women’s Political Participation: Mozambique’s Democratic Transition,” Gender And Development 13 (No.3), 31 (October 1995). Drude Dahlerup, Comparative Studies of Electoral Gender Quotas.

Part III

Reconstruction and past human rights violations Healing the nations

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Truth commissions versus prosecutions An African perspective Mark S. Kende

Introduction In April 1994, Rwandans killed approximately 800,000 fellow Rwandans in about 100 days. The victims were largely Tutsi tribe members, and the killers were mostly Hutu tribe members.1 Tragically, the United Nations and the international community failed to act. Eventually, Tutsi rebel forces prevailed and the genocide ended. Yet the memory of these horrific events will never end for many Rwandans.2 Unfortunately, numerous other gross human rights violations have taken place in Africa besides genocide. Because of the Holocaust, the twentieth century saw the development of an international human rights law that prohibits genocide and other crimes against humanity. Domestic responses to these atrocities vary in the so-called transitional regimes, but two trends have emerged. Some nations prosecute, or aid in prosecuting, those responsible for human rights violations in international or domestic tribunals. Internationally noteworthy prosecution targets include Augusto Pinochet, Slobodan Milosevic, and Saddam Hussein. These cases echo the post-Second World War Nuremberg proceedings. The establishment of the International Criminal Court and efforts by nations such as Belgium to establish the principle of universal jurisdiction also reflect the prosecutorial trend.3 In contrast, some countries establish truth commissions – over 21 nations have had some kind of truth commission.4 The commissions generally investigate and report their findings about the causes of major human rights violations. Sometimes, they grant amnesty. Perhaps the most famous is the South African Truth and Reconciliation Commission, which Nobel Peace Prize recipient Archbishop Desmond Tutu headed. This chapter addresses the question of whether transitional African governments, whose countries are recovering from human rights abuses, should prosecute or concentrate on truth and reconciliation, perhaps via an amnesty offer (hereinafter “truth and amnesty”). Of course, a nation can do both. But the question is which method should countries prioritize?5 Truth and amnesty is generally preferable when combined with prosecuting and incarcerating those who are still dangerous. Deterrent prosecutions are necessary for the nation’s survival, but retributive prosecutions generally will not help these African nations. This chapter reaches its

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conclusion by analyzing the advantages and disadvantages of the competing approaches.

The truth and amnesty approach In the book, Unspeakable Truths, Facing the Challenge of Truth Commissions, Priscilla Hayner wrote that (1) truth commissions focus on the past; (2) they investigate a pattern of abuses over a period of time, rather than a specific event; (3) a truth commission is a temporary body, typically in operation for six months to two years, and completing its work with the submission of a report; and (4) these commissions are officially sanctioned, authorized, or empowered by the state (and sometimes also by the armed opposition as in a peace accord). This official status gives a truth commission better access to official sources of information, increased security to undertake sensitive investigations, and a greater likelihood that its report and recommendations will receive serious attention from authorities. 6 It is useful to discuss some issues in the South African Truth and Reconciliation Commission (TRC). The TRC probably had the most power of any such Commission, and it was certainly the most prominent one. The 1994 South African Interim Constitution’s epilogue on National Unity and Reconciliation essentially required a TRC: [i]n order to advance . . . reconciliation and reconstruction, amnesty shall be granted in respect of acts, omissions and offenses associated with political objectives and committed in the course of the past. To this end, Parliament under this Constitution shall adopt a law . . . providing for the mechanisms, criteria and procedures, including tribunals, if any, through which such amnesty shall be dealt with at any time after the law has been passed.7 This linkage of amnesty to a truth-telling obligation was unique. The epilogue also said, “[T]here is a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for Ubuntu but not for victimisation.” “Ubuntu” essentially means social harmony.8 Accordingly, the South African Parliament passed the Promotion of National Unity and Reconciliation Act of 1995, which established the TRC, and charged it with investigating gross human rights violations that occurred between 1960 and 1994.9 Perhaps the most controversial part was that the TRC permitted individuals that had violated human rights to apply for amnesty from civil and criminal liability.10 The individuals had to show that their actions were politically motivated and that they testified truthfully. The TRC allowed the victim to question the individual and to offer responsive testimony. If the TRC granted amnesty, the victim was entitled to government reparations.

Truth commissions versus prosecutions 135 Pro-TRC arguments The TRC served two main purposes: first, it helped reveal the truth about apartheid. The TRC discovered and publicized the details of South African activist Steven Biko’s death. As TRC Commissioner Wendy Orr recognized, amnesty was the carrot in the Commission’s carrot and stick approach to obtaining perpetrator confessions.11 Second, the TRC promoted restorative justice as a way to avoid the social divisiveness of domestic Nuremburg-style prosecutions. Victims could tell their stories in a supportive environment without the constraints of judicial testimony – the victim was supposed to experience a catharsis permitting closure, and the perpetrator was eligible for amnesty to resolve his status. Families were able to learn about what happened to their loved ones. The TRC reconciliation goal worked in certain cases. Some victims granted forgiveness to their perpetrators after receiving apologies. This is the Biblical type of forgiveness that Archbishop Tutu prized. One of the most extraordinary stories involved Constitutional Court Justice Albie Sachs. He met with, and eventually shook the hands of, the former South African government agent who tried to assassinate him when Sachs was an exile in Mozambique. Sachs lost an arm in that attack.

Anti-TRC arguments The TRC has been criticized heavily. In AZAPO v. President of South Africa,12 the South African Constitutional Court ruled that the law impinged upon the constitutional right to access the courts.13 The Court found, The effect of an amnesty undoubtedly impacts upon very fundamental rights. All persons are entitled to the protection of the law against unlawful invasions of their right to life, their right to respect for and protection of dignity and their right not to be subject to torture of any kind. When those rights are invaded those aggrieved by such invasion have the right to obtain redress in the ordinary courts of law and those guilty of perpetrating such violations are answerable before such courts, both civilly and criminally. An amnesty to the wrongdoer effectively obliterates such rights . . . . There would therefore be very considerable force in the submissions that Sec. 20(7) of the Act constitutes a violation of . . . [the right of access to court], if there was nothing in the Constitution itself which permitted or authorised such violation.14 Nonetheless, the Court upheld the amnesty provision because the Interim Constitution’s epilogue authorized immunity for acts “committed in the course of the conflicts of the past.”15 The Court also found that the amnesty provision did not violate international law.16 Critics accused the TRC of selectivity in granting amnesty, especially to African National Congress figures. But it is interesting that the African National

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Congress objected to the TRC’s conclusions. In addition, Archbishop Tutu has criticized the government for failing to provide adequate or speedy reparations. Wendy Orr agrees: [O]ne of the biggest hindrances to the amnesty-reconciliation relationship was that, while perpetrators were “rewarded” immediately – most palpably in the case of prisoners, who were released at once, victims have had to wait months and years for reparation. . . . This has understandably led to resentment and anger amongst victims, who feel they are once again being short-changed.17 This suggests another problem – revisiting painful memories can be harmful, not cathartic.18 Indeed, Orr explains that the impetus for the TRC was not so noble; the South African government established it to avoid a military coup by providing an acceptable mechanism for bestowing amnesties.19 Moreover, author Anthea Jeffrey has been critical of the TRC’s procedural deficiencies.20 Jeffrey has noted that the TRC based its amnesty decisions and factual findings on suspect evidence. The TRC has failed to explain some historically important apartheid events. Orr has also questioned the TRC’s lack of transparency on amnesty. Procedural complaints are not unique to South Africa. In Rwanda, community tribunals known as “gacaca” allow victims to confront perpetrators in a village setting as part of a reconciliation and empowerment effort.21 Indeed, the judiciary could not otherwise handle the backlog of criminal trials. Some gacacas have imposed community service sentences. But there are procedural concerns with the gacacas: [H]uman rights groups are approaching the gacaca process with strong reservations. The most serious concern is about the lack of traditional due process; some see gacaca as a form of mob justice, incapable of protecting defendants’ rights to a fair trial. . . . First, defendants have no right to counsel, and the state’s resources go to investigations and prosecutions, but not to defense. Second, judges play a prosecutorial role in addition to their convicting and sentencing role. Third, the system relies largely upon the willingness of community members to speak out and trusts that social pressure will encourage honesty. Social pressure, however, may work against the desired honesty, and defendants may find themselves at the mercy of fearful witnesses, unwilling to speak out in their defense.22 A documentary film, In Rwanda We Say . . . The family that does not speak dies, highlights the potential value of the gacaca as well as its problems.23 For example, one of the accused raised serious questions about a woman’s eyewitness identification, pointing out that the women had an incentive to confirm his guilt, given her prior suffering and his vulnerability.24

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The prosecution option Some experts argue that prosecutions are the only path to justice after massive human rights violations. This position has legal, moral, and political justifications; others disagree. Pro-prosecution arguments Some legal scholars assert that international law requires prosecution.25 Moreover, certain scholars contend that prosecutions are the only ways to achieve deterrence because the possible perpetrators know that they will face consequences if they are caught. Other commentators assert that retribution is essential, and only the criminal process can achieve retribution. Interestingly, legal scholar Juan Mendez argues that prosecutions are more effective than truth commissions at achieving truth and reconciliation. For example, a successful prosecution can bring closure to a victim or a victim’s family. Only this kind of closure can generate social transformation. Mendez maintains that the formal judicial procedures of a trial help ensure discovery of the truth.26 Anti-prosecution arguments Not all legal scholars agree that prosecutions are necessary. Prosecutions in transitional contexts often have an ex post facto flavor, particularly where the prior regime stands newly accused of wrongdoing.27 Moreover, prosecutors may not select defendants objectively, which is more troublesome when the result is prison time, rather than amnesty. In addition, the aggressive adversarial aspects of a full trial with cross-examinations and rebuttals have little restorative value for victims. The trial procedure may limit a final resolution for victims and their families. Trials also do not promote full truth-telling, as the victims testify under the constraints of evidence rules.28 Trials are slow, as the Milosevic and Pinochet proceedings demonstrate. And trials can give the perpetrator a global stage while diminishing the victim. Moreover, the courts and legal systems are often so decimated that due process may not be possible.29 In Rwanda, only 40 of the nation’s 800 lawyers and judges were alive after July 1994.30 Rwanda Given the divergent views on prosecutions, a discussion of Rwanda is useful, as the country has perhaps the most prominent international criminal tribunal in Africa. The UN Security Council established the International Criminal Tribunal for Rwanda (ICTR) in the year of the genocide, 1994. The UN created the ICTR to prosecute those responsible for “systematic, widespread and flagrant violations of international humanitarian law.”31 Its structure and rules closely resemble the more well known International Criminal Tribunal for Yugoslavia. The United Nations administers the two tribunals.

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A recent statement by ICTR Chief Prosecutor, Hassan B. Jallow, summarized the ICTR’s decade of activity: [T]he ICTR has delivered fifteen judgments involving 21 accused, 3 of whom were acquitted and the rest convicted. Of that number, 9 accused persons were sentenced to imprisonment for the remainder of their lives, having been convicted of genocide, crimes against humanity and war crimes. Others have been sentenced to various terms of imprisonment. The trials of 21 other detainees are currently in progress before the Tribunal. They involve 8 ministers, 1 parliamentarian, 2 prefects, 2 senior administrators, 3 bougmestres, 3 military officers, 1 conseiller and 1 other person. Another 21 accused persons are in custody in Arusha, Tanzania, awaiting commencement of their trials. These were people who occupied positions of leadership in Rwanda. They however betrayed that trust and instead used the authority of their office to inflict untold suffering on the innocent people of Rwanda.32 In addition, the ICTR rendered the first international genocide conviction, and, in another case, for rape as a war crime.33 The strategy is to prosecute 60 genocide ringleaders from various walks of life. This is akin to the Nuremberg strategy of showing that evil came from all parts of society.34 The ICTR, however, has problems. The prosecutions have been “lumbering;”35 for example, it has rendered only 15 judgments in 10 years, and several convictions remain on appeal. The ICTR has failed to apprehend some leading suspects. One commentator said, in an understatement, that the ITCR achievements are “very thin,” which is not a good value given the US$1.2 billion dollars spent and the 800-plus staff.36 But blaming the Tanzania-based ICTR entirely is not fair. Rwanda has not cooperated fully with the ICTR, apparently because both the Hutu and Tutsi soldiers engaged in severe human rights violations. The ICTR raised this lack of cooperation with the UN Security Council, but little has been done. The Rwanda government’s response is that it will prosecute its own soldiers.37 But a Human Rights Watch report found that the predominantly Tutsi government has been very lenient.38 By contrast, the Rwanda government apparently executed 22 Hutus that a domestic court convicted of participating in genocide.39 These executions do not create confidence in the impartiality of Rwanda’s domestic tribunals.40 Sierra Leone Sierra Leone attempted to avoid Rwanda’s problems by formally requesting that the UN Security Council create a tribunal to prosecute war crimes.41 The tribunal, the Special Court for Sierra Leone, is, therefore, a unique domesticinternational hybrid.42 Supporters argue that the domestic government’s active role, and the court’s location within Sierra Leone, combined with its international expertise, will prevent the cooperation problems that occurred in Rwanda.43

Truth commissions versus prosecutions 139 Moreover, the Court should cost much less than the ICTR. There are some positive signs in that the Court is pursuing not just the losers, but the victors in the civil war, and the Court indicted former Liberian President Charles Taylor.44 But given that the Special Court is relatively new, its performance cannot be fully assessed. Critics note that the Court’s decision on who to indict between both sides in the civil war is sowing the seeds of further conflict.45 Moreover, the Court barred its President, Geoffrey Robertson QC, “from judging cases involving rebels because of the appearance of bias against them.”46

The importance of context The previous discussion shows that both the truth and amnesty and the criminal prosecution approaches have weaknesses. The option that African societies should utilize depends on the context. Societal goals Nations have several possible goals in the aftermath of mass violence: (1) discovering and publicizing the truth; (2) making a symbolic break with the past; (3) promoting the rule of law and strengthening democratic institutions; (4) deterrence; (5) punishing perpetrators; and (6) healing victims and achieving social reconstruction.47 All of these goals are valuable, and societies must prioritize based on the circumstances.48 Social geography Ethnic divisions are a significant factor in determining how to resolve postconflict issues. One can characterize a postconflict society as either homogenous, dualist, or pluralist.49 Each postconflict society requires a different path. A homogenous society, like Germany and Austria after the Holocaust, results when the fighting virtually wipes out the victim group. Criminal prosecutions may be justified in such a society. Iraq is a pluralist society with Sunnis, Shiites, Kurds, and others all vying for power, and may require a different approach. By contrast, Rwanda is a dualist society, since it is predominantly composed of Hutus and Tutsis. Though a minority, the Tutsis have historically dominated the political system and the economy, thus breeding some of the resentment that fueled the genocide. Reintegration of Hutus is necessary because the two groups will have to live and work side-by-side for the country to prosper.50 The nature of the society and context Priscilla Hayner has developed her own set of factors that each nation should examine: the strength of those groups or individuals who were responsible for the abuses and their ability to control transitional policy choices; how vocal and

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Societies should take account of all of these factors in determining the method of justice to pursue. This is because contextuality is critical to transformational justice because transformation itself is deeply contextual: each nation’s path from past to future is unique and so the engine that drives the transformation can not be generic but must be fitted to each nation’s trajectory. . . . But justice must be shaped to the society where crime is immanent in the law, as it was in apartheid, or where crime is pervasive, though not necessarily formally legalized, as it was in Rwanda. Both of these situations will demand a different mechanism for transformation, as will other situations in other places where the balance between law, violence, and other factors of the transition will vary.52 South Africa and Rwanda are two contrasting examples: “South Africa’s past was marked by an excessive legalism, Rwanda’s genocide was marked by complete lawlessness. Thus promoting the rule of law will mean different things in these two places at the moment of transition.”53 South Africa’s legalism required the postapartheid response to go beyond legal structures and resonate with moral justice. Moreover, apartheid silenced its victims so the restorative mechanism had to bring back their voices and stories. The TRC fits these needs. The problem with this argument is that all repressive regimes silence their victims in some way. But both societies require similar means to accomplish a resolution. “If South Africans have reason to distrust the state, Rwandans have reasons to distrust their own families and communities. It is here, at the local level, that the hard work of reconciliation is to be done.”54 The gacaca process, therefore, is beneficial because it answers this local need. An aggressive national truth and reconciliation process in Rwanda might open up devastating psychic wounds.

Recommendations What conclusions should be drawn from this discussion? Though neither approach can fully remedy horrible human rights violations, most African countries are better off relying on truth and amnesty, and basing prosecutions on deterrence rather than retribution. First, this is more consistent with the African tradition of Ubuntu than western-style criminal proceedings.55 Second, the domestic Rwanda prosecutions and resulting quick executions of Hutus show the danger of a prosecutorial focus in a postgenocidal society. Third, it is hard to imagine countries like South Africa moving forward had an endless series of prosecutions ensued. The TRC is like Winston Churchill’s view of democracy – highly imperfect yet better than the alternatives.

Truth commissions versus prosecutions 141 Perhaps most importantly, a prosecutorial focus continues the cycle of violence. As former federal judge Marvin Frankel eloquently wrote, The call to punish human rights criminals can present complex and agonizing problems that have no single or simple solution. While the debate over the Nuremberg trials still goes on, that episode – trials of war criminals of a defeated nation – was simplicity itself as compared to the subtle and dangerous issues that can divide a country when it undertakes to punish its own violators. A nation divided during a repressive regime does not emerge suddenly united when a time of repression has passed. The human rights criminals are fellow citizens, living alongside everyone else, and they may be very powerful and dangerous. If the army and the police have been the agencies of terror, the soldiers and the cops aren’t going to turn overnight into paragons of respect for human rights. Their numbers and their expert management of deadly weapons remain significant facts of life. . . . The soldiers and police may be biding their time, waiting, and conspiring to return to power. They may be seeking to keep or win sympathisers in the population at large. If they are treated too harshly – or if the net of punishment is cast too widely – there may be a backlash that plays into their hands. But their victims cannot simply forgive and forget.56 One should not take my endorsement of Frankel’s views opposing retribution as a sign that the South African TRC was flawless and that other countries should copy it verbatim. The TRC should have required apologies from those seeking amnesty. The TRC should have ordered these individuals to carry out community service. In addition, the TRC authorizing statute should have mandated prompt and meaningful reparation payments, as did the Chilean government. Moreover, the TRC should have called for the building of memorials and other remembrances.57 But perhaps the most important need in all these countries is dramatic economic and social transformation that allows people to look forward with hope, and not backwards with anger. To that extent, the South African economy has made progress, though the country still has far too many poor, far too many people with HIV/AIDS, and far too much crime. One shining beacon has been the South African Constitutional Court, which has rendered numerous decisions enforcing fundamental human rights and creating a culture that honors the rule of law. Rwanda’s problems are more severe than most transitional societies given the genocide’s breadth. The government could have better spent some of the billion dollars that went to the ICTR on restoring the country’s legal system, educational system, infrastructure, and economy. Such improvements would help the government enforce the rule of law, and provide hope to people. What other African nations could face decisions about how to address a recent history of serious human rights violations? Certainly, the Democratic Republic of the Congo, Sudan, and Nigeria qualify among others. Their efforts to cope with

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these painful histories should carefully consider the experiences of countries like South Africa, Rwanda, and Sierra Leone as well as the contextual factors of the individual situation.

Notes 1 These genocidal events are described by Philip Gourevitch in his book We Wish to Inform You that Tomorrow We will be Killed with our Families. 2 Samantha Power has memorialized this and other similar events in her Pulitzer Prize winning book A Problem from Hell. America in the Age of Genocide. 3 David Tallman, “Universal Jurisdiction: Lessons from Belgium’s Experience,” in Jane Stromseth (ed.), Accountability for Atrocities, National and International Responses. Ardsley, NY: Transnational Publishers Inc., 2003, pp. 375–409. 4 Priscilla B. Hayner, Unspeakable Truths: Confronting State Terror and Atrocity. New York: Routledge, 2001. Some scholars have described truth commissions as a “golden mean” between vigorous prosecution and blanket amnesty. Erin Daly, “Transformative Justice: Charting a Path to Reconciliation,” International Legal Perspectives 12 (2001–2002) pp. 73–183. Blanket amnesty is generally not well regarded. Ibid. at p. 101. This Aristotelian characterization is questionable as prominent and effective national reconciliation commissions have a closer teleological and practical link to amnesty than to prosecution. 5 It can be awkward to do both. A truth commission’s job is to discover unflattering secrets. Yet people will not be forthcoming if they risk being prosecuted. Laura Hall and Nahal Kazemi, “Prospects for Justice and Reconciliation in Sierra Leone,” Harvard International Law Journal 44, 287, 297 (2003). Priscilla Hayner says that justice often goes unfulfilled in countries with truth commissions for reasons unrelated to the commission. Hayner, Unspeakable Truths, at p. 86. 6 Hayner, Unspeakable Truths, at p. 14; See also Priscilla Hayner, “Fifteen Truth Commissions – 1974 to 1994: A Comparative Study,” Human Rights Quarterly 16, 597, 604 (1994). 7 Daly, “Transformative Justice,” at p. 122; Wendy Orr, From Biko to Basson. Saxonwold: Contra Press, 2000, p. 17. 8 State v. Makwanyane, 1995 (3) SA 391 (CC) Par. 224. 9 Anthea Jeffrey, The Truth About the Truth Commission. Johannesburg: South African Institute of Race Relations, 1999, p. 23. 10 Ibid. Indeed, this function was still hotly disputed when I was a Fulbright Scholar in South Africa in 2000. 11 Orr, From Biko to Basson, at p. 124. 12 1996(4) SA 671 (CC). 13 Section 22 of the Interim Constitution was at issue. It provided that “[e]very person shall have the right to have justiciable disputes settled by a court of law or, where appropriate, another independent or impartial forum.” 14 AZAPO, para. 10. 15 Ibid., para. 50. 16 Ibid., para. 30. 17 Orr, From Biko to Basson, at p. 125. See also, Reed Brody, “Somewhere, There is Justice,” International Herald Tribune (October 6, 2005). 18 Hayner, Unspeakable Truths, at p. 141 (“danger of re-traumatization”). 19 Orr, From Biko to Basson, at pp. 89 and 124; Hayner, Unspeakable Truths, at p. 99. 20 Jeffrey, The Truth About the Truth Commission. 21 Rwanda Today: The International Criminal Tribunal and the Prospects for Peace and Reconciliation, An Interview with Helena Cobban, FRONTLINE, March 24, 2004 at p. 5 [available

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online at http://www.pbs.org/wgbh/pages/frontline/shows/ghosts/today/] (last visited April 20, 2004). Jason Strain and Elizabeth Keyes, “Accountability in the Aftermath of Rwanda’s Genocide” in Jane Stromseth (ed.), Accountability for Atrocities: National and International Responses. Ardsley, NY: Transnational Publishers Inc., 2003, pp. 121–122. Though this discussion sounds at first as if it should be part of this article’s prosecution section, the gacaca are fundamentally premised on a restorative justice model in which the typical “sanction” is community service designed to promote the offender’s reintegration. The film was directed by Anne Aghion and was produced by Laurent Bocahut and Anne Aghion. It is distributed by First Run/Icarus Films. [available online at http:www.frif.com/new2004/inrw.html] (last visited July 23, 2004). Notre Dame University showed the film in April 2004 to commemorate the tenth anniversary of the genocide. I was fortunate to attend the showing. A defense of gacaca can be found in: Peter E. Harrell, Rwanda’s Gamble: Gacaca and a New Model of Transitional Justice. March 2003. “Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime,” Yale Law Journal 100, 2537 (1991). Juan Méndez, “In Defense of Transitional Justice,” in A. James Mcadams (ed.), Transitional Justice And The Rule Of Law In New Democracies, p. 1. Mendez is the president of the International Center for Transitional Justice, the U.N. Special Ambassador for Genocide, and a former Amnesty International Prisoner of Conscience in Argentina. But see Eric A. Posner and Adrian Vermeule, “Transitional Justice as Ordinary Justice,” Harvard Law Review 117, 761, 791 (2004) (contending that retroactivity issues exist frequently in ordinary criminal law contexts as well). Daly, “Transformative Justice,” at p. 103; Hayner, Unspeakable Truths, at pp. 100–102. Daly, “Transformative Justice,” at p. 104. Okechukwu Oko, “Confronting Transgressions of Prior Military Regimes: Towards a More Pragmatic Approach,” Cardozo Journal of International and Comparative Law 11, 89–142 (2003). Human Rights Watch Press Release August 7, 2003 [available online at http://hrw.org/press/2003/08/rwanda080703.htm] (last visited April 8, 2004). Statement by Hassan B. Jallow, Chief Prosecutor of the ICTR to the Security Council, June 29, 2004. Rwanda Today, Cobban Interview. Ibid. Romesh Ratnesar, “The Diplomat’s Dance,” Legal Affairs 47, 49 (December 2003). Ruti Teitel has said that the prosecution rarely succeeds when there are major criminal trials in transitional societies. Transitional Justice 7, 30 and 37 (2002); “Recent Publications,” Yale International Law Journal 26, 265, 289 (review of Ruti Teitel’s book); Hayner, Unspeakable Truths, at pp. 88–89. Rwanda Today, Cobban Interview. Statement by Hassan B. Jallow, Chief Prosecutor of the ICTR to the Security Council. Ibid. Oko, “Confronting Transgressions,” at p. 142 n.122. Orr, From Biko to Basson, at p. 190. Rwanda seems to have realized that its domestic courts have problems. See “Rwanda Fires Judges it Calls Unqualified,” New York Times, A8 ( July 22, 2004). (“Rwanda has fired 503 judges and appointed 223 new ones,” officials said Wednesday, a change intended to improve the performance of a judiciary that had been hastily appointed after the 1994 genocide. Rwanda fired the judges because they lacked the qualifications to run a competent and efficient judiciary, said Johnston Busingye, the secretary-general of the Justice Ministry.) It is worth noting that Rwanda has employed three levels of “judicial” proceedings to address the genocide. These include the ICTR, national courts, and the gacaca. Thus, the process is complementary.

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41 The Court commenced operations in January 2002. S. Leone War Crimes Court Opens, CNN.com, March 10, 2004 [available online at http:cnn.worldnews.com] (last visited April 17, 2004). 42 Eric Pape, “Cleaning House,” Legal Affairs, September–October 2003. 43 Ibid. 44 Ibid. 45 Abdul Karim Bangura, “Opinion,” Standard Times (Freetown) [available online at http://allafrica.com/stories/200407070651.html] (last visited July 21, 2004). 46 Rory Carroll, “Chief Judge Sidelined at War Crimes Court,” The Guardian (March 15, 2004) [available online at http://www.guardian.co.uk/print/0,3858,4879797– 103681,00.html] (last visited April 17, 2004). 47 Martha Minow. 48 According to some scholars, Mozambique forgot its bloody past quickly because much of civil society wanted to move forward. Hayner, Unspeakable Truths, at pp. 185–195. 49 Mark A. Drumbl, “Punishment, Postgenocide: From Guilt to Shame to ‘Civis’ in Rwanda,” New York University Law Review 75 (No.5), 1221, 1236 (November 2000). 50 One also thinks of Sudan’s Christians and Muslims, though they generally live in different parts of the country. 51 Unspeakable Truths, at p. 22. 52 Ibid., p. 113. 53 Ibid., p. 153. 54 Ibid., p. 168. 55 Desmond Tutu, No Future Without Forgiveness, 1997, p. 31; Daly, “Transformative Justice,” at p. 95. 56 Carl Frankel, Out of the Labyrinth: Who We Are, How We Go Wrong and What We Do About It. Monkfish Book Publishing (May 1, 2004). 57 Martha Minow.

10 Justice for whom? Assessing hybrid approaches to accountability in Sierra Leone Chandra Lekha Sriram Introduction: between domestic and international justice – the hybrid tribunal This chapter examines the relatively recent innovation of the mixed or hybrid tribunal as a tool to address past serious human rights abuses, and focuses specifically on Sierra Leone. Both domestic and international efforts at justice in postconflict situations have limitations. The hybrid tribunal is an attempt to combine the best features from each form of justice. The hope is that it will avoid some flaws and limitations of domestic transitional justice – that it will be limited or subverted by political hardliners, or that it will have a limited or counterproductive impact on local needs.1 The hope is, simultaneously, that the hybrid tribunal will avoid some of the flaws of international justice, or what I have termed as externalized justice. International justice can have little impact precisely because it occurs at a great distance from the affected society.2 This chapter will first examine some limits of internal and external justice, and then turn to the mixed tribunal as a policy response, generally, and the institution developed in Sierra Leone, specifically. Based on my examination of the mixed tribunal in East Timor, I will suggest that many of the flaws in the East Timor institution remain concerns for the one in Sierra Leone.3 I begin, first, with a discussion of what is at stake for countries that seek to respond to past abuses, and the impact of domestic or international proceedings.

Justice after transition: what is at stake? There is a vast and expanding literature addressing the normative choices of transition, which I will not address in great detail in this section.4 What is needed before engaging in debates about the appropriate response to atrocities – amnesty, truth commission, lustration, and prosecution – is consideration of what is at stake in the transition.5 Such an examination makes clear the importance of national decisions about what is best for society. This does not mean that elite pacts, which often include perpetrators, should make decisions about the choices for the society. Rather, the society in question must seriously examine its needs to determine

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what is best for it. In the heat of discussions about accountability, considerations of domestic society’s needs may be lost. When parties far removed from the issues make decisions, the decisions may be ignored altogether.6 Such considerations lead not to a simple one-size-fits-all policy prescription, but to a more nuance understanding of what is at stake in these choices, and recognition of the uniqueness of each transitional context. Local needs It is important to identify the specific political needs of transitional societies in more detail. The needs of these societies are complex, and may militate for or against punishment; in most instances – and this point is central – the relevant considerations include not only the culpability of the criminal, but also societal needs. Societal needs include stability, democratization, the rule of law, reconciliation, and social learning, all of which require thoroughly addressing local actions.7 Domestic proceedings may seek to address these needs, although they often fail to do so because hard-line political forces limit them, or they provoke a backlash or have counterproductive effects. They may be infeasible because a new or postconflict regime is unwilling or unable to pursue trials; or society may view any trial pursued as politically biased. Because of the shortcomings of domestic justice, it is often the case that justice is also pursued internationally. International justice is also far from perfect – in particular, it may serve some prosecution goals, but may not serve local needs well. Pursuing justice outside the domestic society may serve retributive purposes, may speak to the culpability of the criminal, and, although it is not likely, may serve deterrent purposes. External proceedings are part of a process of reinforcing and elaborating upon global human rights norms, but it is far less clear that it will have positive effects upon the needs of the society itself.8 Pursuing the “globalization” of justice may come at the cost of local needs. Stability, democratization, and the rule of law Transitional societies have numerous urgent needs, with the key needs being stability, democratization, and the enhancement of the rule of law.9 What is most likely to aid in satisfying these needs is frequently less clear. Punishment in domestic institutions might prove counterproductive if it provokes a response from elements of the old regime that undermines the nascent democracy, weakening its legitimacy or undermining its authority over the security forces.10 Such unrest could easily undermine democratic stability and end the democratic experiment. Democracy advocates view democratic rule as morally good, and may be willing to compromise interests of justice in order to preserve the nascent democracy.11 Thus, democracy advocates frequently choose to trade away some degree of accountability in pursuit of a future state where the rule of law reigns and human rights abuses do not take place. Reformers will recognize that the chance of a democratic government emerging is slim when members of the

Hybrid approaches to accountability 147 current regime fear future retribution.12 There is a danger that the threat of prosecutions, which states do with the intent to strengthen the rule of law, could strengthen the nondemocratic regime. This threat may prompt reformers to accept amnesty and other compromises.13 Moreover, the large number of potential defendants may render prosecution of all perpetrators unrealistic.14 There is a risk that prosecutions carried out abroad put the careful domestic compromises and amnesties in peril. Of course, it may be that prosecutions aid the reinforcement of the rule of law, human rights, and democratic processes. For example, prosecution may help prevent another dirty war, not only because members of the former junta (or potential copycats) fear punishment, but also because the rule of law is so entrenched that the return to lawlessness or the abuse of law is virtually impossible. Thus, punishment may serve to restore or install democracy, the rule of law, and respect for human rights by making it clear that the law proscribes certain actions and these actions are subject to punishment.15 On the other hand, amnesty might encourage future abuses by appearing to condone them. The most important effect of trials may be that the rules of a civilized society “cannot be flouted.”16 Further, in addition to enshrining the rule of law and rights in the new society, prosecution may aid social peace by preventing a potential cycle of violence perpetrated by those seeking vengeance for prior wrongs.17 Some might argue that the very social splits that appeared in Chile during the UK Pinochet proceedings illustrated the degree to which the transitional process failed to promote social healing through amnesty.18 Internal trials might thus have some utility for restoring the rule of law and democracy, though they have mixed effects upon stability. External trials, on the other hand, take place because the state has not restored the rules of law and democracy, or because, although the state has established the rule of law and democracy, it is not willing to take domestic action. Typically, external trials do little to aid in strengthening nascent democracies. Furthermore, they might help to hamper already weak judicial and state capacity by depriving domestic authorities of important cases. To the extent that tribunals consistently carry out human rights cases outside the country, locals will not benefit from the use of accountability mechanisms (and the external assistance they often entail) to help to establish, train, and reform the judiciary. The needs of victims There is another powerful reason to pursue prosecutions: concern for the victims. This requires acknowledgment of the costs that the victims have already incurred, and the potential future costs that they may incur if society ignores their claims.19 Victims of violence, in general, tend to lose their sense of control and autonomy, and often feel isolated. After state-sponsored human rights abuses, victims may feel especially isolated, as others in the community often distance themselves, contending that the victims must have done something to deserve this or fearing guilt by association.20

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The paramount concern then should be to lessen victims’ suffering in ways responsive to the harm that they have suffered; the state or relevant international actors should help them to regain a sense of control and to reintegrate them into society. It is also important that the victims actively participate in the process, which would help them to find meaning and a catharsis following seemingly random victimization,21 and restore their dignity by giving them “their day in court.”22 Victims require some formalized process to recognize the harms done to them, though it need not necessarily be a trial – the important thing is official acknowledgment. Thus, officially sanctioned commissions of inquiry may also be of utility.23 Furthermore, public disclosure of the perpetrators’ identities is a form of punishment in itself.24 Of course, a truth commission instead of a trial may serve some of the victims’ needs, and it may ignore larger societal needs, such as the reestablishment of the rule of law and faith in the regime’s legitimacy through public accountability (for example, through prosecutions or open recognition of accountability). A failure to establish the new regime’s commitment to human rights and the rule of law might inadvertently undermine deterrence and send the wrong message to potential coup-makers.25 Lingering resentments over the past may also resurface later, posing problems for the new regime.26 If it is true that such domestic trials only address some of the needs of victims, then external trials may address even fewer of these needs. External trials provide for acknowledgment of the crimes, but acknowledgment comes from outsiders instead of the state or parties implicated in the abuses. Furthermore, given the distance of proceedings, the victims may achieve little sense of satisfaction, and they may not be aware of the proceedings, much less be able to participate. Social/pedagogical effects of trials Trials may do more than deter abuses, set past harms right, or satisfy the victims; they may strengthen a new democracy through their educational impact.27 They are public spectacles that foster discussion and force society to face its recent past. These discussions could help prevent a reversion to past patterns of abuse. The goal of a trial need not be to construct a single narrative of victims and victimizers, but rather to open a dialogue that embodies and enables the liberal virtues of tolerance and respect to be established in society.28 Prosecutions on this basis are still risky, however, and it may be as destabilizing for a new regime to have a trial conducted for pedagogic purposes as it would be to have a trial conducted for deterrence or pure punishment. Instead of fostering dialogue, a trial for pedagogic reasons may widen and reify rifts in society. Actors that one might seek to reeducate are likely to be resistant to assertions that their actions were morally wrong. Internal trials, then, may have mixed effects as pedagogical tools. If they spark backlash, then they may provide the wrong lesson. External trials may have a more limited social instruction effect when much of the citizenry are unaware of

Hybrid approaches to accountability 149 the trials or when past abusers can contend that the proceedings are attacks on the nation by interfering outsiders. National reconciliation Postconflict or transitional societies face difficulties in reconciliation because of factors like the victims and perpetrators living in close proximity.29 Amnesty for the purpose of “national reconciliation” is often suspect because officials of abusive regimes may base it on cynical self-serving arguments. But one might argue that forgiveness is a part of social healing. In countries where massive abuses have occurred, mistrust of fellow citizens and the justice system is widespread, which may render prosecutions counterproductive or ineffective.30 It might be preferable to pass an amnesty law and attempt to begin social healing by focusing on the future rather than the past. In some instances, it might be healthier for all concerned to forgive, if not forget, and move forward.31 Reconciliation might not be a moral “second-best” because there is no practical preferable option. There may still be some moral virtue in the process of reconciling narratives and attempting to reconcile groups and persons.32 In such instances, trials may not aid reconciliation and states should pursue other processes such as truth commissions.33 Truth commissions have been especially common following transitions in Latin America where old authoritarian and military rulers retained significant control over the transition process, limiting the political feasibility of accountability efforts beyond truth telling.34 In instances where locals have found trials to be infeasible or undesirable, international actors may seek to pursue accountability, as in the Pinochet case. Nonetheless, it is unclear that distant trials would serve the desired goals. If local trials have limited conciliatory effect, it seems likely that distant trials have less to offer than reconciliation. They may fail to permeate society or be interpreted in ways that actually undermine reconciliation.

Distance justice: what does it offer? This section will further consider the claim that “externalised justice” achieved through universal jurisdiction might not serve the needs of transitional societies.35 First, it is important to identify the advantages of finding justice “elsewhere” when it seems unlikely at home. Where there are legitimate domestic processes in place that will conduct genuine examinations of past atrocities, there is no need for outsiders to intervene and establish judicial proceedings abroad to supersede the local processes. In the absence of such local action, what can external judicial action offer?36 Lowered political costs Distant justice removes the onus from weak domestic regimes to pursue trials that they may lack the resources or technical capacity to pursue. It may also help to

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shield them from the political unrest or backlash that may attend the trials of powerful figures. Finally, trials elsewhere may be less subject to accusations of political motivation or manipulation. Bringing perpetrators to justice Perhaps the most obvious virtue of international criminal accountability, and the one most frequently invoked, is that it leaves perpetrators of atrocities with “no place to hide.” There is, at a minimum, a certain symbolic effect: former dictators can no longer continue to live off the benefits of despotic rule by traveling abroad to seek expensive medical attention, or even living abroad, thereby staying far from the complaints of their victims. Additionally, the global reach of international criminal accountability might deter other would-be offenders, although, as discussed later, this may not be the case. Retribution One might argue that society should punish past abusers for one simple reason: their actions were reprehensible. There is no concern here with deterrence or bolstering the rule of law – the goal is simply to punish wrongdoing. On this account, then, selective prosecutions and domestic amnesties are unacceptable37 because any wrongdoing requires punishment.38 Some putatively retributive approaches may demand punishment not just because of the atrocious nature of the crime, but also because the failure to punish invites repetition. This point is not a purely retributive argument,39 and relates more directly to deterrence.40 Deterrence Prosecution at home might deter potential violators and strengthen societal respect for the rule of law and new democratic institutions. When the prosecution cannot take place where the crime occurred, one might hope that the spectra of prosecutions taking place anywhere in the world would serve as a powerful deterrent. Nonetheless, there is a practical problem with the hope that prosecution will deter future abuses. Deterrence is based on the assumption that the perpetrator believed or understood that the action was wrong and expected that such wrongdoing would result in negative consequences. Unfortunately, many leaders and active participants in authoritarian and abusive regimes do not believe that they are doing something wrong. If this is the case, then such abuses are undeferrable since potential abusers will see such punishments as unjustifiable, or simply as punishment of behavior that is not analogous to their own.41 Punishment that is carried out far from home might further attenuate such deterrent effects. It is likely that others will view the punishment as illegitimate, sporadic, and thus unlikely to recur or have little impact.42 There is no strong evidence that international trials have a deterrent effect, and some evidence demonstrates the reverse.43

Hybrid approaches to accountability 151 There is little reason to believe that prosecutions effected through universal jurisdiction would have greater deterrent effects. It is even less likely that prosecutions elsewhere will aid in domestic reform efforts. In many instances, the resort to international accountability might well be appropriate where local action is barred. As discussed, international prosecution efforts may be more impartial than domestic efforts. But this may not always be the case – the US belief that its military personnel could be subject to political prosecutions before the International Criminal Court illustrates this concern. Currently, a vast outbreak of politically motivated prosecutions globally appears to be mere speculation. We have not seen frivolous or harassing prosecutions proceed so far, and the majority of jurisdictions that are likely to hear such cases have sufficiently embedded standards of the rule of law and due process that it seems unlikely that they would allow such actions to precede. It seems more plausible that we can expect that the prosecutions will continue to be motivated by a genuine desire to defend fundamental human rights norms.44 It is not clear that doing justice at a distance serves its intended purposes. It is also unclear that well-meaning external actors on the opposite side of the globe or in a neighboring country will take sufficient account of the balance that may already have been struck locally in coming to terms with the past. Taking action after a society has implemented an agonizing set of choices may upset nascent stability and reconciliation.45 The positive impact of distance legal proceedings Following the United Kingdom’s refusal to extradite Pinochet to Spain, he returned to Chile, where domestic legal proceedings began. Despite widespread disappointment that the charges would not be heard in Spain, there was a significant reason for optimism about the impact of universal jurisdiction. Without the proceedings in Spain and the United Kingdom, it seems unlikely that Chile would have advanced the legal proceedings. Perhaps one can expect that actions abroad can have domestic political ramifications that will force bringing perpetrators to justice at home. One may view these developments as part of the “justice cascade” in Latin America, whereby regional norm developments and foreign judicial processes have encouraged processes at home.46 Nevertheless, the impact of this cascade varies in different contexts, according to, inter alia, the degree of democratic consolidation, publicity, and support that the international proceedings have received.47 The lessons of distant justice from Rwanda are somewhat less heartening.

Rwanda Learning from experience: internal and external proceedings for Rwanda The experiences of Rwanda starkly illustrate the mixed ramifications of extraterritorial prosecution. The Rwanda prosecutions have gone forward at home,

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through international tribunals and universal jurisdiction. The international community has advanced several claims regarding the positive impact of the International Criminal Tribunal of Rwanda (ICTR) on Rwanda. These effects include the penetration of international legal norms into the national legal system and the pedagogic effect of the Tribunal’s proceedings.48 Much of the empirical work casts doubt upon these effects, however. In particular, some have raised serious concerns about the relationship of the Tribunal, based in Arusha, Tanzania, and the domestic prosecutions.49 The ICTR and domestic courts have concurrent jurisdiction over crimes relating to the genocide of 1994.50 There are several notable distinctions between the two. The sentences that they can impose are different, as Rwandan courts can impose the death penalty while the Tribunal can not. Although the Tribunal has far greater resources and far fewer defendants to process, it has been very slow to render judgments.51 At its current rate, the Tribunal is not capable of handling the vast number of cases that the Rwandan courts are seeking to address. The Rwandan courts that hear genocide cases use a specialized plea-agreement system, which helps to expedite cases and bring out more information, though there is reason to hold concerns about the potential for the miscarriage of justice.52 The internal trials take place in the midst of a society that underwent the genocide, while the ICTR sits outside the nation’s borders. Finally, the division of labor is one of stratified-concurrent jurisdiction: the Tribunal hears the cases of organizers and leaders, and Rwandan courts handle the cases that are more ordinary. Critics allege that the ICTR’s key failing is its inability to truly penetrate Rwandan society, thus limiting its capacity to enable reconciliation, serve pedagogic purposes, or act as a deterrent.53 The Tribunal has completed several significant cases and has sent a general message against impunity. Nonetheless, critics have noted that the Tribunal is isolated from Rwandan society; it is physically separate from Rwanda, and this limits its capacity to communicate with society. There are few televisions in Rwanda and there is little radio coverage. This means that average Rwandans are not aware of the Tribunal’s work; without public involvement, active or passive, it is unclear that the Tribunal’s work can do much in the way of pedagogy, reconciliation, or deterrence.54 Conversely, the domestic cases, which courts have handled in greater volume and involve detailed confessions, contribute to developing an accurate record of the genocide, which is a necessary component of reconciliation. Other risks: competing mechanisms and selectivity The Rwandan example illustrates a risk that occurs when multiple accountability mechanisms operate simultaneously – that the mechanisms will be in competition. There is also a risk of selectivity, bias, or unfairness in the accusations. Furthermore, the Tribunal and domestic courts have competed for defendants, in several instances requesting the same defendants from governments. This generates a significant degree of incompatibility, given the different procedures and the

Hybrid approaches to accountability 153 disparity in the sentencing options that each employ. The stratified-concurrent jurisdiction approach of the international court means that those who organized the genocide have a veil of protection from the death penalty, while the more “ordinary” offenders do not.55 It seems increasingly likely that, as in Rwanda, we will see several overlapping proceedings. East Timor has had a commission of inquiry, prosecutions in a mixed tribunal, the Special Panel for Serious Crimes created by the United Nations, and discussion of an international tribunal continues.56 Sierra Leone has set up a commission of inquiry and the United Nations authorized a Special Court.57 The risk remains, with the proliferation of such instruments, that they may be contradictory or competing rather than complementary. Furthermore, so long as western nations carry out most prosecutions against former leaders from the global South who have fallen from favor, there is some significant risk that prosecutions will be selective and people may view them as discriminatory.58

Distant justice: a call for caution These problems do not suggest that pursuing war criminals and human rights abusers elsewhere is never appropriate and never serves the needs of the societies where the crimes took place. Rather, they strike a note of caution. There is currently nothing to prevent external national courts from asserting primacy over local national courts. Courts and the international community will need to establish clear limits on the use of internationalized justice.59 Otherwise, there is a risk that resources will flow to external procedures, which do not address some of the most salient needs of transitional societies.

Internationalized justice at home: mixed tribunals If the externalization of justice carries with it the costs and risks articulated thus far, what should be done? Certainly, it cannot be the case that accountability for past abuses should not be pursued, though caution must be exercised in doing so. There might be an alternative model – internationalized tribunals that carry out prosecution at home. The United Nations has created mixed or hybrid tribunals, which may involve domestic and external judges or a complicated mixture of domestic and international law, for East Timor and Sierra Leone, and, after extended negotiations, a controversial mixed tribunal in Cambodia. The experience of East Timor suggests reason for caution. I have examined the Special Panel for Serious Crimes in East Timor, and found that the hybrid mechanisms may not necessarily overcome the problems in externalization. These problems include a sense that the process does not include local citizens, including victims, fails to address many crimes, and does little to foster national reconciliation or capacity-building. Thus, despite the mixed tribunal in East Timor, there continues to be domestic demands for an international tribunal.60 As one commentator suggested, while mixed tribunals were a novel response intended to remedy the shortcomings of domestic or international proceedings,

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the risk remains that these institutions might incorporate the worst aspects of domestic and international systems, rather than the best.61 Thus, prospects for mixed tribunals in Sierra Leone may be limited at best.

The special court for Sierra Leone: mixed tribunal, great expectations The history of the conflict in Sierra Leone is well known62 – conflict between the government and the Revolutionary United Front (RUF) erupted in 1991 and endured for over a decade, resulting in some 50,000 deaths and widespread atrocities including mutilation and sexual violence. The conflict was notable also for the widespread use of child combatants, often abducted and drugged, which were both victims and perpetrators of abuses. It appeared that the conflict would finally end when negotiations in 1999 resulted in the Lome peace agreement and the UN Security Council mandate for a peacekeeping force, UNAMSIL.63 The agreement provoked concern from the international community for its inclusion of amnesty for crimes committed during the conflict, and the United Nations, which acted as a “moral guarantor” of the agreement, issued a reservation that indicated that it did not consider the amnesty provision to cover international crimes. Despite the agreement, fighting and atrocities continued, along with attacks on UNAMSIL. In May 2000, the notorious RUF leader Foday Sankoh was captured, leading to discussions of an international or another type of tribunal to prosecute him and other war criminals. In June, the government asked the United Nations to set up a court to try such cases. Ultimately, the United Nations created a complex system of a commission of inquiry and a mixed tribunal to address accountability for past abuses.64 While both institutions are too new to assess properly, it is worth examining their features briefly and considering their prospects for success. Certainly, the relevance of the proceedings in the tribunal is of concern to many in the international community that seek to support it. This would suggest that the international community has recognized key concerns from the Timorese experience. Whether a mixed tribunal can surmount problems, such as the disconnect between international and local processes, and a lack of understanding by, or inclusion of, the local population, remains to be seen. The Special Court for Sierra Leone may prove an interesting test case. Because the Court is unique in several respects, any discussion of its potential success and limitations must begin with the key features of the institution itself. The general mandate of the Special Court The United Nations created the Special Court through an agreement with the government of Sierra Leone and pursuant to UN Security Council Resolution 1315 in August 2000.65 It is worth noting that the Council was not acting under Chapter VII authority. The Court’s statute, completed on January 16, 2002, gives it the power to prosecute persons that bear the greatest responsibility for serious violations of national and international humanitarian law since November 30, 1996.66

Hybrid approaches to accountability 155 The crimes within the ambit of the Court include crimes against humanity, violations of common Article 3 of the Geneva Conventions and additional protocol II, other serious violations of international humanitarian law, and crimes under national law.67 In March 2002, the United Nations formally ratified agreement for the Court.68 Eight to eleven judges of mixed international backgrounds sit on the Court.69 Following the agreement between the United Nations and the government of Sierra Leone, the Trial Chamber is to contain three judges, one appointed by the government and two by the UN Secretary-General, based on nominations from member states.70 Any additional Trial Chambers will be similarly composed. Five judges are to serve on the Appeals Chamber, of whom the government will select two and the Secretary-General will select three.71 Relation to the Truth and Reconciliation Commission The establishment of the Special Court is nearly contemporaneous with the creation of the Truth and Reconciliation Commission.72 In principle, their responsibilities do not overlap and there should not be any conflicts between the two institutions.73 The Commission, as is common for commissions of inquiry, does not have the power to punish, but rather has the power to investigate the causes, nature, and extent of the violence, and also to make recommendations regarding reparations and legal, political, and administrative reform.74 But concerns remain about the handling of evidence and witnesses, in particular.75 There is a possibility that evidence disclosed to the Commission, which has a different remit and evidentiary requirements, could be brought before the Court.76 The Court must take care to ensure that the introduction of such evidence does not violate due process, and that those who provide evidence are not at risk. Alternatively, it may be the case that in an attempt not to overlap with the Commission, the Court impedes its work – in several instances, indictees held by the Court have not been allowed to testify before the Commission.77 The Special Court’s mandate and relationship to national authorities The Special Court is an exceptional institution, meaning that it is not part of the regular judiciary.78 It is unusual in that it addresses not only crimes under international law, but also some crimes under Sierra Leonean law.79 It is different from other mixed processes, which were grafted onto existing domestic court systems and utilized international judicial staff. The judicial system of Sierra Leone was simply too decimated for such an option to be available; there was also the standard concern that the population might view any prosecutions as victors’ justice or biased.80 The Court does not prosecute offences, as the ratification act explicitly states, in the name of the country.81 The Court can request assistance from the Attorney General to identify and locate persons, serve documents, arrest or detain, or transfer persons to the Court.82 Conversely, the Minister of Justice and the

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Attorney General can make requests to the Court for assistance in transmitting statements and other evidence and in questioning persons the Court detained.83 The Court is unique in that it has concurrent jurisdiction with primacy over the courts of Sierra Leone. This means that upon the Court’s request, domestic courts must relinquish cases to it. A much-debated exception is in instances where peacekeepers and related personnel are alleged to have committed crimes, in which case the state sending the personnel will have primary jurisdiction.84 Mandate, powers, and funding The Court’s immediately apparent weakness lies in its mandate. Because an agreement between the United Nations and the government of Sierra Leone created the Court, rather than a Security Council Resolution under Chapter VII as in the ad hoc international criminal tribunals for the former Yugoslavia and Rwanda, the Court is weak in two senses. First, it lacks the authority that ad hoc tribunals have to demand extradition of suspects from other countries. This means that indictees that seek asylum elsewhere, such as former President of Liberia Charles Taylor, can evade prosecution if the sheltering states do not choose to extradite them to Sierra Leone. The Sierra Leonean conflict had regional dimensions, involving its neighbors as both targets and combatants, yet the Court’s jurisdiction is limited to the territory of Sierra Leone, meaning that even if it had the power to compel extradition, it could not consider cases arising from events taking place outside the country, even if they involved atrocities related to the conflict.85 Second, because the United Nations did not create the Court using its Chapter VII powers, it is not the beneficiary of assessed (compulsory) UN contributions by member states. Given that the Court will seek to try higher-level defendants and will pursue only about a dozen of those, the high-profile holdouts clearly undermine it. Instead, the Court must solicit voluntary contributions, despite the request by the UN Secretary-General, Kofi Annan, that assessed contributions finance the Court.86 As a result, the United Nations scaled back the Court: while initially the budget was US$30.2 million for the first year and $84.4 million for the next two years, it is now set at $16.8 million for the first year and only $57 million total for the first three years. By way of comparison, the annual budgets of the ad hoc criminal tribunals for the former Yugoslavia and Rwanda are approximately US$96 and $80 million, respectively.87 Such financial constraints were clearly a factor in the limited scope of the trials planned. Limited time frame Both pragmatic and political reasons determined the Court’s temporal jurisdiction. Given the scale of atrocities and the duration of the conflict, the UN SecretaryGeneral determined that it would not be feasible for the Court to address atrocities stretching back to 1991. Furthermore, there is much dispute as to the exact date of the initiation of the conflict. While the international community proposed a number of dates, some were politically tendentious because they excluded key

Hybrid approaches to accountability 157 events. Ultimately, the United Nations selected November 30, 1996, the date of the signing of the Abidjan accord, the first comprehensive peace agreement. Even this date has proven controversial; fighting and atrocities were largely in rural areas before this date and fighting reached Freetown only after this date. Some in Sierra Leone have argued that this unfairly implies that only atrocities occurring in Freetown matter.88 Others have argued that the open-ended jurisdiction is also flawed, and that the United Nations should not have established the Court while hostilities were underway.89 The date to terminate the Court’s jurisdiction is indeterminate, as the hostilities were ongoing at the time of the Court’s creation. Processing child combatants As noted, the use of child combatants characterized the conflict in Sierra Leone. As such, children were both victims and perpetrators, and the statute of the Court reflects this complicated fact.90 The Court’s statute provides for the possibility of prosecuting child perpetrators of atrocities between the ages of 15 and 18, and criminalizes the forcible recruitment of children for combat. The possibility that the Court might prosecute individuals under the age of 18 raised serious concerns among human rights advocates, and ran counter to the apparent precedent set in the Rome statute, which limits the International Criminal Court’s jurisdiction to those over the age of 18. Many were concerned that judicial proceedings would not help to rehabilitate and reintegrate former child combatants, many of whom were forcibly recruited and were victims themselves, but would further marginalize them.91 This concern now appears to be moot, as the Special Court’s Prosecutor, David Crane, announced in November 2002 that he would not bring any cases against those between 15 and 18 years of age.92 Dispute over the validity of amnesty in the Lome peace accord The Court’s establishment has had significant ramifications for the controversial amnesty embedded in the Lome peace accord.93 Article 10 of the Court’s statute provides that amnesty for the crimes covered in the statute would not bar prosecution. If blanket amnesty were still in force, it would radically constrict the Court’s temporal jurisdiction to crimes committed only after the signing of the accord in 1999. Nevertheless, the international community has advanced several arguments against having amnesty constrain the Court’s prosecutions. First, as noted, the United Nations issued a reservation at the time it signed the accord, indicating that amnesty could not cover international crimes such as genocide, crimes against humanity, war crimes, or other serious violations of international humanitarian law. The argument was thus made that to the degree that the amnesty was valid, it was valid only with respect to domestic crimes. The United Nations was not party to the agreement, but rather, along with a number of other institutions and governments, agreed to act as guarantor of the agreement. Thus, the United Nations argued, it did not breach any agreement by creating the Court. But the government of Sierra Leone was a party to the Lome peace

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accord, and entered into a contract with the United Nations to create the court. The government has argued, as have others, that the continued violation of the peace accord, through fighting and atrocities on the part of the RUF, nullified the amnesty provision.94 In March 2004, the Court had occasion to consider the validity of the amnesty and Article 10. The Court found that it could not consider the Lome peace accord to be a treaty, and thus the amnesty contained in the Lome peace accord would only have a domestic effect and domestic law would regulate it. As a result, it could have no effect upon an international court.95 The legacy of the Special Court: unrealistic expectations? A common criticism of international trials is that they fail to assist national reconciliation, and do not contribute to the reinstitution of the rule of law. One might hope that mixed tribunals, by virtue of functioning within the society, can counter the first objection. Significant hopes have been pinned on the Special Court’s capacity to assist in the second as well.96 Recent research by the United Nations Development Program and the International Center for Transitional Justice has indicated that many in Sierra Leone hope that the Court will leave a greater “legacy” than simply the record of a few prosecutions. Great, perhaps unrealistic, hopes are that it will contribute to institution-building, helping to build a shattered judiciary, revitalize legal education, and assist in legal reform, even as it is expected to contribute to reconciliation. Many involved in the Court’s work hope to meet some of these expectations, although there are real concerns that doing so may divert efforts of the Court’s staff and, more generally, that the Court is not the appropriate institution to support broader capacity-building in the country.97 First, there is an expectation that the Special Court can help to rebuild the shattered judicial system. The Court is formally separate from the judicial system of Sierra Leone.98 This separation has created concerns among the Court’s members that they must ensure that they leave a legacy for the country beyond the specific trials. External actors, such as donors and the United Nations, are also concerned that activities of the Court serve to benefit and strengthen the domestic legal and judicial system. This is particularly important in Sierra Leone, where the court system lacks even the most basic elements, including law reports from past decisions. The system is rife with funding and morale problems, corruption, and challenges to its independence. Members of the Special Court have attempted to engage in outreach to domestic legal authorities, members of civil-society groups, and the law school in Freetown. The members intend for the outreach effort to build basic legal capacity and explain the role of the prosecutions and procedure, which includes the rationale for due process and the need for defense attorneys.99 The Court’s relationship to national justice mechanisms has not been consistently positive. The Court has necessarily lured many talented legal experts away from current or potential roles in the national legal system. It has also taken land from the Prison Service, including land intended for a new training school.

Hybrid approaches to accountability 159 Actors involved in the functions of the Special Court, whether from United Nations Development Program, bilateral donors, and the World Bank, or the judges themselves, are far more concerned with the Court’s impact on victims, the wider community, and national legal capacity than in other externalized or mixed tribunal experiences.100 This is certainly a positive development. But there have been negative effects on local capacity, and outreach is limited.101 The United Nations, correctly, did not design the Court to be a mechanism to build national legal capacity. Concerns should remain if the Court diverts attention and resources from other domestic needs, as it appears likely to do.

Conclusion: problems and prospects of internal, external, and mixed justice This chapter examined the possible flaws of externalized or distant justice, as well as the challenges and limitations of domestic justice. Next, it turned to externalization reversed, or the use of mixed tribunals with foreign and national judges, as a possible solution to some flaws of externalized justice. Just as domestic trials, even where feasible, may not achieve all of their putative goals, distant trials may be less likely to do so. Mixed tribunals might not be able to address the flaws of internal and external justice in the ways that their advocates suggest that they might. This chapter then turned to the somewhat unrealistic expectations placed upon the Special Court for Sierra Leone in order to consider its prospects in addressing key concerns for Sierra Leone society. The Court has significant shortcomings that may limit its ability to operate successfully or contribute to the needs of a postconflict country. Furthermore, the expectations placed upon the Court to provide capacity-building and a broader legacy for the country’s judiciary may be unrealistic. Trials in mixed tribunals, like those in purely domestic or international institutions, are not necessarily a panacea, addressing all needs of societies emerging from violence, repression, or war.

Notes 1 See Chandra Lekha Sriram, Confronting Past Human Rights Violations: Justice vs. Peace in times of Transition. London: Frank Cass, 2004 for an extended discussion of these challenges as well as of the voluminous literature on transitional justice generally. 2 An extended version of this discussion, with a greater examination of international accountability, can be found in Chandra Lekha Sriram, “Revolutions in Accountability: New Approaches to Past Abuses,” American University International Law Review 19 (No.2), 101–279 (2004). See generally Jonathan I. Charney, “Progress in International Criminal Law?,” American Journal of International Law 93, 452 (1999); Chandra Lekha Sriram, “Universal Jurisdiction: Problems and Prospects of Externalizing Justice,” Finnish Yearbook of International Law 12, 47–70 (2001); Ruth Wedgewood, Harold J. Jackson, and Jonathan Charney, “International Criminal Law and the Role of Domestic Courts,” American Journal of International Law 95, 120 (2001); “Accountability for War Crimes: Progress and Prospects: Hearing Before the Commission on Security and Cooperation in Europe,” The United States House of Representatives, 106th Cong. (1999) [available online at http://www.house.gov/csce] (last visited October 12, 2003).

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3 Chandra Lekha Sriram, “Globalizing Justice: From Universal Jurisdiction to Mixed Tribunals,” Netherlands Quarterly of Human Rights 22, 1 (2004). 4 See generally Sriram, Confronting past human rights violations; Ruti G. Teitel, “Transitional Justice Genealogy,” Harvard Human Rights Journal, 16, 69 (2003); David J. Scheffer, “Gary Jonathan Bass’s Stay the Hand of Vengeance: The Politics of War Crimes Tribunals,” American Journal of International Law 95, 970 (2001). 5 See Chandra Lekha Sriram, “Truth Commissions and Political Theory: Tough Moral Choices in Transitional Situations,” Netherlands Quarterly of Human Rights 18 (No.4), 471–492 (2000). 6 See Jose E. Alvarez, “Crimes of State/Crimes of Hate: Lessons from Rwanda,” Yale Journal of International Law 24, 370–385 (1999). 7 See Sriram, Confronting Past Human Rights Violations, (2004) introduction. 8 See Ellen Lutz and Kathryn Sikkink, “The Justice Cascade: The Evolution and Impact of Foreign Human Rights Trials in Latin America,” Chicago Journal of International Law 1, 19 (2001). 9 See Samuel H. Barnes, “The Contribution of Democracy to Rebuilding Postconflict Societies,” American Journal of International Law 96, 86, 92–99 (2001); Ruti Teitel, “Transitional Jurisprudence: The Role of Law in Political Transformations,” Yale Law Journal 106, 2009, 2014 (1997). See generally Hansjorg Strohmeyer, “Collapse and Reconstruction of a Judicial System: The United Nations Missions in Kosovo and East Timor,” American Journal of International Law 95, 46 (2001). 10 See Carlos S. Nino, “The Duty to Punish Past Abuses of Human Rights Put into Context: The Case of Argentina,” Yale Law Journal 100, 2619, 2639 (1991). 11 See Jamal Benomar, “Justice After Transitions,” Journal of Democracy 4, 1, 4–5 (1993); see also Naomi Roht-Arriaza, “Conclusion: Combating Impunity,” in Roht-Arriaza (ed.), Impunity and Human Rights in International Law and Practice. New York: Oxford University Press, 1995, pp. 281, 296; Diane Orentlicher, “Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime,” Yale Law Journal 100, 2537, 2545 (1991). 12 See Jon M. Van Dyke and Gerald W. Berkley, “Redressing Human Rights Abuses,” Denver Journal of International Law and Policy 20, 243, 246 (1992). 13 See Stanley Cohen, “State Crimes of Previous Regimes: Knowledge, Accountability, and the Policing of the Past,” Law and Social Inquiry 20, 34–35 (1995). 14 See Van Dyke and Berkley, “Redressing Human Rights Abuses,” at p. 252. 15 See ibid., at pp. 244–245; see also Raul Alfonsin, “ ‘Never Again’ in Argentina,” Journal of Democracy 4, 15, 18–19 (1993); Ronald J. Rychlak, “Society’s Moral Right to Punish: A Further Exploration of the Denunciation Theory of Punishment,” Tulane Law Review 65, 299, 308–314 (1990). 16 See Aryeh Neier, War Crimes: Brutality, Genocide, Terror, and the Struggle for Justice, New York: Times Books, 1998, p. 222; Diane Orentlicher, “Transition to Democracy and the Rule of Law,” American University Journal of International Law and Policy 5, 965, 1056 (1990). 17 See Amnesty International, “Policy Statement on Impunity,” in Neil Kritz (ed.), Transitional Justice: How Emerging Democracies Reckon With Former Regimes. Washington, DC: USIP Press, 1995, pp. 219–221; see also Human Rights Watch, “Policy Statement on Accountability for Past Abuses,” in Kritz (ed.), Transitional Justice, pp. 217–218; Rodley Nigel, “Torture and Conditions of Detention in Latin America” in Jaaun Mendez, Guillermo and Paul Pin Heiro (eds), The Rule of Law in Latin America, University of Notre Dame Press, Indiana, 1999, pp. 25–42. 18 See Nehal Bhuta, “Justice without Borders? Prosecuting General Pinochet,” Melbourne University Law Review 23, 499, 523 (1999). 19 See Naomi Roht-Arriaza, “Punishment, Redress, and Pardon: Theoretical and Psychological Approaches,” in Roht-Arriaza (ed.), Impunity and Human Rights, pp. 13, 16–19; see also Jaime Malamud-Goti, “Punishing Human Rights Abuses in Fledgling

Hybrid approaches to accountability 161

20

21 22

23

24

25 26 27 28 29

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31 32 33

Democracies: The Case of Argentina,” in Roht-Arriaza (ed.), Impunity and Human Rights, p. 160. See Roht-Arriaza, “Punishment, Redress, and Pardon,” p. 19; see also MalamudGoti, “Punishing Human Rights Abuses,” pp. 166–168; Jamie Malamud-Goti, Game Without End: State Terror and the Politics of Justice. Norman, OK: University of Oklahoma Press, 1996, p. 9; Martha Minow, Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence. Boston, MA: Beacon Press 1998, p. 21. See Roht-Arriaza, “Punishment, Redress, and Pardon,” p. 19. See Van Dyke and Berkley, “Redressing Human Rights Abuses,” p. 244 . See also Lynn Berat and Yossi Shain, “Retribution or Truth-Telling in South Africa? Legacies of the Transitional Phase,” Law and Social Inquiry 20, 166 (1995); see also Juan E. Méndez, “In Defense of Transitional Justice,” in A. James McAdams (ed.), Transitional Justice and the Rule of Law in New Democracies. Notre Dame, IN: University of Notre Dame Press, 1997, pp. 1, 3–4. See The Justice and Society Program of the Aspen Institute, State Crimes: Punishment or Pardon? Boulder, CO: Aspen Institute, 1989, p. 93; see also Aryeh Neier, “What Should be Done About the Guilty?,” New York Review of Books, 34 (February 1, 1990); Priscilla Hayner, “Fifteen Truth Commissions – 1974 to 1994: A Comparative Study,” Human Rights Quarterly 16, 597, 607–609 (1994); Priscilla B. Hayner, Unspeakable Truths: Confronting State Atrocity and Terror. New York: Routledge 2001, pp. 24–27; Minow, Between Vengeance and Forgiveness, pp. 60–62. But see Benomar, “Justice After Transition,” p. 10. See Roht-Arriaza, “Punishment, Redress, and Pardon,” pp. 19–21; see also Van Dyke and Berkley, “Redressing Human Rights Abuses,” p. 246; see also Margaret Popkin and Naomi Roht-Arriaza, “Truth as Justice: Investigatory Commissions in Latin America,” Law and Social Inquiry 20, 79, 105–107 (1995). See Roht-Arriaza, “Conclusion: Combating Impunity,” p. 292 . See Berat and Shain, “Retribution or Truth-Telling,” pp. 166–167 . See Mark Osiel, Mass Atrocity, Collective Memory, and the Law. New Brunswick, NJ: Transaction Publishers, 1997. See ibid., at p. 2 See Chaim Kaufmann, “Possible and Impossible Solutions to Ethnic Civil Wars,” International Security 20, 136–137 (1996). But see Nicholas Sambanis, “Partition as a Solution to Ethnic War: An Empirical Critique of the Theoretical Literature,” World Politics 52, 437, 479–482 (2000). See Peter Uvin, “Difficult Choices in the New Post-conflict Agenda: The International Community in Rwanda after the Genocide,” Third World Quarterly 22, 177, 181 (2001); see also Peter Uvin and Charles Mironko, “Western and Local Approaches to Justice in Rwanda,” Global Governance 9, 219, 220–222 (2003); Michael P. Scharf, “Responding to Rwanda: Accountability Mechanisms in the Aftermath of Genocide,” Journal of International Affairs 52, 621, 628 (1999); Mark A. Drumbl, “Punishment, Postgenocide: From Guilt to Shame to Civics in Rwanda,” New York University Law Review 75, 1221, 1254–1256 (2000); Frank M. Afflitto, “Victimization, Survival, and the Impunity of Forced Exile: A Case Study from the Rwandan Genocide,” Crime, Law, and Social Change 34, 77, 90–93 (2000). See Van Dyke and Berkley, “Redressing Human Rights Abuses,” p. 246; see also Donald W. Shriver, Jr, An Ethic for Enemies: Forgiveness in Politics. New York: Oxford University Press, 1995, pp. 42–44. See generally Susan Dwyer, “Reconciliation for Realists,” Ethics and International Affairs 13, 81 (1999). It is worth observing that choosing amnesty for the sake of reconciliation may come at a high cost to other desired goods such as, inter alia, the (re)installation of the rule of law and the needs of victims.

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34 See Popkin and Roht-Arriaza, “Truth as Justice.” 35 One may also assess external justice in terms of the quality of procedural justice, but that issue is set aside for the purposes of this chapter. See James Meernik and Kimi Lynn King, “The Effectiveness of International Law and the ICTY – Preliminary Results of an Empirical Study,” International Criminal Law Review 1, 343, 353 (2001). 36 I do not address other possible goals of prosecutions or other accountability proceedings, such as rehabilitation, or, where provision is made, reparation, as these are not primary goals of the proceedings that I am examining here. But see George S. Yacoubian, “Sanctioning Alternatives in International Criminal Law: Recommendations for the International Criminal Tribunals for Rwanda and the Former Yugoslavia,” World Affairs 161, 52 (1998). 37 See Nino, “The Duty to Punish Past Abuses,” pp. 2619–2621. 38 See Rychlak, “Society’s Moral Right to Punish,” at 325–333; see also Neier, War Crimes, pp. 83–84; Carlos S. Nino, “A Consensual Theory of Punishment,” Philosophy and Public Affairs 12, 289, 297–298 (1983). 39 See Mackie, “Morality and the Retributive Emotions,” pp. 4–6; see also Jeffrie Murphy, “The Retributive Emotions, and Forgiveness and Resentment,” in Jeffrie Murphy and Jean Hampton (eds.), Forgiveness and Mercy. New York: Cambridge University Press, 1988, pp. 1, 1–27. But see Jean Hampton, “Forgiveness, Resentment, and Hatred,” in Murphy and Hampton (eds.), Forgiveness and Mercy, pp. 35, 36–40. 40 See Benomar, “Justice After Transition,” p. 4; see also Neier, War Crimes, p. 222. I would contend that these arguments that point to such effects rather than the nature of the crime or offender ought to be separate from pure retributive arguments. See Alfonsin, “ ‘Never Again’ in Argentina”; see also J.L. Mackie, “Morality and the Retributive Emotions,” Criminal Justice Ethics 1, 3, 4 (1982). 41 See Naomi Roht-Arriaza, “The Legal Setting,” in Impunity and Human Rights in International Law and Practice, pp. 13, 14; see also Rychlak, “Society’s Moral Right to Punish,” pp. 309–310. 42 See Sriram, “Universal Jurisdiction,” p. 66. 43 See David Wippman, “Atrocities, Deterrence, and the Limits of International Justice,” Fordham International Law Journal 23, 473, 474–484 (1999). A possible explanation for the ineffectiveness of deterrence is that the tribunals affect too few people to have an impact on the masses and that they lack the frequency of and consistency amongst punishment for similar crimes. See also Carrie Gustafson, “International Criminal Courts: Some Dissident Views on the Continuation of War by Penal Means,” Houston Journal of International Law 21, 51, 60–63 (1998); Christopher Rudolph, “Constructing an Atrocities Regime: The Politics of War Crimes Tribunals,” International Organization 55, 655, 683–684 (2001). 44 See Ruth Wedgwood, Harold J. Jackson, and Jonathan Cherney, “The United States and the Statute of Rome,” American Journal of International Law 95, 124, 129–130 (2001). But see Kissinger, “The Pitfalls of Universal Jurisdiction,” Foreign Affairs 80 ( July/August 2001). 45 See Drumbl, “Juridical and Jurisdictional Disconnects,” p. 126. 46 See Lutz and Sikkink, The Justice Cascade, p. 4. 47 See ibid., at pp. 31–32. 48 See Kenneth W. Abbott, “International Relations Theory, International Law, and the Regime Governing Atrocities in Internal Conflicts,” American Journal of International Law 93, 361, 375–376 (1999). 49 See International Crisis Group, International Criminal Tribunal for Rwanda: Justice Delayed (2001) [available online at http://www.crisisweb.org/home/index.cfm?id1878&l1] (last visited October 15, 2003); see also International Criminal Tribunal for Rwanda, General Information About the Tribunal: Introduction (providing an overview of the Tribunal and its base) [available online at http://www.ictr.org/org/ENGLISH/geninfo/ intro.htm] (last visited October 22, 2003).

Hybrid approaches to accountability 163 50 See Bernard Muna, Neil J. Kritz, Hon. Navanetbem Pillay and Hon. Theogene Rudasingwa, “The Rwanda Tribunal and its Relationship to National Trials in Rwanda,” American University International Law Review 13, 1469, 1473 (1998); see also Madeline H. Morris, “The Trials of Concurrent Jurisdiction: The Case of Rwanda,” Duke Journal of Comparative and International Law 7, 349, 362 (1997). 51 See International Crisis Group, Justice Delayed (2001), p. 344. 52 See Morris, “The Trials of Concurrent Jurisdiction,” pp. 359–361. 53 See Uvin and Mironko, “Western and Local Approaches to Justice,” p. 226; see also International Crisis Group, The International Criminal Tribunal for Rwanda: The Countdown–Executive Summary and Recommendations (2002) [hereinafter ICG Countdown] [available online at http://www.crisisweb.org/home/index.cfm?id1878&11] (last visited November 19, 2003). 54 See International Crisis Group, “Rebuilding Liberia: Prospects and Perils,” Africa Report No. 75, January 30, 2004. 55 See Morris, “The Trials of Concurrent Jurisdiction,” p. 356. 56 See Amnesty International, Still Waiting for Justice in Timor-L’Este, June–July 2003 [available online at http://www.amnesty.org.au/airesources/newsletterJuneJuly03/ timor-leste.asp] (last visited December 18, 2003). 57 See U.N. Approves War Crimes Court for Sierra Leone, Reuters, January 3, 2002 [available online at http://www.globalpolicy.org/intljustice/tribunals/2002/0401sl.htm] (last visited October 15, 2003). 58 See Bhuta, “Justice without borders?,” p. 528. 59 See Kevin R. Gray, “Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium),” European Journal of International Law 13, 561, 723–724 (2002) [available online at http://www.ejil.org/journal/Vol13/ No3/sr1.html] (last visited December 13, 2003); see also The Princeton Principles on Universal Jurisdiction. Princeton, NJ: Program on Law and Public Affairs, 2001, p. 11. 60 Sriram, “Revolutions in Accountability,” pp. 401–419. 61 See Suzanne Katzenstein, “Hybrid Tribunals: Searching for Justice in East Timor,” Harvard Human Rights Journal, 16 (2003). 62 See generally John Hirsch, Sierra Leone: Diamonds and the Struggle for Democracy. Boulder, CO: Lynne Rienner Publishers. Inc., 2001. On the regional dimensions of the conflict, see Michael Pugh and Neil Cooper, with Jonathan Goodhand, “Sierra Leone in West Africa,” in War Economies in Regional Context. Boulder, CO: Lynne Rienner, 2004 and Comfort Ero and Jonathan Temin, “Sources of Conflict in West Africa,” in Chandra Lekha Sriram and Zoe Nielsen (eds.), Exploring Subregional Conflict: Opportunities for Conflict Prevention. Boulder, CO: Lynne Rienner, 2004. 63 Peace Agreement Between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone, UN SCOR, annex UN DOC S/1999/777; for the mandate of the United Nations Mission in Sierra Leone (UNAMSIL), see SC RES 1270, UN Cod. S/RES/1270 (1999). 64 See Special Court Agreement, 2002, Ratification Act, 2002 Supplement to Sierra Leone Gazette CXXX (No.II) (March 7, 2002) [hereinafter Ratification Act 2002] (outlining the administration of the Special Court). See generally Abdul Tejan-Cole, “The Special Court for Sierra Leone: Conceptual Concerns and Alternatives,” African Human Rights Law Journal 1, 107–126 (2001). 65 See S.C. Res. 1315, U.N. SCOR, 55th Sess., 4186th mtg, U.N. Doc. S/Res/1315 (2000). 66 See Statute for the Special Court, Office of the Attorney General and Ministry of Justice, Special Court Task Force, art. 1 ( January 16, 2002) [hereinafter Special Court Statute]. 67 See ibid., art. 2. 68 See Ratification Act 2002. 69 See Special Court Statute, art. 12. 70 See ibid. 71 See ibid.

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72 See Peace Agreement Between the Government of Sierra Leone and The Revolutionary United Front of Sierra Leone, art. VI ( July 7, 1999), [available online at http:// www.sierra-leone.org/lomeaccord.htm] (last visited October 22, 2003). See generally on the Commission, Laura Hall and Nahal Kazemi, “Prospects for Justice and Reconciliation in Sierra Leone,” Harvard International Law Journal 44 (No.1), 287–300 (Winter 2003). 73 See The Truth and Reconciliation Act 2000, ¶ 6 (February 2000) [available online at http://www.sierra-leone.org/trcact2000.html] (last visited October 22, 2003). 74 See ibid. 75 See Celina Schocken, “The Special Court For Sierra Leone: Overview and Recommendations,” Berkeley Journal of International Law 20, 436, 452–453 (2002). 76 See ibid., at p. 456. 77 Kim Lanegran, “The First Two Years of the Special Court for Sierra Leone,” Paper presented at International Studies Association Annual Conference (Montreal, March 2004). 78 See Ratification Act 2002, part III, art. 11(2). 79 Daniel Macaluso, “Absolute and Free Pardon: The Effect of the Amnesty Provision in the Lome Peace Agreement on the Jurisdiction of the Special Court for Sierra Leone,” Brooklyn Journal of International Law 27, 361 (2001). 80 Suzannah Linton, “Cambodia, East Timor, and Sierra Leone: Experiments in International Justice,” Criminal Law Forum, 12, 185–246, 233–234 (2001). 81 See ibid., part III, art. 13. 82 See ibid., part IV, art. 15. 83 See ibid., part IV, art. 19. 84 Robert Cryer, “A ‘Special Court’ for Sierra Leone?” International and Comparative Law Quarterly 50, 435–446 (April 2001). 85 Fritz and Smith, “Current Apathy for Coming Anarchy,” p. 417. 86 Schocken, “The Special Court,” pp. 453–454. 87 Ibid. 88 Nicole Fritz and Alison Smith, “Current Apathy for Coming Anarchy: Building the Special Court for Sierra Leone,” Fordham International Law Journal 25, 391–430, 411–412 (2001). 89 Tejan-Cole, “The Special Court,” pp. 115–116. 90 See generally Michael A. Corriero, “Involvement and Protection of Children in Truth and Justice-Seeking Processes: The Special Court for Sierra Leone,” The New York Law School Journal of Human Rights 18, 337–360 (2002). 91 Corriero, “The Involvement and Protection of Children,” New York Law School Journal of Human Rights, Spring 2003, pp. 337–338. 92 “Sierra Leone: Special Court will not Indict Children-Prosecutor,” November 4, 2002 [available online at www.irinnews.org]. 93 See generally Macaluso, “Absolute and Free Pardon.” 94 For criticism of these arguments, see Macaluso, “Absolute and Free Pardon.” 95 See Decision on Challenge to Jurisdiction: Lome Accord Amnesty, Appeals Chamber of the Special Court of Sierra Leone, Case nos. SCSL-2004-15-AR72(E) and SCSL-200416-AR72(E) (March 13, 2004). 96 Fritz and Smith, “Current Apathy for Coming Anarchy,” Fordham International Law Journal, 2001, p. 391. 97 International Center for Transitional Justice, The ‘Legacy’ of the Special Court for Sierra Leone (Draft, September 2003, on file with current author). 98 See ibid., part III, art. 11(2). 99 See Jess Bravin, “Peace vs. Justice: A Prosecutor Vows No Deals for Thugs in Sierra Leone War,” The Wall Street Journal ( July 28, 2003), p. A1. 100 See Schocken, “The Special Court for Sierra Leone,” p. 437. 101 See Douglas Farah, “Sierra Leone Court May Offer Model for War Crimes Cases; Hybrid Tribunal, with Limited Lifespan, Focuses on Higher-Ups,” The Washington Post (April 15, 2003), p. A21.

11 Victims’ responses to truth commissions Evidence from South Africa David Backer

Introduction A central question in the aftermath of repressive regimes, civil war, genocide, and political upheaval is how best to address issues of accountability surrounding past violence and human rights abuses. In practice, countries employ a wide variety of approaches to such questions of transitional justice.1 Of note, truth commissions – investigative bodies tasked with examining these legacies – have emerged as a popular option on the policy menu. Frequently advocated as a sensible alternative to extensive prosecutions or sweeping amnesties,2 more than thirty countries that have experienced democratic transitions have instituted truth commissions.3 The current popularity of this alternative is such that every regime change, peace agreement, or impending political transformation – including most recently in Afghanistan, Iraq, Kenya, and Liberia – prompts calls for another commission to be established. Despite the strong support of this approach, debates persist about its desirability as a solution to the hard dilemma of transitional accountability.4 The main reason for the controversy is that these bodies are inherently a compromise. Truth commissions that conscientiously look into and expose past violations afford a measure of justice for the victims, while acknowledging the practical difficulties of adopting a more aggressive strategy in inherently unstable transitional environments. Yet, these commissions are commonly paired with amnesties, which have the effect of shielding perpetrators from criminal prosecution and civil liability.5 The resulting lack of accountability is objectionable on both moral and legal grounds. A latent question is whether the victims of past abuses are willing to accept this trade-off – is truth an adequate substitute for punishment?6 Surprisingly, scholars have conducted little primary empirical research on this topic. Instead, discussions of victims’ perspective on truth commissions typically rely on superficial evidence or broad assumptions and have little reflection on the victims’ actual experiences with the truth commission process. As a result, discussions have not rigorously evaluated a host of relatively basic questions: What do the victims think about this approach? Do they seek to engage the process? What expectations do they have? Are their interactions positive or negative? Does this experience affect their broader political outlooks? In these settings, one important

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concern is whether victims might view a truth commission as a further injustice in the absence of accountability for the perpetrators, and thereby lose faith in the new political dispensation. But such negative reactions are not inevitable. Many democratic practices (elections, trials) share the presumption that individuals will accept outcomes that are not to their liking so long as they have a role in the process by which these results are determined. In principle, therefore, a truth commission that is appropriately designed and executed – vesting victims with opportunities for ongoing, substantial involvement in its activities – may mitigate their reservations about the accompanying amnesties. The original truth commissions employed a top-down model of investigation, in which victims were essentially subjects, rather than directly engaged primary actors. The Truth and Reconciliation Commission of South Africa (TRC) departed from the conventional truth commission. This body, which was established in 1995 and has become the model for many subsequent commissions, implemented several innovations to allow victims immediate, central, and public input in the process. While literature on the TRC discuses the involvement of victims, no one has studied the victims, their responses to these novel features, and the process in general with sufficient depth or rigor to yield definitive conclusions about their feelings. Instead, the available evidence is essentially indeterminate: anecdotal accounts offer points of view ranging from extreme disapproval to deep appreciation. My research seeks to resolve this ambiguity by examining specifically victims’ attitudes towards the TRC. In so doing, I assess whether the participatory mechanisms have a favorable impact on the victims’ approval of truth commissions. The section “Background” outlines the theoretical and empirical background for my inquiry by revisiting the literature on transitional justice as well as integrating insights from studies of trust, institutional legitimacy, and democratic transitions. The section “The South African case study” details the key aspects of the TRC process, focusing on the mechanisms that facilitated public involvement. The section “Research Design” describes the research design and data collection. The next section presents the results. In particular, I found that participation does have positive effects on victims’ responses. The effects are inconsistent: not only do individuals’ distinctive experiences modulate the effects, the effects differ across local institutional settings in ways that reflect both structural features and policy choices. The final section discusses the implications of these findings on the design of truth commissions and other elements of new democracies.

Background During the last three decades, truth commissions have assumed center stage in deliberations about the merits of different approaches to transitional justice among countries in the “third wave” of democratization.7 The basic premise of truth commissions is to strike a balance between political pragmatism and morallegal principles.8 They make concessions in the interest of achieving a settlement that will enable a society to avoid being caught in a cycle of retribution.9 At the

Victims’ responses to truth commissions 167 same time, public acknowledgement of past abuses is intended to communicate a commitment to deter such atrocities in the future.10 The motives are not only instrumental: many view establishing the truth about past wrongdoing as ethically responsible since it recognizes victims’ inherent dignity.11 Proponents also maintain that by adhering to principles of transparency, impartiality, and compassion, truth commissions actually help establish institutional legitimacy, promote equality and inclusiveness, and foster social reconciliation and national unity.12 Others caution that truth commissions could trigger or exacerbate discontent. In particular, those who experienced mistreatment may have (further) cause to feel disillusioned about, and even alienated from, political society, despite its nominal evolution. Immunity from prosecution consistently accompanies these bodies,13 whether to moderate the apparent risk of conservative backlash and/or to encourage the disclosure of relevant information by perpetrators.14 With amnesty, perpetrators go unpunished, thereby contravening fundamental norms of jurisprudence and political philosophy, if not the obligations that international covenants impose.15 Not only is such impunity contrary to presumptions of the rule of law, it also challenges the basic notions of fairness and equity.16 A critical concern is whether these circumstances then dispose victims toward antisystem sentiments and activities, including the possibility that they will take matters in their own hands and engage in violence, especially in retribution against perpetrators. Some victims may already have passed through a similar stage as a result of past suffering, and revert to that option when their ostensible ally – the new government they fought hard to secure – seemingly fails to protect their interests. Thus, the ability of a truth commission to instill faith in the nascent democratic system depends, by a significant measure, upon counteracting inevitable perceptions of injustice and disenchantment among victims. Whether this is feasible remains uncertain, but not because of the predominance of normative argument, legal interpretation, and historical description in the literature on truth commissions. Results at the individual level are often loosely theorized without concrete findings that these propositions hold in practice. Even the classic works on democratic transitions, which might have contributed the necessary analytical rigor, typically disregard or marginalize issues of transitional justice. The few bona fide empirical studies of this topic are geared toward evaluating macrolevel outcomes such as regime stability,17 political unrest,18 and intergroup tolerance and reconciliation,19 or else engage in various forms of institutional appraisal.20 While illuminating and broadly relevant to my inquiry, most of these contributions are symptomatic of a tendency to neglect microlevel effects, including questions related to how individual victims engage in and reflect upon the process. The studies by Gibson and Gouws are somewhat of an exception, to the extent that they rely on data from a survey of more than 3,700 South Africans.21 But they intended for their national sample to be representative of the general population, rather than specifically designed to include people based upon their exposure to apartheid-era abuses, let alone their participation in the TRC process. Given that only a small fraction of South Africans share the last characteristic

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(approximately 1 in 2,000), their survey is not suited to examine participants’ attitudes toward the TRC.22 Likewise, the many other detailed examinations of the TRC process, which ranks as the most popular case in transitional justice literature, generally fail to evaluate systematically the responses of victims.23 I would argue that what victims think about the truth commission approach is intrinsically important on several counts. To begin with, the serious violations that they suffered are the reason why accountability issues arose in the first place. Moreover, exposing the truth about these violations is one of the manifest purposes of the investigations. In a fundamental respect, therefore, a truth commission is geared to address the plight of victims. This is not to say that the process must be strictly about them or only serve their needs; the requirements for establishing a peaceful political system that benefits the whole of society are seemingly a valid consideration to take into account. Nevertheless, a truth commission can never afford to be indifferent to victims if it wants the public to perceive it as more than a sham to protect the interests of perpetrators of past abuses. The fact that this approach effectively demands that victims compromise their claims to justice further ensures their centrality in the process. While perpetrators, and perhaps even society, must also accept a less preferred path in the bargain, the concession that victims make is arguably the most substantial of all. Whether or not they are satisfied is more than an academic question; it has profound ramifications for basic issues of morality, legitimacy, institutional design, policy-making, and other aspects of political practice. My aim, in turn, is to examine whether participatory mechanisms help counteract the impact of victims’ reservations about the amnesties that ordinarily accompany truth commissions. Why might this be the case? Comparative research has demonstrated that knowledge and exposure are key determinants of an individual’s perception of institutional legitimacy.24 Other studies, especially those of legal and electoral institutions,25 show that opportunities for direct involvement, as well as participants’ belief in the integrity and neutrality of processes, buoy diffused support.26 Likewise, social psychological models of dispute resolution indicate that peoples’ sense of procedural fairness influences their evaluations.27 This faith in the process, according to related studies, hinges on having a voice in the deliberations more so than on exercising authority over decision-making or dictating outcomes.28 Furthermore, attitudes about justice are known to influence political trust – like a basic sense of belief in, and commitment to, the political system.29 Strong perceptions of injustice, in turn, can provoke a sense of alienation.30 Literature on democratization and democratic consolidation echo these factors by consistently citing transparency, responsiveness, opportunities for engagement, and equal access as the best means to cultivate a sense of empowerment and efficacy among citizens and foster their long-term attachment to democratic institutions.31 Such features of a political system are thought to limit the prospect of attitudes and behaviors that are antagonistic to democracy and tend to provoke serious disruptions in the ongoing operations of government and even full-scale violence.32

Victims’ responses to truth commissions 169 Consequently, victims’ evaluations of the degree to which a truth commission is “just” should be a function of (1) their awareness of the process, (2) their perceived opportunities to offer input, (3) the extent to which they believe that the process was conducted in a principled and impartial manner, (4) the consideration their individual interests were afforded, and (5) the efficiency and responsiveness of the institution in addressing their needs. Whether or not an individual participates directly in the process should have an immediate bearing on each of these factors by increasing engagement, creating a forum for expression, providing firsthand exposure to people and practices, initiating interactions, and cultivating expectations. Greater levels of participation, in as much as they enhance one’s knowledge or voice are generally beneficial. This relationship is likely subject to diminishing marginal returns; past a certain point, additional involvement may not have a marked impact.33 A further caveat, as I alluded to earlier, is that the process can expose participants to circumstances that they find distasteful. For example, they might encounter treatment that they consider unfair. As a result, their level of support for the process presumably declines, with the potential consequence of their confidence in political institutions more broadly. A setting that is already highly emotional, if not traumatic, and entails revealing deeply personal experiences could magnify these reactions. Thus, mere participation in a truth commission is not necessarily sufficient to foster an enhanced sense of justice among victims. Instead, victims own individual experiences ultimately modulate their perceptions. To emphasize, this chapter represents only a first cut at evaluating these hypotheses. For now, I concentrate on the nature of victims’ responses to the process itself and the influence of participatory experiences upon their judgments. Elsewhere, I look at how perceptions of justice are related to participation, as well as how these reactions are linked to attitudes toward the political system and democratic norms and institutions.34

The South African case study Of the truth commissions established to date, the TRC affords the most compelling test of the propositions that I set forth in the previous section. Its particular significance lies in the design innovations that were implemented to promote a more inclusive process and thereby to forestall accusations of injustice. One design innovation was the chance for individuals that had suffered “gross” human rights violations to submit statements to the TRC. This opportunity was available both to those who personally experienced such abuses (direct victims) and to their immediate family members (indirect victims). Another was the public hearings that the TRC held in nearly 80 local communities, at which a subset of the nearly 22,000 individuals who submitted a victim’s statement were invited to testify about their experiences. The third was a conditional amnesty, which required applicants to apply for official clemency with respect to specific gross violations of human rights, to provide the full truth regarding these incidents, and to demonstrate a political motive to warrant their actions. The final stage consisted of open

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hearings, where TRC authorities examined, and the victims or their families confronted, if they so desired, applicants. This transparent approach contrasts with most truth commissions that shield perpetrators. Both the victim and amnesty hearings had extensive media coverage, including live broadcasts on radio and TV, daily summaries in the major newspapers, and publication of verbatim transcripts on the TRC’s official website. The implicit assumption is that awareness of, and engagement in, these mechanisms would mitigate the reflex response expected among at least a segment of the population, namely that the TRC process and amnesty for perpetrators were fundamentally unfair. Notwithstanding these innovations, the TRC, like its predecessors in other countries, has been embroiled in controversy. Soon after the South African Parliament passed the Promotion of National Unity and Reconciliation Act, the families of several democracy activists that were murdered during the apartheid era, including Steve Biko and Griffiths Mxenge, challenged the amnesty in the newly created Constitutional Court. In a decision that Chief Justice Ismail Mohammed wrote, the Court ultimately upheld the constitutionality of the law, citing the additional provisions for reparations as an adequate substitute for the right of individuals to seek action in criminal and civil courts.35 Although the TRC later denied some prominent amnesty applications – most notably, for the Biko and Chris Hani murders – other successful petitions raised the ire of victims’ families and the public.36 Opinion surveys, meanwhile, indicated a sharp split in the attitudes of whites and blacks toward this process37; other studies corroborate this disparity.38 Responding to one set of poll results, TRC Chairman Desmond Tutu asserted that whereas the majority of blacks have embraced reconciliation in spite of the TRC’s revelations, whites are far less accommodating.39 In fact, ex-State President P.W. Botha defied a subpoena and balked at cooperating with the TRC. Meanwhile, supporters of the African National Congress (ANC) were surprised by the attribution of responsibility for abuses to both the government and the ANC-led opposition and filed suit with the Constitutional Court to block the release of the final report.40 Even if some amount of discontent and division is to be expected, these responses raise the issue of whether the contentious aspects of the TRC process have undermined confidence in the legitimacy of both the TRC and South Africa’s new political dispensation. Yet, the public controversy and other anecdotal evidence may not be fully indicative of sentiments present among the community of victims. More extensive empirical research is necessary to establish whether they are critical, disappointed, or disenchanted.

Research design My analysis is based on several sets of primary data collected as part of two separate research projects in South Africa’s two largest cities, Cape Town and Johannesburg. The basic population remained the same across all of the data-collection efforts; the sampling approach varied as a reflection of both the substantive aims and various practical constraints.

Victims’ responses to truth commissions 171 Study population The subjects of interest are any individuals that nominally qualify as direct or indirect victims of politically motivated gross violations of human rights, the criteria that the Human Rights Violations (HRV) Committee of the TRC established. The former category is limited to those who personally experienced extreme abuses, like torture while in police detention, attempted murder by self-defense units and other vigilante groups, and arson fires targeting those affiliated with opposition groups. The latter category is comprised of close relations – spouses, parents, children, and siblings – of the victims of these and other violations such as political murders and disappearances. The nature of political violence in South Africa during the apartheid era tends to limit the population of victims in at least three key respects. First, apartheid classified the majority of the population as “blacks” (Africans and to a lesser extent “Coloureds” and Asians). Second, because the majority of the direct victims under apartheid were male, and literally tens of thousands were killed or disappeared during the political violence of the 1980s and 1990s, a greater share of women – whether mothers, spouses, daughters, sisters – are likely to be among the indirect victims. The same likely holds true for the population of direct victims who are still alive, given that thousands of males were killed. Third, since many of the direct victims were young men, the indirect victims are more likely to be older women; again, this applies to the overall population of victims that were available to be studied. Methodology The analysis integrates qualitative material from focus groups to explain and illustrate results derived from quantitative survey data. The focus group transcripts and part of the survey data came from a study initiated by Dr Jeffrey Sonis and conducted around the Johannesburg area in collaboration with the Centre for the Study of Violence and Reconciliation (CSVR).41 I began working on this project while based at CSVR in 2000–01 and have remained involved. An additional set of survey data is drawn from a project that I carried out in the Cape Town area with the aid of a team of fieldworkers and input from my colleagues at CSVR. Both surveys were designed as retrospective cohort studies, in which all of the respondents share the characteristic of having suffered a gross violation of human rights and the “cases” are distinguished from the “controls” by the “exposures” of interest, namely the experience of having submitted a statement to and/or testified before the public hearings of the HRV Committee. Focus groups During August and September 2000, CSVR conducted a series of focus groups in Johannesburg, Soweto, and the East Rand with the assistance of the Community Agency for Social Enquiry. The aim was to elicit information on how

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different types of victims conceptualise justice and forgiveness, which factors influence these attitudes, and whether the TRC induced any changes in their views. These details, in turn, informed the development of the survey questionnaire used in the subsequent phase of the project. Since generalization was not the goal, randomization was unnecessary and the project employed a purposeful sampling approach. In particular, the project organized two focus groups with four cohorts: (1) victims of torture in detention, (2) direct victims of other political violence, (3) parents of victims of political murders, and (4) parents of victims of disappearances. In total, there were approximately 70 participants. Most were recruited from the Khulumani Support Group, the largest South African organization comprised of victims of apartheid-era violations, with branches around the country and a membership in excess of 10,000. Trained multilingual facilitators lead the discussions. All sessions were audio-taped and each tape was then transcribed and translated into English. Johannesburg survey Originally, the intent was to acquire and sample randomly from a master list in the Johannesburg area of individuals that had submitted statements to, and been declared victims by, the TRC. For a variety of reasons, it proved impossible to obtain this information. Instead, CSVR employed a two-part sampling process. First, CSVR approached individuals, randomly drawn from a database of Khulumani members in the area, to participate in the survey. The aim was to recruit 50 respondents; 51 ultimately participated. Second, CSVR compiled a convenience sample via a series of advertisements published in newspapers and broadcasted on radio stations in the communities of interest. This process yielded an additional 125 respondents. All respondents were interviewed face-to-face in their homes. Trained multilingual fieldworkers conducted the interviews in the respondent’s preferred language using questionnaires translated from English into Sotho and Zulu, the two most common languages in the area. Cape Town survey For the Cape Town survey, I drew a subset of potential respondents from a Khulumani database – here, the one compiled for the Western Cape branch. I employed a multistage area sampling design, stratified into lists of those that submitted statements and those that did not for each of the seven distinct communities: Guguletu, Khayelitsha, Mannenberg, Mitchell’s Plain, Nyanga, Phillipi, and Cape Flats (mainly Bonteheuwel, Delft, and Langa). I also implemented a matched (within clusters) sampling design. After interviewing a Khulumani member, fieldworkers were then expected to approach one or more (if necessary) neighboring dwellings, according to a specific algorithm, and seek out another eligible victim who did not belong to the organization.42 This approach ensured adequate representation of nonmembers, while matching them on characteristics of the community “clusters.” Suitable candidates were not always available, but the fieldworkers ultimately recruited 105 nonmembers, constituting 46 percent

Victims’ responses to truth commissions 173 of the overall sample. Finally, I adopted a convenience sampling approach to boost the representation of victims that had testified. I provided a fieldworker with a comprehensive list of the 118 individuals who had appeared before the public hearings that the HRV Committee conducted in the Cape Town area. Using phone books and local resources such as post offices, the fieldworker managed to locate and recruit 16 respondents. Again, a trained multilingual fieldworker interviewed the respondents face-to-face in their home using their preferred language. The questionnaire was translated from English into Xhosa, the most common language spoken by the African population in the area. A sizeable number of local residents speak Afrikaans; nonetheless, virtually this entire population is fluent in English. Profile of survey respondent The individuals recruited to participate in the two surveys were reasonably diverse (Tables 11.1–11.2). The Johannesburg sample was split along gender lines, while the Cape Town sample was almost 60 percent female. Most of the respondents were 30 years or older; the average age was just over 50. Roughly one fourth were single and had never been married; a similar number were widowed. The respondents were predominantly African (92 percent); the Cape Town sample also included a sizeable number of Coloureds as well as a smattering of Asians and whites. Collectively, they spoke nine of South Africa’s eleven official languages and had more than twenty different religious affiliations. More than 47 percent had at least some high school education – a few possess college or university degrees – but 39 percent did not advance beyond Standard 5. Less than a quarter of the Cape Town sample lacked employment, compared to about half of the Johannesburg sample. Over 43 percent of respondents belonged to Khulumani, including 54 percent of those from the Cape Town area. The Johannesburg sample was drawn principally from Soweto and, to a lesser extent, the East Rand (Katlehong, Thokoza, and Vosloorus). The Cape Town respondents were more evenly distributed across a dozen communities, most notably Phillipi, Nyanga, Khayelitsha, and Guguletu. All of these locales experienced significant political violence under apartheid. To reiterate, all respondents were prescreened to verify their eligibility for the study, that is, they were eligible to submit a statement to the TRC as victims of gross human rights violations. The vast majority experienced physical assaults, torture, or other immediate threats to their lives. In addition, about half of the overall sample had a family member that was murdered or disappeared; a comparable number witnessed someone being killed. Destruction of property was especially common, especially among the Cape Town respondents – many were victims of the arson fires that razed large sections of the townships in the mid-1980s (Table 11.3). The respondents most often attributed the violations to state actors, especially to the South African Police (SAP) and to a lesser extent the South African Defence Force (SADF) (Table 11.4). Among the nonstate actors, the primary offenders were the Inkatha Freedom Party (IFP) and the witdoeke.43 Meanwhile, the respondents blamed the so-called liberation organizations (African National Congress (ANC), Azanian People’s Organisation (AZAPO), and Pan African Congress (PAC))

Table 11.1 Characteristics of Johannesburg survey respondents (N  176) Characteristic

N (%)

Gender Male Female

90 (51%) 86 (49%)

Age 15–19 20–29 30–39 40–49 50–59 60–69 70–79

2 (1%) 7 (4%) 20 (11%) 27 (15%) 47 (27%) 53 (30%) 20 (11%)

Marital status Single Steady relationship Married Separated Divorced Widowed

35 (20%) 4 (2%) 84 (48%) 6 (3%) 8 (5%) 39 (22%)

Education University/professional degree College/technikon degree Some college/technikon High school Standard 8 Standard 5 Less than Standard 2 None

2 (1%) 9 (5%) 60 (34%) 54 (31%) 37 (21%) 7 (4%) 3 (2%)

Employment status Full-time Part-time Self-employed Student Old age pensioner Disabled Unemployed Other

23 (13%) 23 (13%) 10 (6%) 1 (1%) 22 (13%) 7 (4%) 89 (51%) 1 (1%)

Racial group Black/African

4 (2%)

176 (100%)

Characteristic

N (%)

Primary language Ndebele Pedi Sotho Tsongo Tswana Xhosa Zulu

1 (1%) 10 (6%) 39 (22%) 5 (3%) 15 (9%) 19 (11%) 85 (48%)

Religion African Christian Church Anglican Charismatic Dutch Reformed Church Lutheran Methodist Muslim Roman Catholic Traditional African Other

31 (18%) 17 (10%) 20 (11%) 7 (4%) 4 (2%) 35 (20%) 2 (1%) 42 (24%) 16 (9%) 2 (1%)

City/town/township of residence Johannesburg Katlehong Krugersdorp Soweto Tembisa Thokoza Vosloorus

3 (2%) 15 (9%) 5 (3%) 126 (72%) 2 (1%) 11 (6%) 14 (8%)

Monthly household income R250 R250–499 R500–999 R1,000–1,999 R2,000–3,999 R3,999–7,499 R7,500–12,499 R12,500

20 (11%) 36 (20%) 42 (24%) 46 (26%) 21 (12%) 2 (1%) 5 (3%) 4 (2%)

Khulumani member Yes No

51 (29%) 125 (71%)

Table 11.2 Characteristics of Cape Town survey respondents (N  228) Characteristic

N (%)

Gender Male Female

94 (41%) 134 (59%)

Age 20–29 30–39 40–49 50–59 60–69 70–79 80 and above

7 (3%) 28 (12%) 49 (21%) 45 (20%) 48 (21%) 19 (8%) 1 (0%)

Marital Status Never married/single Living as married Married Separated Divorced Widowed

47 (21%) 20 (9%) 76 (33%) 16 (7%) 5 (2%) 61 (27%)

Education Masters degree Bachelors or Honours degree Matric/Std 10/Grade 12  diploma Standard 1 up to 9/ Grade 3 up to 11 plus diploma Standard 6 up to 10/ Grade 8 up to 12 Standard 1 up to 5/ Grade 3 up to 7 Sub A or B/Grade 1 or 2 No formal school Employment status Full-time Part-time Self-employed Student Old age pensioner Disabled Unemployed Informal sector Housewife

1 (0%) 3 (1%) 15 (7%) 12 (5%) 84 (37%) 75 (33%) 15 (7%) 20 (9%) 35 (15%) 13 (6%) 9 (4%) 1 (0%) 69 (30%) 9 (4%) 53 (23%) 9 (4%) 25 (11%)

Characteristic

N (%)

Racial group Black/African Coloured White Indian/Asian

196 (86%) 26 (11%) 2 (1%) 1 (0%)

Primary language Afrikaans English Sotho Xhosa Zulu

21 (9%) 6 (3%) 1 (0%) 193 (85%) 4 (2%)

Religion African Independent Church Anglican Baptist Charismatic Church of Nazareth Dutch Reformed Church Lutheran Jehovah’s Witness/7th Day Methodist Mission Churches Muslim Presbyterian Roman Catholic Zion Christian Church Traditional African United Congregational Other

37 (16%)

City/town/township of residence Bonteheuwel Delft Guguletu Khayelitsha Langa Mannenberg Mitchell’s Plain Nyanga Phillipi Other

17 (7%) 12 (5%) 29 (13%) 36 (16%) 5 (2%) 15 (7%) 9 (4%) 41 (18%) 54 (24%) 10 (4%)

Khulumani member Yes No

3 (1%) 17 (7%) 6 (3%) 15 (7%) 8 (4%) 7 (3%) 4 (2%) 3 (1%) 54 (24%) 7 (3%) 6 (3%) 17 (7%) 14 (6%) 3 (1%)

123 (54%) 105 (46%)

Table 11.3 Survey respondents’ exposure to political violence Type Detained, arrested, or imprisoned Self Family member Physical or psychological torture while in detention Self Family member Badly injured or harmed (but did not die)a Self Family member Family member was killed Kidnapped Self Family member Family member disappeared Prevented from burying a family member Life threatened b Self Family member Fled home because life was threatened Self Family member Rape or sexual harassment or humiliation Self Family member Forced to participate in injuring or killing someone Self Family member Framed as an informer or forced to become an informer Self Family member Home or property was damaged or destroyed c Self Family member Witnessed someone being killedd Self Family member Felt life under constant threat because of political violence e Self Family member

Johannesburg (N  176)

Cape Town (N  228)

Total (N  404)

66 (38%) 59 (34%)

115 (50%) 58 (25%)

181 (45%) 117 (29%)

64 (36%) 41 (23%)

83 (36%) 55 (24%)

139 (34%) 92 (23%)

120 (68%) 50 (28%) 80 (45%)

73 (32%) 46 (20%) 72 (32%)

193 (48%) 96 (24%) 152 (38%)

9 (5%) 8 (5%) 22 (13%) 17 (10%)

12 (5%) 15 (7%) 31 (14%) 16 (7%)

21 (5%) 23 (6%) 53 (13%) 33 (8%)

115 (65%) 68 (39%)

152 (67%) 63 (28%)

267 (66%) 131 (32%)

85 (48%) 68 (39%)

139 (61%) 60 (26%)

224 (55%) 128 (32%)

4 (2%) 11 (6%)

8 (4%) 11 (5%)

12 (3%) 22 (5%)

17 (10%) 11 (6%)

1 (0%) 6 (3%)

18 (4%) 17 (4%)

19 (11%) 15 (9%)

10 (4%) 12 (5%)

29 (7%) 27 (7%)

64 (36%) —

148 (65%) 45 (20%)

212 (52%) —

117 (66%) —

93 (41%) 39 (17%)

210 (52%) —

155 (88%) —

168 (74%) 68 (30%)

323 (80%) —

Notes a “Beaten, stabbed or shot” in the Johannesburg survey. b “Threatened with violence” in the Cape Town survey. c Question not asked about family members in the Johannesburg survey. d Ibid. e Ibid.

Victims’ responses to truth commissions 177 Table 11.4 Perpetrators identified by survey respondents Perpetrator

State affiliation

Johannesburg (N  176)

Cape Town (N  228)

Total (N  404)

South African Police (SAP) South African Defence Force (SADF) Inkatha Freedom Party (IFP) Witdoeke National Party SDUs Gang Other African National Congress (ANC) Homeland police or army United Democratic Front (UDF)/ comrades Pan-Africanist Congress (PAC) Azanian Peoples’ Organization (AZAPO)

Yes Yes No No Yes No No — No Yes No

118 (67%) 39 (22%) 80 (45%) — — — 2 (1%) 4 (2%) 6 (3%) 1 (1%) 7 (4%)

214 (94%) 133 (58%) 20 (9%) 87 (38%) 41 (18%) 26 (11%) 15 (7%) 11 (5%) 5 (2%) 9 (4%) 2 (1%)

332 (82%) 172 (43%) 100 (25%) 87 (22%) 41 (10%) 26 (6%) 17 (4%) 15 (4%) 11 (3%) 10 (2%) 9 (2%)

No No

1 (1%) 1 (1%)

1 (0%) —

2 (0%) 1 (0%)

Table 11.5 TRC status of survey respondents Category

Johannesburg (N  176)

Cape Town (N  228)

Total (N  404)

Testified but did not submit statementa Submitted statement Testified Did not testify Did not submit statement or testify Perpetrator applied for amnesty Perpetrator did not apply for amnesty

— 86 (49%) 29 (16%) 57 (32%) 90 (51%) 10 (6%) 166 (94%)

3 (1%) 80 (35%) 35 (15%) 45 (20%) 145 (64%) 20 (9%) 208 (91%)

3 (1%) 166 (41%) 64 (16%) 102 (25%) 235 (58%) 30 (7%) 374 (93%)

Note a While most of those who testified in public hearings had previously submitted a statement to the TRC, the latter was not a precondition for the former. The TRC requested that certain high-profile victims testify because of the significance of their cases, even though these individuals had made the decision not to formally declare their victim status. A good example is Shirley Gunn, the head of Khulumani – Western Cape, who the Minister of Law and Order Adrian Vlok falsely accused of committing the 1988 Khotso House bombing, and was arrested and tortured while in detention.

for relatively few violations. Johannesburg and Cape Town exhibited dissimilar political environments and patterns of violence: state actors had a role in almost all of the violations suffered by the Cape Town respondents, whereas respondents identified nonstate actors in about 30 percent of the Johannesburg-area cases.44 In both areas, state actors cultivated relationships with nonstate actors. A distinguishing factor was the nature and extent of the partnership. The witdoeke usually worked with the SAP and/or the SADF and relied heavily on their assistance. By contrast, many independent acts of political violence implicated individuals affiliated with both the IFP and ANC. The apartheid government certainly stoked

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this antagonism, but was directly involved in only a portion of these incidents (and more often acted alone). Just over 40 percent of the respondents submitted victim statements to the TRC (Table 11.5); in the Johannesburg sample, the proportion was almost 50 percent. While estimates of the share of eligible victims that took this opportunity were unavailable, this cohort is intentionally over-represented in both samples.45 In addition, 17 percent of respondents – including 40 percent of the respondents who submitted statements – testified before one of the local public hearings that the HRV Committee organized. This cohort was likewise overrepresented: the actual figure was closer to one in ten.46 The larger sample sizes for both cohorts were necessary in order for the analytical estimates to have sufficient power. Relatively few respondents had a perpetrator apply for amnesty in regards to the violations I described previously. The small percentage was both consistent with empirical circumstances and adequate for the purposes of this research.47 The focus here was on those aspects of participation that the victims could effectively initiate, whether directly (submitting a statement) or indirectly (later being asked to testify). By contrast, an application from a perpetrator was required to trigger the amnesty process, including a potential hearing at which their victim(s) could choose to appear. Whether or not what transpired might plausibly influence the attitudes of victims, this factor is a control variable, rather than the main effect that these studies seek to evaluate.

Results The previous qualitative analysis suggested that victims regularly drew distinctions between their general attitudes toward the TRC and their views about their experiences with the process. Both surveys contained large sets of questions designed to capture the latter personal responses. The Cape Town survey – following the example of the questionnaire employed by Gibson and Gouws – also examined the former responses. General responses Even the victims that questioned how well the TRC met the needs of victims nonetheless conceded that it served a necessary purpose: 87 percent of the Cape Town respondents either agreed or strongly agreed that the TRC was essential to avoid civil war in South Africa during the transition from white rule to majority rule. Less than 1 percent of respondents strongly disagreed with this proposition; a further 4 percent disagreed. Among victims, therefore, an overwhelming consensus exists in support of the necessity of this compromise. Perhaps more surprising, the level of acceptance of amnesty was also reasonably high. Almost 52 percent of the respondents either strongly approved or approved somewhat of giving amnesty to those that admitted to committing atrocities. This response may again reflect a sense of the strategic value of the amnesty policy.48 On the other hand, victims generally believed that amnesty was unfair to the victims: 37 percent of respondents said that it was not very fair and 46 percent said that it was not fair at all. Nor were victims convinced that public confession by amnesty

Victims’ responses to truth commissions 179 applicants represented a strong form of accountability: just 11 percent of respondents felt that those granted amnesty were being punished harshly, whereas 72 percent felt that confession equated to little or no punishment. Over 83 percent of respondents believed that those granted amnesty should be forced to pay some money to those whom they victimized. In addition, nearly two thirds of respondents believed that amnesty recipients should be prohibited from government employment. Victims were more divided about the prospect of forcing amnesty recipients to apologize – just over half supported this idea. One reason may be that compelling an apology tends to diminish the sincerity of the gesture and thus diminish its value. Of note, despite some of the extreme rhetoric of the more radical members in the liberation movement (e.g. the slogan “one settler, one bullet” that was common in the Cape Flats townships), relatively little support exists for expelling amnesty recipients from South Africa – only 14 percent of respondents backed this option. On the matter of compensation, victims only barely favored financial contributions (98 percent) over special priority for jobs, housing, and education (91 percent), but by a wider margin over public apologies (83 percent). As I discussed earlier, sizeable support existed for relieving the government of the burden of reparations. In fact, almost 95 percent of respondents believed that individual companies that directly profited from apartheid should be required to assume compensation costs. Also, 78 percent would impose a general responsibility on large businesses. A large percentage of victims supported reparations from the perpetrators themselves, though the fraction (83 percent) was perhaps not as high as one might expect, especially in relation to the evident interest in business reparations. Respondents viewed the various individuals and organizations that benefited from apartheid (like Afrikaans churches, whites, the wealthy, and farmers) as complicit in its maintenance and they rated high on the list, though each had a sizeable number of detractors. The option victims were clearly unwilling to consider was a new universal tax, which more than 80 percent of respondents opposed. On questions related to land reform, victims exhibited a greater division of opinion, though their attitudes were strikingly consistent. Over 68 percent of respondents subscribed to the notion that white settlers unfairly took most land in South Africa and therefore had no right to the land. About the same fraction rejected the argument that current owners should be entitled to keep their land because it is impossible to determine ownership rights. Just 35 percent of respondents supported amnesty for the current owners of land, while 40 percent would not return land to blacks regardless of the consequences for the current owners and political stability. Despite certain reservations, victims were nonetheless complementary of the TRC. Only 26 percent of the respondents either somewhat disapproved or strongly disapproved of its activities. Almost 91 percent believed that the TRC did a pretty good or excellent job of providing a true and unbiased account of South Africa’s history, while nearly 86 percent said the same about the TRC’s efforts in regards to letting the families of people know what happened to their loved ones. In addition, 85 percent had favorable impressions about the contributions of the TRC in ensuring that human rights abuses would not happen in the future. Not surprisingly, victims were critical of the TRC in awarding compensation to those who suffered abuses and punishing those that were guilty of atrocities – 61 percent

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and 51 percent, respectively, of respondents indicated that the TRC did a pretty bad or poor job. Personal experiences In both survey samples, less than half of the respondents participated directly in the TRC process. Overall, 17 percent testified at victims’ hearings, 25 percent submitted statements but did not testify, and 2 percent attended their perpetrator’s amnesty hearing. Such experiences were hardly the only source of exposure and awareness. An additional 17 percent of respondents attended either a victim hearing in their community or an amnesty hearing of a perpetrator other than their own. Most respondents also followed the TRC closely through the media (81 percent) and talked about the TRC with friends and family (76 percent), while comparatively few engaged in discussions with political or community organizations (46 percent). A small share of respondents read part of the TRC’s final report (16 percent), though almost half of these individuals did not know if the list of victims included their name or that of a family member. Many factors influenced the decision about whether or not to submit a statement (Table 11.6). Respondents listed truth, acknowledgement, and accountability Table 11.6 Factors in statement submission Reason for giving statement

Sharea (%)

Reason for not giving statement

Shareb (%)

Truth

93

76

Get things off my chest

92

Let people know what happened to me Public recognition of what I/we went through Hold perpetrators accountable Hoping perpetrator would be punished Make sure these things do not happen again Services

91

82

Did not know when or where to make a statement Did not know about the existence of the TRC By the time I decided to submit a statement, it was too late Did not want to relive the traumatic experience Did not think that submitting a statement would accomplish anything Did not have the time

27

78

Fears about personal safety

22

75

21

Reparations

74

Promote reconciliation

66

Did not think the violation met the TRC’s requirements Political leaders in my community opposed the process Another member of family submitted statement on our behalf

91 88

58 48 35 29

8 7

Notes a Share of respondents who answered “very important” or “important” on the Cape Town survey and “strongly agree” or “agree” on the Johannesburg survey. b Share of respondents who answered “yes” on the Cape Town survey and “strongly agree” or “agree” on the Johannesburg survey.

Victims’ responses to truth commissions 181 highest on the list of reasons why they submitted a statement. By comparison, reparations and reconciliation were less important motivations, albeit still of interest to a large majority of respondents. The reasons for not submitting a statement had less to do with desire and more to do with a lack of information. Nevertheless, some respondents made a conscious decision to pass upon this opportunity because they felt that the experience would be too difficult or not worthwhile. Others were effectively coerced into staying away. Among those who did submit statements, 86 percent later received correspondence from the TRC (44 percent had subsequent personal contact with the TRC staff), including 74 percent who were specifically notified about their victim status. Within the latter group, 94 percent were officially declared as victims, of whom 74 percent ultimately received the UIR payment. The actual experience of giving a statement caused a significant amount of distress: 56 percent found the experience very upsetting and 18 percent somewhat upsetting. Moreover, almost half indicated that the extent of anguish had exceeded their expectations; a quarter found it less upsetting than they had envisioned.49 Despite these emotions and other weaknesses in the process, 64 percent believed that they gained something positive from submitting a statement and 78 percent had the opportunity to convey their wishes regarding reparations. Perhaps most significant, almost 70 percent indicated that if they had known in advance what submitting a statement would have been like, they still would have done it. The discussion of the statement-giving process brings me to an observation from the focus group discussions, namely that victims’ evaluations of the TRC were not static. Instead, their evaluations were subject to reassessment: as they experience different aspects of the process, victims revisited and, if warranted, updated their impressions. Each of the survey instruments, in turn, contained a module of 21 questions designed to capture this dynamic progression of attitudes. The intent was not to compile an exhaustive inventory of distinct “moments” when victims’ views might have changed. Instead, this list is comprised of salient stages that are representative of, and encompass the, entire course of the process. To differentiate distinct elements of the process, I grouped the questions into six phases to correspond as best as possible to the actual chronological sequence of events: (1) lead up; (2) giving a statement; (3) statement follow-up; (4) public hearings; (5) amnesty hearings; and (6) aftermath. The resulting organizational scheme is admittedly a rough approximation of reality (Table 11.7). Some might rearrange certain stages. In practice, the phases overlapped or were sequenced differently. My basic aim was to capture variations that related to components of the process, rather than to make strong claims about the precise temporal sequences of experiences, much less changes in attitudes over time. Consequently, I adopted an ordering that was consistent with a standard series of exposures, anchored by endpoints that were seemingly common to all of the respondents. Before discussing the findings, I must reiterate that both surveys were cross-sectional and retrospective in nature. Of course, the ideal design would have been a panel study, but this approach was infeasible when the research was initiated. In order to mitigate the risk of erroneous recall that tends to characterize retrospective research, these

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Table 11.7 Sequence of assessments Phase Lead up

Stage 1 2

Giving a statement

Statement follow-up

3 4 5 6 7 8 9 10 11

Public hearings

12 13 14 15 16

Amnesty hearings

17 18

Aftermath 19 20 21

Survey item When TRC started, I was hopeful it would be able to address my needs as a victim I did not receive enough information about what the TRC was about and how it worked Before giving my statement, I was hopeful the TRC would address my needs The person who took my statement did not make it clear what I should expect from the TRC. The TRC gave my case as much attention as those of other victims I had the opportunity to tell the TRC about my needs as a victim Making statement to the TRC was a good experience. The TRC kept me informed about what was happening with my case after I made a statement The TRC did not do enough to try to find out the facts about my case The TRC helped me find more information about my case The TRC helped me to get in touch with organizations that can help me with my problems The TRC gave me enough reparations The public hearing in my community helped empower victims to talk more openly Commissioners at the hearing showed that they cared about what had happened to me It felt good to tell my story at the public hearing The public hearing in my community helped bring out the truth about the past The Amnesty Committee was sensitive to my needs The TRC informed me enough about the developments of my perpetrator’s amnesty hearing The TRC was a process that cared about victims like me My interaction with the TRC was a good experience The TRC lived up to my expectations about what it could do for me as a victim

questions sought to pinpoint specific occasions and circumstances about which respondents were likely to have more reliable memories. It is also plausible to assume that the TRC process was a seminal event in the lives of most victims, thereby enhancing the reliability of data collection. To aid in visualizing the survey data, I opted for graphical analysis. I plotted the mean responses to the series of 21 questions, each of which employs a five-point Likert scale, corresponding a range from strongly negative evaluations on the low end to strongly positive evaluations on the high end.50 The use of means is both expedient and substantively logical. Obviously, this approach did not convey the extent of individual heterogeneity. My aim was to focus on the impact of participation. As a result, one must do summary measures in order to compare the

Victims’ responses to truth commissions 183 5

Mean evaluation (1 = least favorable; 5 = most favorable)

Lead up

Giving victim’s statement

Statement follow-up

Public hearings

Amnesty Aftermath process

4

3

2

1 1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

Stage Submitted statement

Testified

Neither

Figure 11.1 Victims’ evaluations of the TRC process (pooled sample).

different cohorts. All the same, the graphs still afford a clear sense of the complex and subtle nature of the victims’ responses. They were hardly monolithic, many concerns affected their outlooks, and they were often precisely attuned to particular elements of the process. The mean points, in turn, were linked together to create XY line graphs, utilizing the smoothing option in Microsoft Excel – a Catmull-Rom locally interpolating spline function, which has the noteworthy characteristic that the resulting curve traces directly through the given set of points.51 I presented separate graphical comparisons for the pooled (Figure 11.1), Cape Town (Figure 11.2), and Johannesburg (Figure 11.3) samples, distinguishing in each case between the three relevant cohorts of respondents. Finding #1: Initial Optimism At the outset, victims were generally quite hopeful about the prospect that the TRC process would address their particular needs, which is somewhat surprising given their natural reservations about the amnesty and the controversies that I described in the section entitled “The South African case study.” Even more notable, there were only modest differences between those that ultimately participated in the process and those that did not. The disparity was more pronounced in the Johannesburg sample, but disappeared altogether among the Cape Town respondents. These results have significant implications for subsequent analysis – both those that gave statements and those that testified in public hearings were nonrandom samples of the victim population. The former were largely self-selected, while the

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Mean evaluation (1 = least favorable; 5 = most favorable)

5

Lead up

Giving victim’s statement

Statement follow-up

Public hearings

Amnesty Aftermath process

4

3

2

1 1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

Stage Submitted statement

Testified

Neither

Figure 11.2 Victims’ evaluations of the TRC process (Cape Town sample). 5

Mean evaluation (1 = least favorable; 5 = most favorable)

Lead up

Giving victim’s statement

Public hearings

Statement follow-up

Amnesty Aftermath process

4

3

2

1 1

2

3

4

5

6

7

8

9

10

Submitted statement

11 12 Stage

13

Testified

14

15

16

17

18

19

20

21

Neither

Figure 11.3 Victims’ evaluations of the TRC process ( Johannesburg sample).

TRC specifically chose those that testified according to a number of loosely applied criteria (high-profile cases, sociodemographic diversity, and so on). Ordinarily, this raises concerns about selection bias. One could mistakenly attribute favorable responses to participation in the process and unfavorable

Victims’ responses to truth commissions 185 attitudes to nonparticipation if one fails to consider a divergence in baseline attitudes. According to this evidence, the starting place for the different cohorts of victims was remarkably similar. Finding #2: The Emotional Roller Coaster Victims’ attitudes toward the TRC exhibited considerable variation that manifests in a number of forms – such as across individuals, circumstances – with markedly nonlinear patterns. These results confirm the preliminary indications from the focus groups, which suggested that victims often express distinct feelings at different points, alternating between positive and negative sentiments. For example, many spoke of elation mixed with anxiety while waiting in line to give a statement, anguish in the course of giving the statement, a sense of relief or dismay immediately thereafter, confusion when there was no follow-up, frustration when the government failed to carry through with its reparations program, as well as an overall sense of satisfaction or benefit from having gone through the process. While these contours are evident, what is not yet clear is whether there are definite, regular properties, such as those ascribed to a psychological process like grieving. This is most evident in the discussions of the statement-taking process. Many participants were hopeful that they would gain comfort, enjoy support from others, or achieve some form of resolution (2, 18, 47–48, 78, 82, 87, 88). Nevertheless, they expressed significant reservations. Some were scared about what lay ahead (3), with one participant even reflecting, “[I]t is useless to make the statement because they are going to kill me like they killed my child” (13). Others were uncertain as to whether “one was moving forward or backward with this thing” (3), noting that it was hardly a moment of joy or happiness (12–13) and that by reviving the pain, “your progress is regressed” (55). The process itself raised vivid and often painful memories – such as the specific incident of victimization (3, 33, 54, 55), a missing child (87), the exact moment when they discovered the death of a child or relative (2, 3, 28), having to identify their dead child in a mortuary (3, 4), the funeral for their child (5), not being able to say who was responsible for their suffering or to provide other salient details to the statement takers (8, 54), and their general anguish (13). Despite the difficult emotions, these thoughts and memories could serve as motivation to participate: I spent two weeks trying to register and never thinking about the cold hearts that ignored me until I got to the top . . . I had to be encouraged by people because my heart was getting faint every time I went there. A flashback of the past kept me going as well (45). In fact, many participants, in addition to being hopeful that their statement or testimony would lead to positive investigations that might eventually turn up their missing relative or identify a perpetrator, expressed relief at being able to document their suffering (33, 72) and to tell their story (36). Quite a few also appreciated the sense of shared experiences – commiserating with other victims, comparing

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their experiences and emotions, and ultimately realizing they are not alone. These interactions had the added by-product for some of revealing that others were worse off or had suffered more dramatically: “As I listened to the other mothers revealing their stories, I felt much better as I compared my stories with theirs. I also found that my problems are much better as the problems from other mothers are more painful”(4). “My anger lasted longer, but books that I read and people who were worse than me were my source of encouragement” (48). Thus, for some participants, moments of comfort and fulfilment counter-balanced their feelings of apprehension and anguish. The process was not without its considerable headaches. Participants complained about the distance they had to travel (38), long queues (45, 47, 50, 51), being forced to return to submit or complete their statement (45, 55), and generally slow progress (35, 45, 71) – all circumstances that aggravated the painful feelings that this process rekindled.52 One participant also noted that home visits would have been more convenient and sensible, as there was the possibility of being in the same queue with a known perpetrator (50). Even more frustrating was strict adherence to the deadlines for submitting statements, which represented a more significant constraint when combined with the workload placed on the statement takers. This contrasted with the apparent willingness to accommodate perpetrators by allowing them additional time to submit amnesty applications – a fact that did not go unnoticed (36). A few participants also felt that the statement fell short of capturing the incident(s) that they wished to describe, whether because the TRC investigator was too pressed for time or sought to formulate a particular type of story (51, 55). For certain participants, submitting a statement made their pain and suffering worse. One source of distress was the resentment over what was seen as a perpetrator-centered approach (69), which “pardons these people who have destroyed our lives but there is nothing we benefit from it” (23). Others were simply overwhelmed by their emotions: After making that statement . . . I wished I could be hit by a train . . . . That anger re-emerged . . . and I even regret why I went to the TRC, because they have revived my hatred . . . the more I talk about it . . . the more that memory comes back (56). In one instance, the process was likened to a form of torture (64). Notwithstanding the more severe reactions, most victims did not indicate that they experienced progressive, cumulative downward (or upward) spirals. Instead, their feelings tended to oscillate, reflecting the tensions and pervasive ambivalence about the process. Finding #3: Hope Springs Eternal The dramatic fluctuations in victims’ responses, while potentially a sign of their ambivalence toward the process, were not completely random. Instead, they appeared to indicate some measure of renewed hope as the process transitioned

Victims’ responses to truth commissions 187 from one phase to another. Despite severe misgivings about the TRC’s follow-up, most victims still managed to keep an open mind about what it can accomplish. In fact, many were encouraged – especially if they had a vested interest – by the initial developments in both the public hearings and amnesty proceedings. These results were consistent with the earlier finding that victims, whether or not they opted to participate in the process, were typically optimistic. Even the disappointments that they experienced did not necessarily shake their enthusiasm for the basic concept of a truth commission, their belief that it could yield worthwhile results, their desire to see it executed appropriately, and their attentiveness to how the process unfolded. Finding #4: Participation Matters? Direct involvement by victims in different aspects of the process appears to have some favorable results. In particular, those who neither testified nor gave a statement felt poorly informed in the initial instance and were noticeably more disappointed in what the public hearings revealed. Contrary to intuition, greater levels of participation did not necessarily increase the level of approval. The effect was consistently small, and those who testified were occasionally less positive (or more negative) about the process than those who merely submitted a statement. This phenomenon has at least two possible explanations. One is that the additional experience of testifying before the public hearings increased victims’ expectations about the tangible (reparations, assistance) and intangible (acknowledgement, respect) benefits that would be forthcoming from the TRC, the new government, and society at large. To the extent that the process did not fulfill these expectations – as is more often the case when the bar is set higher – the process was perceived as unsatisfactory. Another explanation was that some victims who testified actually felt stigmatized, a result of being in the public spotlight. For example, the focus group participants frequently described being marginalized, shunned, ostracized, and abandoned by their community and, sadly, even their own family members: ●

●

●

I was affected a lot because no one speaks to me now. All my friends and relatives have turned against me. People around do not speak to us. They did not even want to come anywhere near my 4-roomed house because they say we are ANC. I could not even send my children to the shops because they were being threatened (25). [R]ight now my family does not even visit me. Since they ran away on the day of the funeral when the soldiers were shooting. They are afraid of coming near me (25). We cannot even sleep at our place, so we used to go around asking relatives for accommodation to sleep over night. The relatives are not always happy to see us because they fear that the killers will trace us back to them and come and kill them too (26).

188 ●

●

David Backer When I came from jail, I was separated from my friends by their parents because they regarded me as a criminal (27). Before people used to be caring and checking up on me, and now they do not do that any more. Now I feel lost. They do not want to associate with me (83).

These responses were not necessarily pervasive. At a minimum, some drew encouragement from those who also queued up to provide their statements to the TRC. There were other concrete examples of support. One participant described how the TRC helped restore a relationship with her son: “I think it became better after the TRC because even my son is able to come and visit me, unlike before. He is still afraid, but he does come” (26). Another stated, “I nearly lost my hope due to their delay, but my advisors kept me on track” (46). Finding #5: (Faint?) Praise for Process Victims were generally positive about the commissioners and staff. One focus group participant, for example, described the compassion that investigators and statement takers displayed in dealing with them on a personal level (81). Another compared the interactions favorably to the treatment received from the ANC (7). Such concern was apparently not universal: “After we made the statements, we were told when to return . . . There was no consolation or comforting or any help. You just made the statement and then it is over . . . They let you go” (21). Nonetheless, participants appeared to have a greater willingness to applaud the sensitivity of those individuals with whom they had direct contact, while decrying the institutional process that has failed to pay adequate attention to victims, meet their needs, and live up to their expectations (71). In this regard, a number of focus group participants levied claims of unfair and unequal treatment: ● ●

● ●

The TRC was created for special people, not individuals (60). What I usually noticed was that they had a way of talking to those with minor and serious problems differently (44). With time, I noticed traces of favoritism (64). The TRC is for whites, not for us (71).

As is apparent, the favoritism critique applied both to comparisons among victims as well as to comparisons between victims and perpetrators. There were also concerns about the integrity of the TRC’s effort – whether it made a sincere attempt to address matters that participants raised in a statement or testimony. Some accepted that the TRC tried to investigate their case, even if it was unsuccessful in achieving a definitive resolution, whereas others were quite dismissive, saying that it did nothing or had been terribly inefficient (71). Others did not blame the TRC as such, instead attributing the lack of resolution to the unwillingness of perpetrators to step forward with admissions and/or to apply for amnesty. Of particular note, these impressions varied across the two research sites, which corresponded to the two distinct regional offices of the TRC. The Cape Town

Victims’ responses to truth commissions 189 sample was more complimentary than the Johannesburg sample in regards to how the TRC treated them and their cases. The results suggest that the staff in the former region was generally more successful in building rapport with victims. One reason why this may have been possible was that the relative workload was far higher in the latter region. Under the TRC’s national staffing plan, the two regions actually had identical levels of personnel,53 but the Johannesburg office dealt with more than three times the volume of cases than the Cape Town office. Finding #6: A Shortfall of Substance Victims were clearly disappointed with the substantive outcomes of the process, at least as they applied to their own specific circumstances. An interesting tension arose with respect to establishing the truth: whereas most victims viewed the public hearings as being relatively constructive in this regard, many were unimpressed by how the TRC pursued their own case. This discrepancy is especially significant since focus group participants often cited truth as a primary motivation for approaching the TRC. In doing so, they typically referred to a specific type of truth – one that is distinctly personal in nature, instead of high-profile events or a broader social narrative. Parents of the dead and the disappeared looked to the TRC to provide details about what happened (2, 3, 12), why their child was killed (2), and who committed (2, 10) or ordered (10) the killing. The injured and tortured were particularly interested in identifying their perpetrators and learning why they committed these acts (32, 48). Another common desire was for the perpetrators to confess to the violations that they committed (14, 43) – as much to have this information (62) as to bring the responsible party to justice (11). There were notable instances that revealed at least the identity of perpetrators (19, 23, 36). Many of the focus group participants indicated that they were still in the dark about critical details of their cases. Responses ranged from disappointment that the TRC failed to turn up any useful information to bluntly disparaging it for doing little. Finding #7: Broken Promises The TRC evidently did a poor job with follow-up, especially in the Johannesburg area. The focus groups likewise indicated that victims developed a clear sense of expectations based in large part on their direct involvement with the TRC process. In particular, being asked what one desires in the way of reparations makes the unmistakable connotation that compensation will be forthcoming. Yet a significant number of those that submitted statements were (a) never contacted by the TRC, (b) not declared victims, and/or (c) never received Urgent Interim Reparations (UIR), which were grants the government distributed between 1998 and 2000 that typically amounted to just R2000 (approximately $250–300). The focus group participants who received the UIR grants were typically dissatisfied with the paltry amount (6, 16, 17, 18, 19, 81). Not only were the grants trivial relative to the extreme violations that victims suffered, the amounts were generally

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inadequate to address their urgent needs in areas such as housing, medical treatment, and education (20). Not everyone blamed the TRC for the situation, suggesting instead that the perpetrators should be responsible for any shortfall. Yet many victims were unhappy that little was done to respond to victims’ specific requests in the hearings, much less to carry through with the full program of reparations that the TRC recommended (20, 30, 36, 51). The paradox, therefore, is that most victims embraced the opportunity to offer their input, but these discussions fuelled expectations of financial support as well as a wide range of services and interventions: relieving the burden of poverty (10, 35), addressing the loss of their house (10, 18, 78), child support and education (18, 20, 35, 38), unemployment (38), medical problems (35, 38), counselling needs (62), pensions (62), demobilization payments (62), and relocation (18, 20). These expectations were almost invariably dashed, including some explicit promises of material assistance (14). Of course, the participants’ requests and desires were not always realistic, given the limited mandate of the TRC and fiscal and other constraints upon the new government. At the same time, victims often took pains to emphasize that reparations were never their goal, that no such payment can ever truly repay or repair their sufferings, and that the compensation should not be treated crudely as a financial reward – at best, it is consolation (83). These circumstances do little to mitigate the fact that victims often felt like their input fell on deaf ears (24, 35, 48), if not mistreated: “We request help but our pleas for help are ignored” (24). Nonetheless, the common sentiments was that such financial payments would show consideration and help mitigate their present hardships (30, 31), which many traced to political violence and/or repression. This category contains things with a more direct or tangible link to specific incidents of victimization, such as medical conditions, tombstones and burials, as well as circumstances such as poverty and lack of education that have origins in the institutionalized discrimination of apartheid. Communication was another sore point. Those who submitted statements ordinarily received a “consideration letter,” thanking them and promising to follow up with a call (49). Some also received letters notifying them as to whether or not they had been declared a victim of a gross violation of human rights. Yet not everyone who submitted a statement received a response, as quite a few focus group participants described with apparent frustration (6, 34, 48, 59). There were also complaints that the tersely written denials of victim’s status failed to provide an adequate explanation for the determination (82). Others received a letter outlining the steps necessary to claim interim reparations, but heard nothing further (as promised) even after they submitted the requisite information, leaving them in the dark as to whether or not – and if so, when – the TRC processed their claim (6). The consensus, therefore, was that the TRC ought to have been more conscientious about maintaining contact, updating those who submitted statements, communicating determinations, and implementing the interim reparations process (35, 62, 71). Finding #8: A Convergence of Disappointment Despite modest differences in their initial expectations, more substantial variation in their reactions as the process unfolds, and various highs and lows along the

Victims’ responses to truth commissions 191 way, the three cohorts of victims ultimately wound up with the same level of dissatisfaction. A potential interpretation of this result is that both the opportunities for participation and individuals’ experiences with the different aspects of the process have no significant impact in the final analysis – after all, on average everyone winds up in essentially the same place. Nonetheless, this strikes me as too crude a conclusion for several reasons. One is that the cohorts initially exhibited comparable levels of optimism and – at least in the pooled sample – follow remarkably similar trajectories. Consequently, it should come as no surprise that they rendered similar judgments about the extent that their expectations were met. In addition, victims’ evaluations evolved in concert with the process, and came to be dominated by concerns about the lack of follow-up or useful resolution of investigations and, ultimately, the minimal steps taken toward the payment of reparations (a situation that did not progress until after the surveys were conducted). Rather than say that the earlier or more peripheral experiences do not matter, it might be more accurate to say that they received less weight as time passed and more recent and consequential circumstances guided victim’s impressions. Finding #9: A Tale of Two Cities Another important result, which supported the conclusion that the experience of participating in the process matters significantly, was that responses differed across the two research sites. The victims who participated in Johannesburg were extremely hopeful about the TRC as a whole – even more so than the Cape Town sample – and the statement-taking process and the public hearings in particular. Yet they were ultimately bitterly disappointed in the follow-up by the local TRC branch office; in fact, they were actually more dissatisfied than those who remained as observers. A likely contributing factor was that the Johannesburg regional office was overburdened relative to the Cape Town regional office: a decision was made at the outset to afford all of the offices the same level of staffing, but the former handled more than three times the number of cases as the latter. Moreover, the Cape Town office followed up with each individual who had testified in the local victim hearings.54 By contrast, the Johannesburg office invited those who testified to attend group workshops that it conducted in the communities where hearings were held.55 Compounding these problems, the Johannesburg respondents, unlike their counterparts in Cape Town, were clearly more ambivalent about the staff members with whom they interacted. When all of these factors are taken into account, victims in the Johannesburg area emerged from the process with a strong sense of dissatisfaction and even unfairness about how their individual cases were handled.

Conclusion This chapter helps address the need for primary research on the impact of transitional justice processes. In particular, truth commissions have emerged as a popular strategy whose merits have been widely debated because of the concessions

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they required from victims of past human rights violations. While there are competing theories about how these individuals reacted to this situation, the evidence has remained limited due to a lack of relevant empirical studies. I opt to examine responses to the South African TRC, which distinguished itself from other truth commissions to date by adopting a uniquely public and participatory approach. The opportunity to submit statements and to testify in public hearings, as well as to register opinions concerning amnesty applications, ensured that the victims could play an important role in how the process unfolded. My analysis, in turn, examined how such participation influences their evaluations. The qualitative material from the focus groups and the quantitative data from the surveys yielded four significant findings that are crucial to appreciate for those who are examining past truth commissions, contemplating new undertakings, or assessing the utility of this mode of transitional justice. First, victims’ responses are not monolithic; rather, they are heterogeneous, complex, and subtle. Victims exhibit an immense variety of views and have many concerns that affect their outlooks. In addition, they are often precisely attuned to particular elements of the process, like how the person who took their statement treated them and whether a letter they received from the commission gave a clear explanation for a decision that was reached. Second, individual victims express different sentiments about the distinct aspects of the TRC process. The focus groups and the surveys were limited in that they provided only retrospective, cross-sectional snapshots of victims’ attitudes, without an established baseline to compare the data. Nevertheless, this evidence strongly suggests significant fluctuations in attitudes over time, as a function of victims’ distinctive exposures to the process. Under such circumstances, the actual manner in which a truth commission is conducted is arguably more important than the basic policy decisions about whether to implement an investigative body and its terms of reference. In fact, matters of design and implementation clearly influence victims’ impressions about whether the TRC was a just process. Notwithstanding their views about substantive outcomes like amnesty and reparations, they clearly value procedural considerations such as access, transparency, sincere efforts at investigation, equitable consideration of cases, and compassionate treatment. A degree of disappointment and even resentment was evident among those who submitted statements but were not afforded the opportunity to testify in community hearings. These results underline the importance to many people of telling their stories in public, and thereby exerting more control over the construction of truth, memory, and history. Many participants were especially disappointed by the limited progress on reparations and investigations, yet they also cited shortfalls such as failing to keep promises and to provide periodic updates. These concerns attested to the significance of procedural considerations alongside substantive outcomes – in this instance, the TRC neglected to provide the attention and support most victims desired. In fact, other faults in the process clearly magnified the strong sentiment of opposition to the lack of prosecutions such as: investigative

Victims’ responses to truth commissions 193 dead ends frustrating the search for truth, the apparent reluctance of many perpetrators to apply for amnesty, and the resulting failure to hear directly from individuals who were responsible for particular acts. Third, victims can be deeply ambivalent, if not conflicted, about the process. They may acknowledge and maintain reservations about their own participation, even while citing a reasonable measure of optimism or hope about what such involvement would yield. The actual experience is prone to trigger a recurrence of emotional and psychological trauma; others raise concerns about being stigmatized. Yet, victims can also point to benefits that are quite consequential – communing with other victims, learning the truth, achieving closure, and affirming esteem and identity. Moreover, even those who express severe doubts are generally satisfied with their decision to participate and indicate they would do so again. Fourth, as much as one might like to analyze victims’ responses in isolation – like in terms of the narrow lens of the incident of serious abuse and their subsequent experience with the TRC process – these reactions cannot be easily divorced from broader circumstances. In particular, victims were often inclined to seek the rectification of conditions of social and economic inequality, rather than merely desiring accountability for perpetrators of past violations. They cared deeply about things like education, housing, and employment – and often cite these as their needs in regards to reparations – that do not appear to be directly linked to a specific episode that they suffered. Moreover, victims tended to see a truth commission process as symptomatic of larger problems with political institutions such as the legal system and the police. In the larger project,56 I examined how participation in the TRC process influenced both victims’ perceptions of justice surrounding the serious abuses that they experienced and their sense of attachment to the political system. Here, the story is equally complex. Victims consistently expressed dissatisfaction with the extent of truth, accountability, punishment, and other conventional notions of justice related to these extreme violations. In addition, they also voiced demands for the alleviation of social, political, and economic inequalities. Thus, the TRC suffered from the lack of transformation both indirectly – in the sense that this process cannot be dissociated from the national agenda – and directly – because of the amnesty and the paltry reparations program. Even if the TRC was an essential and beneficial exercise for the nation as a whole, the opportunities for engagement did not necessarily alleviated discontent about substantive injustices. The process may actually have the paradoxical effect of inducing – or at the very least exacerbating – political mistrust and alienation among those who participated in the process due to unmet expectations. This outcome parallels the concern that a truth commission, rather than being a means of catharsis and closure, may instead “retraumatize” victims. These results highlight the importance of understanding, based on careful empirical research, the dynamics and implications of transitional justice. In particular, the truth commission approach appears to have upside benefits if designed and executed appropriately, but downside risks if not.

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Notes 1 Kritz 1995; McAdams 1997; Backer 2004. 2 Nino 1991; Zalaquett 1992; Alfonsín 1993; Benomar 1993; Boraine et al. 1994; Little 1999; Minow 1999. 3 Hayner 1994, 2001; Kritz 1995; Posner and Vermeule 2004; Backer 2004. 4 Aspen Institute 1989; Landsman 1996; Steiner 1997; McAdams 1997; Skaar 1999; Rotberg and Thompson 2000; Minow and Rosenblum 2003; Torpey 2003; Elster 2004. 5 Backer 2004. 6 There is a long-standing debate about how to refer to those who have been immediately affected by human rights abuses. The TRC used the term “victim,” and distinguishes between “direct victims” (i.e. those who personally experienced abuses) and “indirect victims” (i.e. those who were traumatized or otherwise affected by abuses perpetrated against family members). Alternatively, many circles consider “victim” to be a derogatory descriptor, at least in its application to those who are still living. 7 Huntington 1991. 8 Speck 1987; Zalaquett 1989, 1992, 1994; Huyse 1995. 9 Malamud-Goti 1989, 1990; Nino 1991; Lederach 1997. 10 Alfonsín 1993. 11 Lapsley 1998; Soyinka 1999; Tutu 1999. 12 Boraine et al. 1994; Asmal et al. 1996; Teitel 1997, 1999; Little 1999. 13 Backer 2004. 14 Pion-Berlin 1993. Those implicated in past abuses might still have cause for serious alarm, since truth commissions ordinarily establish and publicize these violations and may even name the people who they deem to have been responsible. Relative to a straightforward amnesty, these revelations are certainly more damaging to the perpetrators. 15 Garro and Dahl 1987; Roht-Arriaza 1990; Orentlicher 1991; Kokott 1993; Bassiouni 1996; Neier 1998. 16 Roht-Arriza 1995; Harper 1996; van Zyl 1999; Doxtader and Villa-Vicencio 2003. 17 Huntington 1991. 18 Botha 1998. 19 Gibson and Gouws 1999, 2000, 2003; Gibson 1997, 2002, 2004a,b. 20 Hayner 1994, 1996, 2001; Jeffrey 1999; Minow 1999; Boraine 2001; Shea 2000; Villa-Vicencio and Verwoerd 2000. This list excludes popular journalistic accounts such as Wechsler (1990), Rosenberg (1995), and Krog (1999), which capture individual narratives but are not specifically designed as analytical treatments of victims’ attitudes about truth commissions or other transitional justice processes. 21 See also Theissen (1996, 1999), syntheses of public opinion polls that explicitly address the TRC. 22 Even if one assumes that the number of people who could conceivably have participated in the TRC process – in so far as they are victims of the same serious abuses – is far greater than the number of people who actually did (almost 22,000), the representation of the former cohort in the Gibson and Gouws survey sample still remains modest. Another consideration is that for analytical purposes, they intentionally oversampled individuals who are white, Colored, or of Asian origin; nonetheless, blacks/Africans suffered a disproportionate share of violations under apartheid. My best guess, therefore, is that the sample contains at most a few dozen victims of serious abuses (unless this population is upwards of a million or more). 23 A vast number of books, articles and other scholarly works have focused entirely on the South African case, including Berat (1993); Boraine et al. (1994); Asmal et al. (1996); Battle (1997); Dyzenhaus (1998); Hay (1998); Nuttall and Coetzee (1998); Jeffrey (1999); Krog (1999); Meiring (1999); Meredith (1999); Tutu (1999);

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24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41

42

43

44

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46 47

Van der Merwe (1999, 2001); Van Zyl (1999); Christie (2000); Orr (2000); Sachs (2000); Shea (2000); Verwoerd and Mabizela (2000); Villa-Vicencio and Verwoerd (2000); Boraine (2001); James and van de Vijver (2001); Khoisan (2001); Wilson (2001); Graybill (2002); Posel and Simpson (2002); Bell and Ntzebeza (2003); Godobo-Madikizela (2003); Leebaw (2003); Ross (2003); and Daye (2004). Gibson et al. 1998. Tyler 1989; Caldeira and Gibson 1995; Gibson 1997; Ulbig 2000. Easton 1965, 1975. Thibaut and Walker 1975. Hirschman 1970; Lind et al. 1983; Tyler 1987; Lind and Tyler 1988. Citrin 1974; Tyler and Caine 1981; Hetherington 1998, 1999. Finifter 1970; Muller et al. 1982. Hirschman 1970; Diamond et al. 1988a,b; Diamond 1993, 1999; Diamond et al. 1997; Linz and Stepan 1996; Bratton 1999. Huntington 1968; Unseem and Unseem 1979; Powell 1982. In South Africa, for example, one would expect a tangible difference between giving a statement and testifying, especially given many victims’ desire to tell their stories in public. Backer 2004. The AZAPO Case. Torrens 1999. Theissen 1996, 1999. Gibson and Gouws 1999, 2000. Battle 1997. TRCSA 1999a–e. At the time, Dr Sonis was a member of the faculty of the Department of Family Medicine and School of Public Health, University of Michigan. In July 2001, he joined the Department of Social Medicine at the University of North Carolina. Funding from the Templeton Foundation supported his research. Fieldworkers were instructed to first approach the dwelling immediately to the left or right – alternating between the two – upon exiting the Khulumani member’s dwelling. If a fieldworker could not locate an eligible nonmember, the fieldworker was then to approach each succeeding dwelling – up to a maximum of three – in the same direction. If these attempts still did not yield a suitable respondent, the fieldworker was to search in the opposite direction, again beginning with the first dwelling next to the Khulumani member and each succeeding dwelling up to a maximum of three. The limits on the number of dwellings were imposed for the sake of administrative efficiency, as well as to maintain the reliability of the matching process. In practice, fieldworkers were generally able to locate and recruit a suitable respondent. The witdoeke (an Afrikaans term that translates to white scarf) were a group of older residents of the Crossroads area who allied with the police during the early 1980s against the younger supporters of the United Democratic Front, also known as “comrades.” The police sanctioned the use of weapons by the witdoeke, who were directly involved in attacks on neighboring townships. This figure would be even higher had the sample included a greater representation of victims from the East Rand, which was overwhelmed by the IFP-ANC communal conflict-cum-political rivalry during the 1990s, as versus Soweto, where the state dominated the political violence. See Appendix A for further details. More than 21,000 people submitted statements to the TRC, yet even a conservative guess would place the population of those who suffered – directly or even indirectly – gross violations of human rights between 1960 and April 1994 in the hundreds of thousands. Thus, the true ratio is at most one in five, and is probably far lower. Van Zyl 1999. “In general, there was only a limited overlap between [the 21,000 plus] victim statements and [the 7,500 plus] amnesty applications” (TRCSA 2002:3).

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48 One possible explanation for this unexpected result is the wording of the question. Even though the text read as a lead-in would tend to suggest otherwise, “the struggle” could be interpreted as meaning only the activities of the liberation movement. 49 The TRC referred almost 30 percent of respondents who gave statements to someone for assistance; a majority of these respondents followed up on the referral. 50 Questions 2, 4, and 9 are reversed scored to ensure consistent interpretations along the scale. 51 Catmull and Rom 1974. 52 In fact, one participant describes how his statement ran long and he needed to return the next day, only to discover that the file could not be found on the computer (55). 53 TRCSA 1999a: 436. 54 Ibid.: 401. 55 Ibid.: 442. 56 Backer 2004.

Part IV

Disarmament, demobilization, reintegration, post-war reconstruction, and the building of a capable state and the role of the international community in the peace process

12 Reconstruct governance to rouse Liberia, long forlorn Byron Tarr

Introduction Failing to link the present with the recent past that Lowenkopf once praised, he concluded that the Liberian state is no longer a legitimate functioning order. “. . . Society in general is shattered, the nation fragmented, the population dispersed and the economy . . . in ruins.”1 A 1991 United Nations assessment concluded that in Liberia, non-governmental organizations and international agencies virtually replaced the civil administration in the social sector . . . social services . . . normally managed by . . . government [were] almost nonexistent . . . the physical facilities . . . badly damaged or . . . entirely destroyed. . . . The productive sector [was] . . . adversely affected. There was almost a total cessation of economic activity . . . [and] the physical infrastructure . . . [was] also badly damaged.2 Though dire, these observers could not anticipate that a virtually continuous civil war between 1989 and 2003 would place Liberia among the worst war-affected nations.3 The Liberian state failed because its governance structure originated in, and remained faithful to, the peculiarities of its founding and the nineteenth-century governance philosophy that underlay its constitution and legal regime. In addition to ineffective enforcement and implementation, lack of transparency, and corruption, the constitution, though clear in the legal sense, has significantly less meaning in practice when many of its core provisions are woven into a maze of exceptions.4 Liberia’s patronage culture inescapably evolved the “criminal gang operating a criminal enterprise” – Charles Taylor’s administration (1997–2003). This chapter is more interested in initiating reform to prevent retaining the legal regime and political culture that imploded the Liberian state than in explaining Liberia’s historic unsuitability as a “noble experiment in Negro government.” To prevent repeating history, Liberians and the international community, in partnership, must begin under the National Transitional Government to build the justice system.5 Without a justice system, there can be no peace. Without peace, there will be no prosperity. To assist Liberia, the partners must

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accept Kofi Annan’s call to “learn to eschew one-size-fits-all” formula. Acceptance requires understanding the causes of state failure. To rescue the failed Liberia that actively destabilized its neighbors and assisted in international terrorism,6 the International Contact Group on Liberia7 (ICGL) brokered a Comprehensive Peace Agreement among three warring factions – Charles Taylor’s “criminal gang” without him, LURD (Liberians United for Reconciliation and Democracy), and MODEL (Movement for Democracy in Liberia).8 The 18 registered political parties signed the Agreement on August 18, 2003, which was witnessed by an anomalous “civil society” and “guaranteed” by the ICGL. The Agreement was the fourteenth accord that these parties signed between 1989 and 1996. “Civil society” betrayed the public’s trust by accepting positions in the National Transitional Legislative Assembly and the cabinet rather than remaining the people’s conscience. The signatories expropriated all positions in the Assembly whose tenure is from October 2003 to the end of 2005. The allocation of positions in the Assembly veritably rewarded factions for their horrific brutalities and destruction,9 reentrenching impunity and patronage to sustain dysfunctional governance. Like the American Colonization Society (ACS), the ICGL failed to input knowledge of the causes of interrelated deadly conflicts into resolving the endemic conflict. It is too early to determine if the current failure reflects the ignorance and disdain of the culture that established dysfunctional governance in Liberia, but the Agreement ensured its continuation by expanding the range of patronage by rewarding persons who may have committed crimes against humanity. The structure it created is unworkable, and the national environment – polity kept divided by official policy, culture, and custom – is antithetical to democratic governance, unless induced by a more discerning international community. It cannot become a nation by wishing it. The structure inevitably prevents governance from becoming transparent, responsive, and participatory. The chapter is organized around three primary ideas: (1) given Liberia’s dysfunctional governance structure rooted in the constitutional and legal regime, democratizing governance requires a fundamental reform of that regime, and of customs and habits, to develop political attitudes suitable to democratization. (2) Liberia was founded as a “haven from oppression,” but adopted a divisive, oppressive governance structure antithetical to the rule of law and participation. (3) With the failure of its governance system, Liberians are presumed likely to opt to replace the failed system. The program proposed has the potential to resolve Liberia’s interconnected, recurring crises and responds to the world community’s obligation to maintain peace and security. This chapter (1) outlines a fundamental governance reconstruction framework; (2) justifies the framework in terms of the historical, not the illusory, Liberia; and (3) given the National Transitional Government and the Agreement’s assessment, concludes that either or both are unsuitable to reconciling Liberians or to begin healing the people to create a nation, and therefore appeals for international support to initiate reform. The section “Liberian governance reconstruction agenda” outlines a sustainable governance reconstruction program to resolve

Reconstruct governance to rouse Liberia 201 Liberia’s endemic, deadly conflicts as the first order of business to build a nation. Delays to begin reconstructing the essential governance structure will further advertise Liberian instability as it enhances the profitability of dysfunctional governance, which a succession of “Big Chiefs” have practiced. Only foundational governance reconstruction can resolve Liberia’s endemic crises. To embark sustainably Liberia on the difficult road to becoming a nation that is a responsible member of the community of nations, reconstruction of governance begins with constitutional and legal reform. Until changes to the legal regime create a culture antithetical to patronage and therefore impunity, Liberian politics will proscribe and evaporate the peace. The reform agenda focuses on the root, operational, proximate, and catalytic causes of the deadly conflicts and political violence in Liberia between 1822 and 2003. It is arguably the only program capable of preventing the dire prognoses of persistent West African degradation.10 Comprehensive, as opposed to partial, reform must begin during the transition. The section “Deadly conflicts founded Liberia and continue to drive its politics” contrasts the historical Liberia with that portrayed by praise singers of a romanticized nation-state, cognizant of the lamentation of the tendency of writers on Liberia to be unhealthily critical or praise singers.11 The section “The Comprehensive Peace Agreement” assesses the Agreement, concluding that despite universal agreement on the need to initiate fundamental reforms to transit from collapse, the Agreement and its National Transitional Government have failed to give it priority, ensuring continuation of Liberia’s violent culture.

Liberian governance reconstruction agenda Although the Agreement created six commissions to focus on governance reform, neither the National Transitional Government nor its International Contact Group on Liberia guarantors have prioritized fundamental reform; there is no significant effort to analyze the root, operational, and proximate causes of Liberia’s perennial conflicts. Nevertheless, even if the National Transitional Government were to focus on fundamental governance reform, the Agreement, as designed, can only continue Liberia’s political culture of patronage and impunity, participatory governance is ipso facto proscribed.12 The National Transitional Government is poised to become another interregnum between increasingly violent crises. Undoubtedly, the restoration of security remains the first order of business to reconnect Liberia with its ideals and 1847 National Vision, but building durable peace requires the overthrow of impunity. The ICGL’s failure to prioritize governance reform calls attention to the reggae singer Peter Tosch, “Everybody is crying for peace, but no one is crying out for justice.” More than a century before Tosch, the preamble to Liberia’s independence Constitution declared that “[t]he end of the institution, maintenance and administration of government is to secure the existence of the body politic, to protect it, and to furnish the individuals who compose it, with the power of enjoying in safety and tranquility their natural rights and the blessings of life. . . .” To secure these blessings for

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posterity, the idea and ideal of Liberia was to “[e]stablish justice, ensure domestic peace, [and] promote the general welfare.”13 Ineffective enforcement and implementation of the constitution evaporated transparency as corruption sustained dysfunctional governance. Liberia betrayed its promise.14 Reconnecting Liberia with its Vision is unlikely when interlocking goals, none of which is achievable without the other, are separated. As in the past, the beneficiaries of dysfunctional governance may sing their refrain, “He killed my pa; He killed my ma; I’ll vote for him.” But W.H. Auden’s tale will always be the response: “I and the public know; What all schoolchildren learn; Those to whom evil is done; Do evil in return.” Unsuccessful attempts at governance reform Just as Liberian history is replete with unresolved deadly conflicts, it also documents many unsuccessful attempts at governance reform. All prior attempts failed to decentralize political power, give Liberians an identity,15 unify the people, and build capacity. The attempts were not holistic and did not critically involve Liberians in their design. Design neglected the interdependence of governance elements. Would-be external rescuers were indifferent to the intertwined inhibitors in Liberian culture to participatory, accountable governance. Even Liberians were ignorant of the shortcomings inherent in the foundation, for otherwise, why did the 1986 Constitution not create a framework to remedy them?16 Rescuers sought to impose reform and Liberia failed at governance reform because each attempt has underestimated the tenacity of the patronage culture that evolved the government of the president, for the president, and by the president. To our knowledge, Liberia has never voluntarily undertaken governance reform; third parties, desiring to terminate a specific crisis impacting their relationship with other states or in protecting the interests of their nationals, initiated limited purpose reforms. Liberian response invariably erected mechanisms to frustrate achievement of the goals, for the oligarchy invariably perceived reforms as measures to curtail Liberian sovereignty, and therefore is a threat to regime security.17 The reforms were short-term events not designed to activate processes with capacity to induce those affected by proposed reforms to buy into a sustainable process. Each ignored the interrelationships among justice, peace, and prosperity. As a result, the backlog of injustice accumulated. Attempts did not understand or take into account the origins, inspirations, and limitations of previous reform experience. This proposal imbibed the lessons of previous unsuccessful reform attempts and avoids repeating history. This subsection begins with a brief description of previous 16 major attempts. The list of past unsuccessful reform exercises later excludes sector-specific reforms such as the USAID-funded and Cornell University-implemented program to strengthen the University of Liberia (1960s), the USAID-backed efforts to promote rural development (1960s) and agriculture (1970s), and the UN Educational, Scientific and Cultural Organization-sponsored Education Sector

Reconstruct governance to rouse Liberia 203 Reform (1980s through 1990s). The only two proposed attempts that were comprehensive and possessed significant potentials to reconnect Liberia with its Vision – the program designed by a US Presidential Commission in 1909 and the League of Nations’ Plan of Assistance to Liberia – were never undertaken. Domestic US politics, not excluding racism, prevented implementation of the former; the Liberian Government rejected the League’s Plan of Assistance, perceiving it as a threat to its sovereignty. We developed our program with a unique knowledge of the failed attempts. Building a durable peace and disconnecting Liberia from its violent past requires that the process begin during the transition, a period akin to Rawls’ “veil of ignorance,” and that it be a long-term commitment to comprehensive governance reform. Given Liberia’s inability to decide whether it remains “an outpost of western civilization” or is an African state desiring to be a responsible member of an integrating subregion, reform to its constitutional and legal regime to empower a unified people must be competently evaluated before choosing components of the incompatible governance systems that it brazenly fused, to establish its governance superstructure. While reform must be coterminous with efforts to end Charles Taylor’s horrific catastrophes, it ought to appreciate that except for exporting Liberian instability, Taylor’s violence differentiated only in terms of degree, not kind. Deadly conflicts founded Liberia, and it has remained violent. The international community’s failure to commit early, whether justified in terms of the primacy of security and safety or greater demand for the enabling resources elsewhere will return Liberia to “politics as usual,” ensuring that Liberia remains “the key to sub-regional instability.” Assistance to Liberia should prioritize capacity development unlike the preparation in 2003 of the UN Results-Focused Transitional Framework. Prior unsuccessful attempts at Liberian governance reform: ● ● ● ● ● ● ● ● ● ● ● ● ● ●

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The 1846–47 Constitutional Convention Foreigners as District Commissioners Project (1920s) The League of Nations’ Plan of Assistance (1930s) Edwin Barclay’s attempt to create a meritorious Civil Service (1930s) “Tubman’s” Open Door Policy (1940s) The Harvard Advisory Mission (1960s) The Special Commission on Government Operations (1960s) The 1962 IMF “Structural Adjustment” and Austerity Program The 1964 Abolition of Distinction between Hinterland and County Governance The Cornell Codification Project (1970s) Concessions Sector Reform (1970s) State-owned Enterprises Reform supported by the World Bank (1970s) The Brownell Commission (1970s) The National Constitution Commission and auxiliary bodies, or Doe’s constitution making process OPEX and the embedded Economic and Financial Management Committee (1980s)

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Liberia’s infamous receiverships initiated in the 1920s perhaps constitute a unique category of attempted reforms. It is arguable whether to consider the ECOMOG (Economic Community Cease-Fire Monitoring Group) process that arrested violence and facilitated the 1997 general and presidential elections reforms. Reform is indispensable to resolve sustainably a crisis; did the ECOWAS (Economic Community of West African States) accords merely seek to terminate the crises? Reform ought to focus the strategic linkage of causes of mal-governance. The governance reconstruction, the Liberia Reform Agenda that this chapter proposes (see Appendix) is a framework outlined in a matrix of actions, strategies, and goals in the context of Liberia’s endemic, interrelated crises. Sustained actions targeting the causes of Liberia’s interconnected crises are the sine qua non for stability and development in the subregion. The Liberia Reform Agenda accepts the ideals Liberia committed itself to in 1847 as constituting its National Vision for the twenty-first century. The process to develop the Liberia Reform Agenda accepts that the Liberian state collapsed and its previously inadequate infrastructure virtually disappeared during the past two decades. Governance reconstruction is to proceed, in Kofi Annan’s words, within “a context marked by devastated institutions, exhausted resources, diminished security and a traumatized and divided population.”18 Recommitting Liberia to its Vision requires that the state first become a nation.19 Nation-building requires imminently more than marginally improving the efficiency of existing institutions, as the Agreement proposes. Comprehensive constitutional and legal regime reform likely to resolve endemic political, economic, and humanitarian crises must replace the extant culture that prohibits the removal of elected public officials from office.20 A desirable program would establish new eligibility rules for citizenship, as well as outline processes to reform the attitude of government to citizens and of citizens to their government so that attitudes and customs create a sense of reciprocal responsibility of government to citizens and citizens to government. Disorder as a political instrument may have provided regime security but it cannot yield pro-poor growth, which requires participation, transparency accountability, and transitional justice.21 To establish Liberia on a path to durable peace during the transition, a reform process led by Liberians should seek to incorporate the peculiar, collective Liberian experience into improving the demand for effective, responsive governance. Comprehensive reform should be designed to exorcise Liberian disposition to patronage and terminate the view that the United States is obliged to do for Liberians what they ought to do for themselves. But because Liberia lacks the technical and financial resources to initiate and sustain reform, successfully initiating Liberian reform requires consistent international involvement in partnership with Liberians. America needs to be a senior partner in the enterprise.

Reconstruct governance to rouse Liberia 205 Governance reconstruction agenda Liberia’s founding peculiarities and its flawed constitutional processes, as the section “Liberian governance reconstruction agenda” discusses, determined its opaque governance culture and remain impediments to nation-building. The structure of governance evolved by a nineteenth-century philosophy, which accepted the categorization of races as “inferior” and “superior” and was indifferent to the well-being of the majority of a people and their society it disdained but about whom it elected to remain ignorant, established its racist colonial posture. The emancipated blacks for whom the territory was acquired were as ignorant as their sponsors about the society in which they found themselves; though they had never participated in any form of governance, they considered that their sojourn in the West made them superior to the indigenes. They established governance structures that made instability and underdevelopment inevitable.22 That is why comprehensive reform design must create structures to make reform demand-driven. Planning must guard against exchanging one dysfunctional system for another – installing one “Big Chief ” in place of another.23 The process that transformed the president into a chieftain manifests the deliberate but incompetent merger of incompatible forms of governance. A sustainable reform program has to be developed by not for Liberians. The responsibility to reform Liberia belongs to Liberians; external assistance should only catalyze commitment. Reforming Liberia requires a framework to counter transcending inhibitions rooted in accumulated attitudinal, cultural, legal, and institutional disorder. Planning for reform must appreciate as well as anticipate principal shortfalls that explain previous reform failures. First, it must anticipate the reinforcing of the strengths of nearly two centuries of dysfunctional governance in which personal interests and regime security coincided to evolve disorder as a political instrument. Clients and patrons will not disappear upon program adoption, although an effective transitional justice program would provide a credible warning. The second potential pitfall to avoid is Liberia’s dependency syndrome: the unsupportable presumption of a “Special Relationship with the United States” that presumes a US obligation to rescue Liberia, while history demonstrates that the United States consistently neglected Liberia, both as a colony and as an independent state.24 The third pitfall that planning must avoid is uncritical acceptance of international governance reform advice. Evidence abounds that international development institutions tend to preach a philosophy that “one size fits all.” Such groups tend to ignore the political context of public policies and they usurp policymaking functions isolated from the attending responsibilities. Their excessively generalized conclusions, such as the World Bank’s conclusion about civil wars, are infrequently true in particular cases.25 But usurpation is made more unacceptable by the frequency of their errors. After years of mandating liberalization, for example, Kenneth Rogoff, the IMF’s chief economist, admitted that forcing developing countries to open their markets to foreign investors could increase the risk of financial crises . . . that in some cases the

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Byron Tarr process of liberalization has been accompanied ‘by increased vulnerability to crises . . . There is “little evidence” that [the IMF’s] policies on liberalization encourage economic growth in poor countries . . . If financial integration has a positive effect on growth, there is as yet no clear and robust empirical proof that the effect is quantitatively significant.26

The World Bank’s submission to the UN International Conference, Financing Development, held in Monterrey, Mexico, March 2002, entitled The Role and Effectiveness of Development Assistance: Lessons from World Bank Experience, assessed the situation of highly indebted poor countries. The paper admitted that while demanding states to democratize their governance by improving consultation and participation in the political decision-making process as a prerequisite to participate in the HIPC (Highly Indebted Poor Countries) process, the Bank failed to democratize its own processes. Sustainable reform must be long-term and implemented within the historical and cultural context to excite an internal dynamic to propel it. Problems and goals Even as Liberia’s weak, fractious political parties remain preoccupied in their zero-sum game for the presidency, efficacious interim arrangements during the transition can create space and enhance opportunities for civil society27 to lead the design effort “under a veil of ignorance.”28 A competent participatory process, supported by external assistance, would enable even a weak civil society to initiate a plan for Liberian redemption. For that reason, the Liberian Reform Agenda rejects the logic that suggests that as long as the Liberian government continues to fail to allocate resources to pro-poor growth, there is little chance to democratize governance. That logic argues that what is needed, first, is a strong effort to bring the economy, the educational and health systems, the media, civil society networks, and personal security up to a level that helps people by raising agricultural productivity and reducing poverty. But that logic forgets that strategic linkages exist among economic, political, and social issues, especially in complex conflict situations. Necessarily, the Liberia Reform Agenda is a multiyear exercise to relink Liberia with its purpose. The Liberia Reform Agenda outlines a participatory approach for competent and experienced Liberians and friends of Liberia to lead; it is to create the processes to reform the constitution and legal regime to specify policy instruments and reduce overlaps to attack dysfunctional governance. It is conceived to define and adopt approaches, formulate and implement policies, and create development management capability to reconnect Liberia with its goal of becoming a nation, in which the rule of law prevails, making it peaceful and prosperous. It is to be informed by dispassionate research and diagnosis based on critical analyses that would identify policy options. Its approach is to catalyze popular participation in policy formulation, implementation, and monitoring and evaluation. The Liberia Reform Agenda is to stir a wind of change in Liberia to “rouse a nation long forlorn,”

Reconstruct governance to rouse Liberia 207 for independence failed to seize “from the waking morn, it shield of golden flame” but sustained Liberia’s hopelessness. It seeks to develop, adopt, and assist in implementing a systematic process to combat the preventable causes of the Liberian state’s failure. The Liberia Reform Agenda is a program to transform a divided polity into a nation by sustainably seeding the comprehensive reform process through strengthened, restructured institutions, public as well as civil society ones, so that their responsibilities and authorities remain independent yet synchronized and collaborative. The Liberia Reform Agenda accepts that participation requires decentralizing political power, which requires capacity building at all levels of governance, especially at the lower levels where governance heretofore was by a central state authority. Building capacity requires prioritizing investment in education and health, and building social capital. It also requires adapting suitable indigenous political systems so that village-based structures can resume their traditional roles that the central government’s early twentieth-century impositions destroyed, as discussed here. The Liberia Reform Agenda’s primary objectives include: ●

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identifying transcending bottlenecks to efficient, democratic governance – found in the Constitution, statutes, customary laws, and administrative regulations as well as in attitudes, behavior, and culture. The Liberia Reform Agenda’s premise is that as in 1847, the 1986 Constitution failed to provide a framework for democratic governance; it proscribes governance below central state authority and overcentralizes authority in the president, unduly pre-disposing governance to patronage. Inevitably, the mandates of public institutions overlapped and conflicted, and rendered performance ineffectual. Traditional governance structures and practices, co-opted and abused, require corrective action suggested by diagnostics to restore their usefulness toward a unified context in place of a public policy dividing the polity; choosing the more efficacious alternative approach to decentralizing political power to enhance participation, satisfying the associated capacity needs by carefully designing and installing a framework to build capacity, including representation and taxation, and improving civic education; developing a realistic road map for pro-poor growth – an appropriate macroeconomic policy framework focused on fiscal discipline and a medium-term expenditure framework, which is biased in favor of the social sector and develops a monetary policy suited to price stability and regional integration;29 creating an autonomous, central statistical organization with capacity to improve data collection and the regular and timely availability for policy formulation, implementation, monitoring, and evaluation; and preparing and costing public sector reequipment.

The Liberia Reform Agenda is arguably the first exercise of its type for Liberia that Liberians initiated. It appreciates Liberia’s peculiarities that made a century of dysfunctional governance appropriate to hegemonic rule possible while acknowledging her commonalities with sub-Saharan Africa. The shortcomings militarized

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politics, institutionalized violence, led to massive human rights abuses, and the mass exodus of skilled personnel. The Liberia Reform Agenda outlines a framework to operationalize comprehensive governance reform in Liberia, including rationalizing institutions and institutional functions; it proposes a process to align the authority and responsibilities of agencies. To counter a basic source of dysfunction in Liberian governance, the Liberia Reform Agenda proposes methods to create a policy process that prioritizes national goals, not personal or regime security goals. It outlines procedures to create an independent bureaucracy comprising meritorious and competent civil service that an independent and competent judiciary can support under a single legal code. It is based on the belief that decentralized governance devolving political power to tiers of government below central state authority is indispensable to undermining patronage and impunity, hence corruption. The Liberia Reform Agenda seeks to build capacity in the public and private sectors and empower civil society and community-based organizations as well as women’s groups so that they assume prioritized roles in Liberian development. Fully developed and implemented, the Liberia Reform Agenda will contribute to improving human rights, especially the rights of women, and ensure transitional justice to create a demand for democratic governance. Its methods will install mechanisms to reform the Constitution and implement the 1847 Constitution’s provision that the people have the right at all times to recall elected officials. The Liberia Reform Agenda will forge reconciliation, peace, and justice in Liberia, for it appreciates the linkage between national identity, a common destiny, and reconciliation. In order to foster accountable and transparent governance, the Liberia Reform Agenda seeks to increase citizen participation in monitoring and influencing the budget process and the management of public expenditures. The Liberia Reform Agenda’s implementation procedures contemplate prioritizing human capital accumulation; to empower and involve legislators and civil society organizations to advocate improved governance and to monitor and evaluate national policy formulation and management. The Liberia Reform Agenda rejects “trickle down theory” or “baby steps” for until ordinary Liberians reject the logic of personalized politics and question the legitimacy of disorder and struggle for political accountability, meaningful change will not occur. The Liberia Reform Agenda proposes to (1) identify and explicate focal themes for sustainable reform; (2) assist in creating a participatory policy process, toward nonpersonality politics; and (3) demonstrate that competent diagnosis can reconnect Liberia’s purpose and existence by effectively removing dysfunctional aspects. But it is aware that the Liberian “political situation remains convoluted,” as the political opposition is fragmented and civil society weak. It is therefore a framework to identify and remedy the fundamental impediments to sustainable reform. The basic goal of the reform program is to undermine and eventually terminate the profitability of disorder and dysfunction embedded in Liberian governance. Specific goals include support to transitional justice – including a “neutral” program of reintegration of ex-combatants – to create a demand for

Reconstruct governance to rouse Liberia 209 good governance. It extends to stimulating and sustaining political debate to increase public sector effectiveness to adopt external assistance with a catalytic role, not to sustain a dependency syndrome. Other goals are to create and sustain the popular will in Liberia to establish the constitutional, legal, and bureaucratic order that fundamental reform requires. The Liberia Reform Agenda’s aim is to restore Liberian eligibility for development assistance by improving the equality of access to opportunities, noting that neither the Bretton Wood institutions nor major bilateral donor governments included Liberia’s capital needs in estimating the cost of poverty reduction strategy processes. Its goals include attaining Liberian eligibility to access new resources as may be available under the African Growth and Opportunity Act, the US Millennium Challenge Account, and the UK-proposed International Financial Facility. Until Liberia reintegrates itself into the community of nations, West Africa will remain unstable. The interrelated goals of reform are to build capacity and facilitate national ownership of a reform that adapts experiences from other failed and transition countries to Liberian realities, fully participated in by all stakeholders, national and international. A competent participatory process, supported by external assistance, could enable even a weak civil society to evolve and adopt practices to improve governance, for we recall Albert Einstein’s observation that “[t]he world is a dangerous place. Not because of the people who are evil; but because of the people who don’t do anything about it.” The Liberia Reform Agenda reflects introspection and is based on a needs assessment of the program needed to begin Liberia on its road to honoring its promise. Program assumptions Liberia’s weak policy analysis capacity and dysfunctional governance structure constrain and inhibit identifying and selecting strategies to democratize governance. But growing policy formulation and analytic capacity is the sine qua non for sustainable development.30 Consequently, donors will collaborate with nationals to minimize impediments in undertaking reform. In short, the confluence of domestic and external developments opens Liberian politics to visible and competent civil society participation in public policy formulation and management. National developers experienced with the knotty policy environment can navigate the labyrinthine, zero-sum game that is Liberian politics, ensuring that the Liberia Reform Agenda will neither be destroyed nor co-opted. Liberians would appreciate reliable, objective independent assessments of their conditions, in which they participated, to restore Liberia’s Vision and her reentry into respectability, appreciating enormous countervailing powers of current beneficiaries. Since the policy process is contextual, the efficacy of external technical assistance and advice is limited; the Liberia Reform Agenda is to evolve processes to weigh critically the validity of advice such as the World Bank’s conclusion that “contrary to popular opinion, ethnic tensions and ancient political feuds are

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rarely the primary cause of civil wars. Instead economic forces such as entrenched poverty and heavy dependence on natural resource exports are usually to blame.” Why is diamond-rich Botswana at peace and Burundi and Rwanda, with no known minerals, consistently at war? What about Somalia? Poor quality or unavailable data constrain Liberian policymakers whose policy analytic, formulation, and development management capacity is inadequate. Liberia’s numerous weak political parties are preoccupied with the presidency, inattentive to a program that would prevent Liberia from returning to politics as usual. However, the need for national program ownership is paramount, for a change imposed is a change opposed. Liberian governance needs to be changed, not exchanged. Past, externally induced attempts never sustainably improved governance in Liberia. Apart from the significance of terminating the root causes of Liberia’s growing role in subregional instability, the exercise is intended to reintegrate Liberia into West Africa. The Liberia Reform Agenda does not rely on what Ahmed Sekou Toure described as syndicat de chefs d’etat to assist its pursuit. But to succeed, the Liberia Reform Agenda must be fully developed during the transition and presented to the elected government and donors, and become a compact among them. Program justification A reform program designed under transitional arrangements conforms to searching for a just solution under a “veil of ignorance,” borrowing John Rawls’ phrase. People are more likely to negotiate just outcomes when they do not know what role they will play in the new order. A reform plan developed and negotiated before the new government is elected is more likely to be a just one. On the other hand, a reform plan negotiated with an elected government is more likely to perpetuate the government’s own interests to the detriment of others. Moreover, the existence of a well-publicized consensus document – with which government actors themselves agreed with before the election – will be a focal point of popular and acceptable donor pressure for implementation. Society must take care, however, to keep the agenda participatory but independent of the transitional governance arrangements, as the government could turn it into a justification for an indefinite transitional arrangement or a return to the incestuous relationships among institutions that prevented each from performing its functions independently and efficiently. Program methodology The methodology reflects significant knowledge of Liberian culture, history, economics, institutions, and politics in their relevant contexts and sociological perspectives. Its phases shall reflect familiarity with classical reform methodology and approaches, especially the extremely difficult tasks of equitably reconciling contending claims by members of groups long divided by public policy. It reflects critical knowledge of UN, Bretton Wood, and EU approaches to governance reform.

Reconstruct governance to rouse Liberia 211 The methodology is suited to counter opposition from special interest groups. The choice of methods is based on an assessment of the limited capacity of civil society and community-based organizations to contribute to improving governance. Program design, explication, and implementation would be participatory; participants would include registered political parties, civil society organizations, traditional leaders, women’s groups, warring parties, and national and foreign stakeholders. Notable opinion leaders would be invited to participate in designing, vetting, and validating the Liberia Reform Agenda through conferences, workshops, independent as well as the public media, especially radio, and special arrangements to develop measures to empower the 85 percent of Liberians who are illiterate despite the government’s declaration that education is pivotal to its policy and 1841, 1869, 1937 declaration that primary education is compulsory. Excluding the majority from participation would continue to stymie democratization. Donors will participate in the Liberia Reform Agenda design and implementation. The selection of themes to focus timed, governance reconstruction recognizes the interdependence31 of program components in the Vision. Program components would be categorized to identify the timeframe for implementation: immediately, in the medium–term, and in the long run. Program strategy The unsuccessful reform efforts teach an important lesson – a change imposed is a change opposed; that Liberian governance must be changed, not exchanged. The Liberia Reform Agenda’s strategy therefore revolves around civic education using means and channels of communication to which illiterate Liberians can relate. Experts involved in process design and agenda explication shall incorporate best practices from comparable jurisdictions, maintaining realism. Program outputs and impact The components of the Liberia Reform Agenda, to achieve the 1847 National Vision, are: (1) efforts to create a governance philosophy that is opposed to disorder and consistent with systematic processes; (2) an outline of measures to enshrine a participatory approach in the Liberian governance process; and (3) processes to implement sustainably a phased Action Program. The Liberia Reform Agenda’s ten themes or programs are as follows: (1) constitutional, legal, and judicial reform to reduce transcending constraints to democratic governance; (2) a program for human and public safety reform; (3) institutional reform; (4) public sector reform to create and/or streamline institutions to improve public sector performance; (5) measures to prioritize poverty-reducing growth, including prioritizing investment in education, health, and sanitation (with an emphasis on HIV/AIDS); (6) statistics: create capacity to regularly and reliably generate demographic, socioeconomic, and other data needed for policy formulation, monitoring, and evaluation;32 (7) macroeconomic reform, to build capacity in fiscal and monetary

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policy development, management, and evaluation, including simplifying the tax structure, administration, and equity; ensure price stability; rationalize expenditures, prioritizing the social service; and restore access to external assistance, obtain debt relief, promote regional integration, and improve financial services sector management and regulation; (8) reform land tenure to transform rural land into financial assets; (9) a reconstruction program of Liberia’s physical and social capital; and (10) a decentralization of governance programs to enhance participation. As important as the issues enumerated earlier are, the focus of the Liberia Reform Agenda shall be to undermine and eventually terminate the profitability of disorder embedded in the culture and the dysfunctional system it created and has maintained. Postelections activities would include building legislative capacity, for example, to understand the budget and appreciate its processes, and working toward installing coequality in the branches of government as well as conduct workshops to distinguish legislative, executive, and judicial functions. Program cost, duration, and sustainability A comprehensive reform program will be nominally costly, but the returns to stability that reduce the recurring humanitarian crises will be higher. Readers uncertain of the prospects of the program’s success may want to compare the costs of the program to the costs of doing nothing. Collaborative relationships among public sector agencies, between them and civil society organizations, as well as effective cooperation between Liberia and the international community following the reintegration of Liberia as a responsible member, will justify and sustain the program. Economic recovery that is biased in favor of the poor, will sustainably build a democratic culture. When all stakeholders participate in program design, external resource flows will not have to await policy planning by the elected government. Peace-building must focus on nation-building – the reconciliation and unification of Liberian society. It requires creating and maintaining an environment conducive to sustainable human development by equalizing access to opportunities through participation and the sharing of the burdens and benefits therefrom. The ICGL’s mandate includes assisting Liberia to adopt policies that establish the rule of law and improve governance to stimulate poverty-reducing economic growth. The General Assembly in Resolution A/46/746 of December 17, 1991 affirmed that Liberia, “a country at the cross roads,” needs deliberate assistance to prevent exposing the expensive investment in peace in Sierra Leone, the Mano River Union, and Cote d’Ivoire to further degradation.33 There are inherent weaknesses in national capacity for policy making, planning and governance, as well as private and public institutional bottlenecks. Besides the shortage of qualified human resources, the productivity of those . . . available is constrained by inadequate incentives, lack of logistics and a working environment characterized by an overly bureaucratic governmental structure, ethnic tensions, political hostility, corruption and mistrust.34

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Deadly conflicts founded Liberia and continue to drive its politics Unlike the majority of African states that achieved political independence in the last half of the twentieth century, Liberia attained political independence nearly 160 years ago. Like some of those states, deadly conflicts founded Liberia; Liberia’s deadly conflicts responded to a ruling minority’s machinations to acquire and retain power. In opposition, the majority population took up arms to prevent an alien minority from institutionalizing discrimination and retaining exclusive political power to achieve self-determination.35 But nationalism did not drive Liberian independence, and the alien minority that ruled was also black. Liberia’s deadly conflicts secured regime security as it betrayed its promise.36 The ruling minority presumed Liberia “an outpost of western civilization” and excluded the black majority from participation in political decision-making.37 But all elements of the population were black in the nineteenth-century world that believed that blacks had no rights that the “white can respect.”38 The alien minority not only expropriated the privileges that society denied them in America, but also transported the horrific practices that they had endured in America.39 Under these circumstances, the United States neglected the colony and the republic, even when it declared war on Germany, its most important trading partner, during the First and Second World Wars; states excluded Liberia’s needs from consideration at Versailles and the US Treasury rejected its application for a Liberty Loan in 1916. Summarily dispossessing the majority of land rights is the genesis of alien minority rule and deadly conflicts in Liberia.40 US Navy Captain Robert Ford Stockton, displaying his pistol and threatening to shoot any chief leaving the gathering without signing the Dukor Contract, characterizes the “negotiation” of the Dukor Contract of December 15, 1822. Elijah Johnson’s boast that generations of Liberians, irrespective of ancestry, were expected to recite with pride the credibility of Stockton’s threat: “Having sold your land and accepted payment, you must accept the consequences or I will do unto you as I did to Old King Peter [behead] when I last visited the Coast.”41 Whether the Liberian government’s resort to deadly violence to preserve minority rule is “black colonialism,” as some have argued42 or not,43 it sustained Liberia’s dysfunctional governance structure and institutions. This author considers the fact that Liberian rulers were also black and their intentions were noble the basis for Uche’s refusal to characterize the Liberian experience as colonialism. Nevertheless, throughout Liberian history, deadly conflicts recurred repeatedly – between settlers and natives, between settlements,44 and among native tribes. Between the Dey versus Settler wars (1822–23 and 1937), there were nearly 100 deadly conflicts, some of which third parties instigated.45 Violence to preserve regime security not only caused the death of Presidents Edward J. Roye (1871), William R. Tolbert (1980), and Samuel K. Doe (1990), the threat of it forced President William D. Coleman (1896–1900) to resign. During his reign, President Edwin J. Barclay (1930–43) “discovered coup plots” and brutalized its accused

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ringleaders. In 1955, William V.S. Tubman (1944–71) accused David Coleman and others of treason. His security forces killed Coleman, his son, and many others.46 Hundreds died in the Rice Riots of 1979 that preceded the 1980 coup. Incidents of political violence during Doe’s reign (1980–90) included the Nimba Raid and the regular “discovery” of plots to overthrow Doe, which then led to summary executions, including that of his first deputy. The 1985 Quoiwonkpa episode was perhaps the most significant. After Roye’s death, Roberts’ political party, dominated by light-skinned blacks, briefly reacquired power unconstitutionally after they accused Roye of “infamous crimes” that under the Constitution of 1847 should have initiated an impeachment process against Roye. Instead, the “leading citizens of Monrovia” – lightcomplexioned settlers – chose to “depose Roye,” contending that the impeachment process originating in the House of Representatives and followed by a trial in the Senate sitting as a court presided over by the Chief Justice, would “be too long.”47 Roberts not only endorsed this illegal process, he was its primary beneficiary for he again became president, thereby further violating the law of succession. We are unaware of the Chief Justice’s reaction; did he oppose the contravention of the constitutional process? This significant violation of the Constitution began the political class’ unwillingness to respect the rule of law. When the True Wig Party (TWP) reclaimed political power, it adopted the Open Door Policy as the instrument to not only dislodge the former ruling elites and terminate political competition, it also initiated the process of killing a ruling party official after losing power, an experience that was repeated each time the four ruling political parties lost power. These practices conform to those that the American Colonization Society employed, including governing Liberia when its acquisition of a national charter terminated its authority to do so. Under the ACS, the constitution proclaimed ACS agents as the head of government, the head of the Legislative Council, and the Chief Justice. The governors of the Commonwealth inherited these powers and although the republican constitution created three, coequal branches of government, politics as usual ignored the change. The American colonization society-originated dysfunctional governance Liberia’s founding peculiarities that established the dysfunctional governance structure include its founding by a nongovernmental organization (NGO) and the mischaracterization of the racism that underlay it as philanthropy. American religious leaders advocated colonization to resettle the feared and growing population of emancipated blacks. In 1792, Jonathan Edwards lamented that American whites “will infallibly be a mongrel breed” unless blacks “quit the country.”48 Edwards’ conscience was assuaged by his belief that expulsion would initiate a process by which whites, guided by Providence, would in one way or another [compensate] the Negroes for the injury they have done them . . . by taking them into affinity with themselves, giving them their

Reconstruct governance to rouse Liberia 215 own sons and daughters in marriage and making them and their posterity and all their honours, and by raising their colour to a partial whiteness, whereby a part at least of that mark which brings on them so much contempt will be wiped off.49 In Puritan America, the religious view attracted many important personalities in America to “disengaged” or informal colonization. Patrick Henry, Henry Clay, Daniel Webster, and relations of Presidents George Washington and James Buchanan joined the bandwagon. White America had empathy for the barbarian souls in its charge even if an integrated heaven seemed inconceivable. This disposition established Christianization of the natives as a principal ACS goal, subsequently undermined the doctrine of separation of church and state,50 and contributed to creating incestuous relationships among Liberian political and religious organizations. Reflecting the religious underpinning of its foundation, ACS agents and Liberian politicians tended to be church leaders as well. Incestuous relationships then condemned individualism as predestinating the colonists to destruction and adopted formalism and conformity as an instrument of disorder. The founding ACS goals doomed possibility of Liberia being a noble experiment in Negro self-government. Though a goal was to alleviate the “pitiable” lot of the free blacks, they did not see the causes that made them pitiable as unacceptable per se. Edwards implied that slavery was unjust, but did not advocate that states abolish it. He preached separation of the races, illogically seeing colonization as the step to “whiter” blacks. The ACS presumed that whiteness was a condition indispensable to improving intelligence and respectability. The settlers accepted the view that darker skin color correlated with inferiority, for in America, consanguinity had conferred privilege: “house niggers” – the lighter illegitimate offspring of masters – were domestic servants, which was less onerous than working in cotton or sugarcane fields. In the Edwards scenario, lighter descendants were entitled to privilege and power. This group inherited the ACS’s powers and the privileges when Liberia became independent. Variants of this view inspired the 1847 Constitution. Roye was dark and, unlike most settlers, university educated; as a wealthy businessman, he formed the True Wig Party (TWP). In these facts lies an incongruity that helps explain the dysfunctional governance structure that the TWP, in power for the next 104 years (until 1980), perfected. What logic explains the dedication of a party that a successful, local businessman founded to institutionalize discrimination against domestic entrepreneurship, as embodied in the Open Door Policy? Under the TWP, politics became the profession of choice for it was more than a political instrument to evict members of Roberts’ Independence Party who controlled the economy. The TWP used “franchise” payments to finance patronage. Patronage then undermined the independence of elected officials and judges. With employment by concessionaires whose enclave sector dominated the gross domestic product also controlled by the same hierarchy of patrons, the system became more structurally defective; the public sector became incompatible with

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a meritorious civil service. Accordingly, the TWP granted Caucasian businesses concessions that tied them to political patrons. Threats of deportation coerced loyalty since whites were ineligible for citizenship. When politics became the profession of choice, the “take off ” that Liberia would have experienced as a result of output growth between 1830 and 1850 due to family farm outputs and vibrant trade in wild produce atrophied. During that period, perhaps up to 40 Liberian-built ships carried wild rubber, molasses, coffee, palm kernel,51 camp wood (dye), and other primary commodities to Europe. A number of Liberian-owned businesses achieved, in twenty-first-century prices, some US$50 to $100 million annual turnovers.52 But under the TWP, Liberia failed to invest in capacity development. With resources mismanaged, the government did not invest in social services and infrastructure. Liberian agriculture failed to improve productivity and lost its competitiveness. Liberia did not diversify trade, and the death of commerce and the failure of engineering stunted growth. Thus, for example, years after Liberia established its first rubber plantation in 1909, the country has no capacity to develop or adapt rubber trees to its soil. In a country where subsistence agriculture now accounts for more than 70 percent of output, education never prioritized training to collect and analyze meteorological data.53 Unjustifiable tax waivers and other benefits the Open Directory Project granted “investors” uniformly failed until Firestone.54 When the Open Directory Project succeeded, the resulting enclave output growth failed to link economic sectors or to create demand for sociopolitical reform.55 When politics became the profession of choice, the unserviced external debt grew rapidly; the first default occurred in repaying the Loan of 1871. Thereafter, Liberia repeatedly contracted a new debt to refinance previously defaulted debt, only to default in repaying the new debt. Public and private creditors placed Liberia under receivership, which threatened Liberian sovereignty in the period to the Second World War.56 The default in repaying Firestone’s Gold Loan was the basis for Hoover’s decision to withhold US recognition of Edwin Barclay when he became president in 1930 following the forced resignation of disgraced President Charles D.B. King and his Vice President. Liberian development was arrested, as the many concessions granted to Firestone were unsuccessful. When Firestone and then the mining companies exploited high-grade iron ore deposits, Liberia grew phenomenally between the mid-1940s and the late 1950s. But Liberia did not link enclave growth to other economic sectors and has been described as growth without development because concessions confer multiple rights to large tracts of land for long, renewable periods. Mining concessions often conferred logging rights as well. Some agricultural and logging concessions acquired rights to minerals even though under Liberian law, land titles explicitly exclude rights to subsoil minerals. Concession agreements create sui generis taxation regimes. With low administrative capacity and patronage, management of differentiated tax regimes proved ineffective. Dysfunctional governance granted vague and broad concessions.57 During the 1974 and 2004 renegotiations of amended versions of the concession agreement first signed in 1924, Firestone who had paid as little as US$60,000 on a net profit

Reconstruct governance to rouse Liberia 217 of US$4,000,000, demanded and received exemption from customs duties and other levies.58 Growth therefore enhanced corruption under the virtual one-party system in power between 1876 and 1980. By 1962 fiscal indiscipline forced Liberia to join the IMF who then implemented a Standby Arrangement. By the late 1970s, companies had depleted iron ore deposits, the oil shocks occurred, and inadequate infrastructure rendered Liberian timber noncompetitive; disinvestment, capital flight, and political instability exacerbated the situation. Despite these problems, Tolbert decided to host the 1979 Organization of Africa Unity Summit. Borrowings to finance the Summit turned Liberia’s budget surplus of about 3 percent of its gross domestic product into a growing deficit. Liberia’s 2002 GDP was 44 percent of its 1979 level and its external debt stock is estimated at US$3 billion.59 The domestic debt is nearly US$1 billion.60 In other words, except for a brief period between the late 1940s and late 1950s, Liberia’s debt burden has always been unsustainable and it continues to threaten sovereignty. Background to administrative centralization The background to administrative centralization is the fraudulent process that declared the Commonwealth of Liberia a unitary republic in 1847, just as it embedded dysfunctional governance in the peculiarities of its founding. In two of the three counties that then made up Liberia, widespread violence prevented many polling sites from opening. As would be repeated in 1986, vote counters committed a huge fraud: although there were 245 votes cast in favor, 45 against, and 300 blank votes or abstentions,61 future Chief Justice Samuel Benedict, President of the Constitutional Convention, declared the result “unanimous” in favor of the adoption of Liberia into a unitary state. Fraud obviated the creation of processes to resolve the inherent conflicts. For reasons not only of resource scarcity but also of public policy, dysfunctional governance failed to educate the population, although Liberian law has stipulated compulsory education since 1841. In 1868–69, the government pronounced education the “pillar” of public policy. In 1937, it passed a law that made “school attendance compulsory.”62 But in 2003, some 85 percent of Liberians were illiterate and 80 were presumed chronically poor. The educational aim of the privileged few was to prepare them to staff government offices, and the curriculum remains irrelevant to a national agenda. The ACS was highhanded and refused to devolve power to its agents in Liberia in the days when steamships took weeks to cross the Atlantic. It approved all decisions affecting the colonists. The 1847 Constitution carried over the ACS’ management philosophy, reflected in the Plan of Union, centralizing political power in Liberia’s president. The ACS repeatedly violated state and federal laws regarding its rights to govern the colony; it ignored restrictions and its acquisition of a State Charter, to replace its original national charter, placed on its legal rights to manage the colony. But in 1839, it approved the colony’s Plan of Union that the Maryland Society had legitimately rejected years earlier. The political class to whom the

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ACS delivered power learned the lesson that laws are to be circumvented for convenience, problems requiring political solutions can be terminated on narrow, legalistic grounds, and legal issues can be politicized, to the benefit of those in power. Hilary Teage, the principal author of the Constitution of 1847, accepted the view that “the black man has no rights that the white man can respect.”63 He believed that African regeneration could only originate outside the continent. His view guided official Liberian policy; it underlies Simpson’s justification for regime security and inspired Tubman’s uneasiness that his “Unification and Integration” could succeed.64 The American Colonization Society neither possessed nor exercised control over colonization societies engaged in the same enterprise on the Grain Coast, whether or not affiliated. Affiliated state societies remained autonomous – as the Maryland Society did in 1836 when it vetoed the Plan of Union. (The Maryland Society approved the Plan of Union on resubmission, although its legal capacity to do so no longer existed.) Ignorance and dire poverty played significant roles in developing dysfunctional governance. The colonists’ “ignorance of governmental affairs and economic helplessness [led] the original settlers [to delegate] to the ACS complete despotic powers over the political community founded by them. That delegation of power . . . [allowed] the discretion of the Board of Managers” the absolute power to do as it felt.65 The ACS was highhanded in its management. Not surprisingly, “[t]he power structure of the American Society for the Colonization of the Free People of Color was transferred to Liberia.”66 The returnees who became political leaders in succession to the whites adopted the ACS’ autocratic power structure. The ACS was impecunious. The establishment status of ACS members notwithstanding, the American government closed its treasury to the ACS. Official assistance included providing vessels to transport blacks and commanding naval officers to intervene in settler/native conflicts against slavers and natives whose decision to oppose occupation was ignorantly equated with collaboration with European slavers. Another discernible cost of the Liberian enterprise borne by the US Treasury was arming settlers in their many wars against the natives. But this author knows of no definitive study that has determined that the settlers’ arms came from private (rogue) or official sources. Nevertheless, the US government recognized that without the ACS, the numerous deadly conflicts between the settlers and the natives would have ended Liberia’s existence as an independent state. The relationship between the US government and the ACS was never clearly defined and was conflicting, a precursor for dysfunctional governance. The ACS agent administrator concurrently served as a US government agent, and the agent’s responsibilities to his two masters were seldom coincident. Initially, the United States maintained an independent agent in Monrovia who managed the affairs of Africans freed when the US Navy intercepted slaving vessels. The United States withdrew its agent because, technically, it was not American colony. The Society agent’s principal function was to distribute lands and provide related

Reconstruct governance to rouse Liberia 219 services to repatriated citizens. By its very nature, the responsibility discriminated against the recaptives. For example, the Society’s agent had to preserve the privileges of the lighter-skinned ruling elites, and the US agent was responsible for the welfare of the darker-skinned recaptives who were not citizens and, although treated better than the indigenes, not deemed equal to settlers. Recaptives were not entitled to the benefits provided to settlers. These circumstances founded Liberia. The settlers entrenched slave culture on the “barbarous” coast. In slavery, the masters determine whether and which privileges a slave would enjoy; slaves, who owed no intrinsic loyalty to masters, determined which laws to respect, accepting that any law that threatened their survival had to be disobeyed.67 Accepting the right of groups to decide which laws they will obey evaporated respect for the rule of law. Independent Liberia was in Africa, but was not African; it was to be an outpost of western civilization. In other words, Liberian politics were autocratic from the beginning and therefore Sawyer is incorrect when he claims that autocracy “emerged.” The system autocracy denied the equality of men before the law ab initio, and sustained nondemocratic governance in Liberia. To “preserve Liberian independence,” governance became increasingly dysfunctional as regime security became crucial. As the Republic proceeded to establish “effective control” over the hinterland, the ruling elite co-opted and incompetently grafted prevalent systems of governance unto republicanism, not to improve governance, but to “preserve independence.” The commitment to preserve political independence created a black colonial state. Between 1847 and 1964, the True Whig Party oligarchy denied more than 90 percent of Liberians the right to citizenship.68 Supreme Court decisions in the 1920s that consistently declared that the executive branch’s exercise of legislative and judicial functions in parts of Liberia were unconstitutional remained ignored. Legislation passed in 1963 “corrected” this anomaly, but, in practice, nothing changed. The system that initially conferred social status based on skin pigmentation later adopted a place of origin and degree of assimilation as the primary eligibility criteria for citizenship. The 1986 Constitution also denies nonblacks the right to citizenship. As the ACS had done, the oligarchy ignorantly managed participation in the political process. A property clause in the 1847 Constitution effectively disenfranchised most natives, and under the elitist, de facto one-party system, the Standard Bearer (the President) came to approve candidates for the bicameral legislature. The system punished criticism of itself, leading Gwendolen Carter to conclude that the True Wig Party, in power from 1876 to 1980, violated a “basic criterion of a democratic system – that it institutionalizes public criticism of governmental measures and provides a method for the peaceful change of leaders and ruling groups.”69 Recurring deadly conflicts constituted the basic impediment to peace and democratic governance. Liberia’s colonial governments to 1847 and the Republic of Liberia at least to 1937 adopted violence as a political instrument. The flawed 1986 process made civil war (1989–2003) inevitable. The termination, not resolution,70 of nearly 100 major deadly conflicts, interspersed with state-sponsored

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political violence, inevitably culminated in the civil war. Liberia is the product of a complex African past incompetently woven into the circumstances that attended the abolition of the transatlantic slave trade that eventually created the burdensome process of forming African states. The manner by which the Commonwealth became a unitary republic mitigated the development of capacity for governance by politicians not constrained by institutions, values, and lessons of experience or tutelage. Independence transformed the colonies into a unitary republic with centralized political power. The fraudulent process forced a unitary system onto a federal dispensation and grafted constitutionalism onto mixtures of chieftaincy and cephalous systems. The independence constitution revoked revenue and expenditure assignments conferred by the Commonwealth Constitution. The inchoate state suppressed internal dissent and expanded patronage. Patronage under co-optation developed preference for political solutions to legal problems, and formalistic legal solutions to political problems. Unlike the Commonwealth Constitution, the independence constitution provided for three separate, coequal branches of government and separation of power. Over time, the executive branch expanded its considerable powers by acquiring those entrusted to the other branches. The president later usurped or accepted powers surrendered by the other branches. The process was gradual until the 1920s. The 1905 salvo was the law the Legislature passed that defined citizens’ entitlement to constitutional protection in terms of whether or not they resided in a county or in the Hinterland.71 The Supreme Court declared the law unconstitutional, but governments since have ignored the ruling. In fact, the Legislature during its 1949–50 session enacted the Aborigines Law, and the Executive Branch issued The Rules and Regulations to Govern Administration of the Interior. A 1964 law divided the three Hinterland provinces into Bong, Lofa, and Nimba Counties and abolished the dual system; the Aborigines Law was only repealed in 1974, but the Interior Regulations, as amended, remains valid. None of Liberia’s national symbols are original or unique. The words inscribed in its seal depict the returnees’ rootlessness: The Love of Liberty Brought Us Here! This symbol confirms the lack of unity in the state and contributes to doubt about the identity of Liberia and Liberians. The unfurled flag is apt to be confused with the Stars and Stripes. Liberia has not only failed to adopt a national currency, but has persistently allowed multiple legal tenders. It first created a central bank in 1999, but declared the US and Liberian dollars joint legal tenders. Liberia copied the American form of democratic governance, but failed to abide by its ethos. Copying symbols failed to sustain the model and kept the society ignorant of itself. Borrowing symbols militated against nationalism and the development of a national identity as well. The copied national symbols failed to keep in focus the environmental, institutional, and structural characteristics that could sustain constitutional governance. Reproduction did not keep the symbols alive nor conform the copy to the original. As such, there is a backlog of injustices in Liberia. It is an aberration that the president that launched wars that killed an estimated 10 percent72 of Liberians was condemned only for his acts in other states.

Reconstruct governance to rouse Liberia 221 The political culture is an amalgam of contradictions built on the preposterous belief that Liberia is an outpost of western civilization. During its century of survival, politics subordinated the individual to the collective.73 Patriotism and nationalism became synonymous with preservation of the regime. African states came to consider themselves as America’s client agent provocateur in the Cold War, and have withheld their gratitude for its substantial financial and diplomatic investment in the independent movement. Liberian leaders look to America, believing they have a “Special Relationship” but America failed to lead international intervention efforts. So Liberia alternately boasts, or laments, that she was never a colony; it could not adapt to changes arising from the interplay of political, economic, and social forces, national or international. Politics were competitive, at least in county jurisdictions, until the True Wig Party established a de facto one-party rule, which Doe’s People’s Redemption Council (PRC) government extended when it overthrew the TWP in 1980. The PRC transformed itself into the National Democratic Party of Liberia (NDPL) and held power until Doe’s death in 1990. In 1997, Charles Taylor’s National Patriotic Front became the National Patriotic Party (NPP) and “won” the Special Elections in 1997.74 The four political parties that evolved Liberia’s political culture, therefore, are Joseph Jenkins Roberts’ Independent Party that became the Republican Party in 1856, the TWP, the PRC that became the NDPL, and the NPP. Each party adopted the same strategies: suppress the opposition and suppress political competition. Every former ruling party withered away after losing power. We are unaware of any study on any of the four parties,75 but we can describe each as elitist and conservative; none recruited members but employed public sector patronage as its carrot and stick. Each adopted patronage as a tool more potent than the first Irish-Catholic mayor of Boston did following his 1887 elections. A Liberian voter that casts his ballot for the “wrong” candidate (although it would never be counted) instantly forfeits privileges, including state financed foreign travels, scholarships for children, high paying, sinecure positions with affiliates of multinationals, state funeral, and burial arrangements, etc. Risked was the privilege to order verbally the incarceration of a less connected person for any reason. Those who enjoyed such privileges could then enhance their social status and mobility within the ruling TWP by releasing the jailed person in response to pleas by his relatives; at the time of such a release, the privileged one may finance the family of the released person. Taylor transformed this patronage web into criminal activities as his government traded arms, drugs, and precious minerals. Ruling parties fund their activities by taxing public sector employees that each year “donates” one month’s salary to the party. Political activities intended to promote the president, such as the public funding of celebrating a president’s birthday that was rotated among counties, which a special taxation of public sector employees and official government contributions funded. Mining and rubber concessions and individual foreign businessmen, mostly Lebanese who often provisioned government agencies and were their landlords, while constitutionally

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barred from citizenship and owning land, “donated” funds to the party. The ruling party’s financial records were “audited” only when the responsible official became or was perceived as a recalcitrant. The state-controlled media regularly restate government policy, including denouncing real or perceived “diabolical, satanic opposition activities.” All “loyal” Liberians are presumed to be members of the ruling party. Ruling party members have one obligation – to conform. Each ruling party therefore has a captive membership. None has had a need to recruit members. This presumptive advantage led all four ruling parties to neglect developing policy formulation or developing management capacity, for governance did not require consultations, since participants were controlled. Under each, county parties submitted aspirants to the Standard Bearer (the President of Liberia) for approval. A “preferred” legislator lost his independence ab initio. The vast patronage umbrella covered cabinet ministers, judges, legislators, constables, and public relations officers. Each ruling party employed public sector patronage as its carrot and stick. At the same time, opposition party members are intimidated and their relations punished for “acts of disloyalty” – guilt by association. An executive committee may have pretended to hold power but power became personalized. The government-controlled press ensured the personalization of political power. As presidents consolidated personal power, they appeared to fuse tribal and “civilized” cultures, for each now symbolized the state. At least since Tubman, each president assumed the most senior positions in secret tribal societies. The three branches of government The Legislature The Legislature lost its coequality gradually, beginning when “leading citizens” conspired to depose Roye. By the 1930s, TWP legislative candidates had to obtain “the green light” from the TWP Standard Bearer. Without the endorsement, the party never presented a candidate to the voters; with it, election was a formality. The process evaporated the coequality of the branches. It also rendered “advice and consent” perfunctory, defining party discipline simply as loyalty to the chieftain. The Executive Presidential power initially responded to European encroachment on Liberian territory. As Liberian public finances seesawed between debt and default, preserving independence required ruling class cohesion, as the president represented the ruling class. When Liberia miraculously remained sovereign, the Chief Executive acquired an aura vis-à-vis the other branches and dwarfed them. Edwin Barclay’s containment of the League of Nations’ attempt to declare Liberia a Mandated Territory and his rejection of the League’s Plan of Action that

Reconstruct governance to rouse Liberia 223 would have reformed hinterland administration may have first created Liberia a pariah state but “preserved independence.” His moratorium on repaying the 1926 Gold Loan to the Finance Corporation of America was pivotal in conferring on Barclay the aura he translated into a tool to suppress dissent. Tubman, given the tenfold increase in public finances in the 1950s over which he exercised unaccountable control, perfected patronage and nonaccountability. Tubman ruthlessly used patronage as both a carrot and stick to enhance his personal power. Beginning with him, all good and perfect gifts came from the president, transforming the republican system into a government of the president, by the president, and for the president. The most important component of presidential power was to appoint officers of the government.76 The Judiciary Liberia’s judicial system is regularly described as corrupt, incompetent, rotten, and controlled by the executive branch, even if few individual jurists have been brilliant and independent.77 Until contrary evidence is available, one may surmise that Roberts appointed Benedict the first Chief Justice to ensure that the Judiciary would not countervail presidential power. Benedict, president of the Constitutional Convention whose “unanimous decision” declared Liberia a unitary, independent republic, is said to have lost to Roberts because of the electorates almost universal indignation against Benedict because of his role in a murder trial at Sinoe in December 1845.78 But this conclusion does not have any evidence. Primarily based on Roberts’s support to the unconstitutional removal of Roye, it does not appear implausible to surmise that Benedict’s appointment reflected a Roberts’s strategy to ensure a weak judiciary and thus Roberts continued to remain effectively Chief Justice. Roberts was the last Governor of the Commonwealth, as well as the Chief Justice and the head of the Legislative Council. The erosion of judicial power vis-à-vis the executive branch accelerated under President Daniel E. Howard who clandestinely removed Associate Justice Thomas McCants Stewart from the Bench pursuant to a Joint Resolution by the Legislature, to reward Amos Witherspoon. The Joint Resolution mechanism is an illegal carry over from the Commonwealth Constitution; it does not allow due process and is repugnant to the 1847 Constitution. In addition to employing the Joint Resolution instrument frequently, Tubman, especially after 1955, cowed members of the establishment he perceived to be wavering as the restive 1960s began. The phenomenal economic growth of the 1940s and early 1950s had ended, leaving public expenditure commitments unfunded. Workers especially on the rubber plantations were restive; the system felt under siege and the “winds of change” threatened the dysfunctional governance system. The establishment redoubled the punishment of critical inquiries, especially by persons once on the inside, to stem the darkening cloud that exposed the fragility of the oligarchy. Former Attorney General Christian Abayomi Cassell, a suspected critic, in a paper invited by the International Commission of Jurists for its first International

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Conference of Jurists in January 1961, observed that “the Judiciary appears to me to be the weakest link in the chain.”79 Perceiving the criticism as the proverbial crack in the enforced solidarity that had sustained the hegemony, the Supreme Court disbarred Cassell but an International Commission of Jurists panel concluded that Cassell’s observation was not contemptuous. The panel noted that the Court abandoned judicial temperament in favor of “violent and flamboyant” language in its condemnation of political behavior. In fact the Court, doing Tubman’s deed, not only punished Cassell but suspended former Vice President Simpson, a prominent lawyer that Cassell had consulted and who believed it unethical to be an amicus curiae, from practicing law for a year. Civil society organizations and other institutions The politically relevant Liberian organizations are normally comprised of the same members. Leaders of nonpolitical institutions or their proxies hold senior political positions in labor unions, traditional secret societies, the Masonic Craft, professional bodies, and charitable organizations, except in ethnic organizations, burial societies, and cooperatives – for work or savings mobilization, for obvious reasons. The Liberian founders of traditional Christian churches were colonistpreachers. Arthur Barclay, an Episcopalian, succeeded in getting the Catholic Church established in Liberia in 1904, the year his presidency began. Tubman was Lay Leader of the Methodists and Tolbert was president of both the Liberian and World Baptist Conventions. Civil society organizations are virtual appendages of governmental institutions. The National Bar Association held its inaugural meeting in senate chambers on January 2, 1905; it held its second meeting in the executive mansion. The National Bar Association does not publish its proceedings and performs no advocacy roles, except to endorse the ruling party’s presidential candidate. The Speaker of the House’s wife led the National Teachers Association for years; it remains weak. Tubman’s Social Secretary organized the labor union federation, and at various times Tubman’s son or the son of his lawyer led the federation. Liberian civil society institutions seldom possess capacity and often are impecunious. Liberians need to develop a unique identity toward a common destiny to promote reconciliation. Liberian history texts denigrate the natives, emphasizing not a philosophy of the return of the natives, but of conquering occupiers. Liberians do not share their calamities; not even the civil war is a calamity common to Liberians. Monrovia did not appreciate it until Doe’s death squad killed an American-Liberian resident of one of an “up river” settlement. Liberia’s culture of misgovernance is rooted in her failure at creation to establish a unique character. The Liberia of our concern The Liberia we seek to reform is not Robert Smith’s (1964) or the Henries’ (1958). We are not beholden to the illusion established by philanthropists that risked lives

Reconstruct governance to rouse Liberia 225 and limbs.80 It is not the peaceful and prosperous Liberia that was developing along a conservative path81 until a semi-illiterate “sergeant’s” coup82 interrupted its progress in 1980. One can best describe the Liberia83 of our concern as an oligarchy, a one-party state,84 whose elitist ruling parties disavow interest in recruiting the masses; in it, corruption virtually is official policy. We are concerned about a Liberia whose elites were a barrier to economic development;85 we wish to reconstruct governance in a Liberia where the mismanagement of available resources persistently hampered development. In that Liberia, official policy limited the availability of adequate resources and when resources became available, policies prevented growth from developing the society.86 In it, the Open Door Policy constrains domestic resource mobilization. Our Liberia is relatively well endowed by nature; an appropriate development philosophy could expand available resources and would have prevented growth without development. Arguably, Liberia’s failure to develop a culture conducive to sustaining the coequality of coordinated government departments and popular participation was more damaging to its stability. As patronage created a web of privileges, hegemony coerced conformity, enthroned corruption, and evaporated the rule of law. Liberia’s failure to build institutions reinforced the culture’s proscription of participation and eventually adopted disorder as a political instrument. But romanticists describe a Liberia that was America’s best African friend,87 a loyal ally in America’s wars, hot and cold.88 The leaders of the illusory Liberia posited a special relationship between it and the United States. At times, America officially declared it “America’s responsibility,”89 but the Liberia of our concern never had a special relationship with an America that neglected it as a colony and as an independent republic.90 Liberia jettisoned its national interests twice, declaring war on its most important trading partner and delivering the partner’s critically important communications facilities to the Allies, but America did not reciprocate its loyalty nor compensate its sacrifices. Without a metropole, its physical infrastructure, compared with her British and French colony neighbors, is undeveloped and starved of social capital. Twice in the 160 years of its political independence – in the 1930s in the aftermath of the Fernando Po Scandal when she foolishly enacted a moratorium on repaying Firestone’s Gold Loan, and in response to Taylor’s adventurism in West Africa. But that Liberia is a founding member of both the League of Nations and the United Nations and is a “country without law.”91 Its Citizens Lack a Common History – Liberians have a differentiated, unreconciled, past. We know little about the economic systems or the peoples who, as early as the fifteenth century, conducted legitimate trade with Portugal. Knowledge of how differentiated pasts move toward a single identity teaches important lessons, but our written history precludes us from that knowledge. A Common Destiny – national identity creates national pride; preservation of national identity constitutes a common destiny. There appears to have been no calamity in Liberian history that all shared. Failure to merge competently the legacies of Liberia’s peculiarities obviates national cohesion and robs Liberia of

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a common destiny. Stunted institutions subverted political values so that it failed to weave the cross currents of its peculiarities and commonality with the newer nations of Africa into building a democratic nation.92

The Comprehensive Peace Agreement The Comprehensive Peace Agreement is the fourteenth peace accord Liberian warring factions have signed since 1980; the parties negotiated it in Accra, Ghana between June 4 and August 17, 2003. The International Contact Group on Liberia, which was moved “by the imperative need to respond to the ardent desire of the people of Liberia for genuine lasting peace, national unity and reconciliation,” brokered the Agreement.93 But might the Agreement merely terminate this phase of a recurring crisis and destine Liberia to another conflict and another peace accord? Bigger crises have followed each failed accord and have been more deadly; the latest conflict, unlike any prior, was regionalized. Detailed analysis of the Agreement or comparison with the previous 13 peace accords is beyond the scope of this chapter. This section outlines the Agreement’s generic and specific limitations toward emphasizing the necessity for early commitment to comprehensive governance reconstruction, the irreducible requirement for resolving Liberia’s endemic crises. Jacques Klein, the retired American general who was the virtual proconsul of Liberia, described the National Transition Government of Liberia as a “coalition of the unwilling”; Klein acknowledged that with the National Transitional Government’s inability to appoint civilian administrators in areas the UN Mission in Liberia declared sufficiently secure demonstrates that its goals are different from those of the United Nations.94 Could reasonable observers predict a different outcome? The factors that predispose the Agreement to failure are inherent in the nature of the arrangements that end civil wars. The model is the opposite of arrangements adopted to end wars between nations. Understandably, participants in conferences to end civil wars are the protagonists. Interventions interrupt hostilities but those intervening, except in unusual circumstances, lack the political will or staying power to enforce the peace. The warring factions that fought the war are, without justification, presumed disposed to living in peace, governed by the competing national interest of peace brokers that inadequately guarantee the terms of agreement. The logic underlying these agreements is questionable. In the Liberian case, the agreements even ignored the history of efforts to resolve recurring deadly conflicts, including the international community’s previous efforts, such as UN General Assembly Resolution A/46/746 of December 17, 1991. Although the UN’s 1991 mandate necessarily prioritized the restoration of security, the coordinator of UN activities in Liberia saw his assignment as “a) [determining] the immediate and basic requirements of the country [to] propose a strategy for their attainment; b) identify[ing] possible obstacles to the development of the Liberian economy and recommend means of overcoming them; and c) adumbrat[ing] medium and long term approaches to development which the country might pursue.”95

Reconstruct governance to rouse Liberia 227 Next to restoring stability, priority was accorded “[t]o reconcile and unify the Liberian society while rebuilding the nation; to create and maintain a conducive environment for sustainable human development; and to facilitate the empowerment of all sections of the population to participate in the affairs of the nation and share the burdens and benefits therefrom.”96 In 1992, the tasks were to begin with an examination of “[t]he issues which should be addressed in the formulation of an overall rehabilitation and reconstruction strategy; provide a framework for the re-settlement and re-integration of displaced persons . . . prepare special terms of reference . . . recommend an organization structure . . . and suggest a schedule . . . .”97 The factors that predispose the Agreement to failure include the mixture of facilitators of subregional governments, permanent members of the UN Security Council, and intergovernmental organizations where the subregional governments have questionable democratic credentials and the industrialized countries have no “strategic interest.” Some leaders reportedly had personal relationships with Taylor, who was rumored to have used his financial assistance to fight elections and a familial, amorous relationship. When one puts these issues in the context of African leadership, despite the New Partnership for Africa’s Development vaunted “Peer Review” mechanism, the desire to strengthen their syndicate, and a national polity remaining rooted to its nineteenth-century mindset creates a problem. Agreement facilitators were moved by the “duty to intervene” in Liberia, first expressed by Jawara in 1990.98 The duty to intervene in 2003 focused on terminating Taylor’s subregional adventurism to arrest subregional instability. In 1990, the duty was to end the killing of nationals of other West African states. The plight of Liberians seemed to be excluded from consideration. Likewise, in 2003, the duty became geopolitical as growing Middle Eastern instability made West Africa an ideal substitute source of oil. Unlike the Middle East, Nigerian and Guinea Bissau deposits were closer to the market; vessels transporting African oil do not have to pass through hazardous waterways.99 The Comprehensive Peace Agreement and its inherent limitations Article XXI of the Agreement established the National Transitional Government of Liberia (with three branches (Article XXIII)). Article XXIV established a legislative branch of a 76-member unicameral National Transitional Legislative Assembly, compared with the bicameral legislature of 100 legislators – 64 Representatives and 26 Senators in 1997. The Agreement rewards each of the three warring parties with twelve representatives, compared with one representative each for the eighteen political parties. The Agreement designates a two-step process to select the Executive Branch Chair. During stage one, delegates except the three warring parties select three candidates; in the second, the three factions select one of the three. Article XXVI and its Annex 4 then allotted fifteen of 21 executive branch positions to the three warring parties and managing

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directorships of 12 of the 22 state-owned enterprises to the three warring fighters. Presumably, the logic of the allotment accepts that around the table were those who had raped and looted; they were being rewarded. The rationale that evolved Annex 4 ignored the warning signs, for during the negotiations, warring parties often colluded to emphasize their perception of the political parties and civil society as marginal to establishing a postconflict government committed to and capable of identifying and resolving the causes of endemic crises.100 The Agreement leaves the judicial branch as provided for in the Constitution unchanged. The National Transitional Government’s tenure expires upon the inauguration, on January 6, 2006, of a president elected in October 2005. The Agreement obligates international supervision of the elections; the elections fill the presidency, vice presidency, and the bicameral legislature. Liberia will not hold local government elections in 2005. By specifying the functions that the international community is to perform toward successful elections, the Agreement differs from the 1986 Constitution, Liberia’s elections law, and the Abuja Accord. Under the Abuja Accord, the 1986 Constitution, and the elections laws, the President appoints members of the (Special) Elections Commission; they do not assign the international community a role. But the Elections Commission, and eventually the government, invited international observers. The Agreement creates a National Electoral Commission with powers to determine, with international assistance, the rules to govern civic education.101 The 1985 elections were conducted under the Elections Law of Liberia. The People’s Redemption Council Government whose Chair was a candidate for the presidency, appointed the members of the Elections Commissions, which had exclusive jurisdictions over the elections; he illegally appointed a Votes Counting Commission that declared him the winner.102 On the other hand, Abuja prescribed the novel proportional representation system under which voters did not vote for individual candidates. Liberia held those elections prior to disarming the warring parties; voter education was not undertaken. The Special Elections Commission was partial in registering political parties and all but deferring the process and decisions to the National Patriotic Party. NPP legislative candidates rode Taylor’s coattail in the election, and the fear of Taylor’s credible threat to resume fighting unless he was elected president dictated the results.103 On elections day in 1997, voters observed the intimidating roles of Nigerian peacekeepers in favor of the NPP. The Agreement provides for an international stabilization force (ISF) to disengage the fighting parties, and assigns the ISF and the National Transitional Government joint responsibility for security. The National Transitional Government has a junior role in this endeavor; the presumption underlying joint security responsibilities appears to ignore Agreement Annex 4 that entrusted defense and justice functions to the warring factions. The convoluted logic also appears in Article XXII, which defines the National Transitional Government’s mandate as (i) “scrupulous implementation” of the Agreement; (ii) implementing the Ceasefire Agreement of June 18, 2003; (iii) overseeing and coordinating

Reconstruct governance to rouse Liberia 229 political and rehabilitation programs enunciated in the Agreement; (iv) promoting reconciliation to ensure the restoration of peace and stability; and (v) contributing to the preparation and conduct of internationally supervised elections in October 2005. The ICGL equates the signing of the Agreement with conflict resolution, not the setting of a long, tedious, and fragile process. To establish durable peace in Liberia, the Agreement created six Commissions: the Contracts and Monopolies Commission (CMC); the Governance Reform Commission (GRC); the Independent National Commission on Human Rights (INCHR); the National Commission for Disarmament, Demobilization, Rehabilitation, and Reintegration (NCDDRR); the National Electoral Commission (NEC); and the Truth and Reconciliation Commission (TRC). To this end and unlike the Constitution, the Agreement restricts the National Transitional Government’s mandate. For example, the Contract and Monopolies Commission is “to oversee activities of a contractual nature undertaken by the [National Transitional Government].” The CMC is an attempt to revoke unaccountable executive power that sustains patronage. Given its character, the National Transitional Government “artfully dodged” its intent by an appointment that stymies administrative and financial reforms.104 Except for the NCDDRR, and reflecting the much lower priorities assigned them, the NEC and the GRC, no other commissions are functional. For example, the National Transitional Government has awarded offshore oil exploration contracts that friends of the Chairman negotiated. After the first of its two-year tenure, neither the National Transitional Government, the ICGL, nor the commissions have focused on fundamental governance reform as the key to durable peace in Liberia. The National Transitional Government is perpetuating the patronage culture,105 appointing cronies and persons likely to exploit their appointments for personal political ambitions or wealth. One way to evaluate the probability that the Agreement will achieve its stated goal – by the imperative need to respond to the ardent desire of the people of Liberia for genuine lasting peace, national unity, and reconciliation – is to look at the TRC. Article XIII in four short paragraphs defines the function of the TRC as (1) a forum to address issues of impunity and an opportunity for victims and perpetrators of human rights violations to share their experiences to evolve a picture of the past to facilitate genuine healing and reconciliation; (2) a way to deal with the root causes of the crises in Liberia; and (3) to recommend measures to rehabilitate victims of rights violations. As with commissions other than the GRC, the appointments involve family ties. The National Transitional Government Chair appointed his brother, a clergyman with significant and relevant experience, as Chair of the TRC in April 2004. That the designated chair has not taken up the appointment raises questions. Will the TRC credibly address amnesty? To contribute to the healing process, the TRC will proclaim amnesty following public examination of the causes of violations by individuals bearing the greatest responsibility for crimes against humanity and war crimes. But senior members of the ruling party have conducted government commissions such as those that investigated tribal uprisings in the nineteenth and

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early twentieth centuries, the Plot that Failed (Wreh) and the Carter Camp and Cowfield massacres. For example, the Brownell Commission appointed by Tolbert to investigate the Rice Riots (1979) lost credibility when senior government officials described the exercise as a waste of resources and an encouragement to lawlessness. Cultural traits also predisposed the Agreement to failure. Two of these are mentioned in the conclusion of this section. Withholding attention from a problem The practice of successive Liberian governments to withdraw attention from a simmering problem forces cooling off by refocusing on other developments. In a Liberia, where formal legalism determines the outcome of most contests, the practice is akin to a defense counsel endlessly filing briefs to delay adjudication. The political culture anticipates declining international community commitment as the Liberian view is that it has no strategic importance. Neglect may reflect in the analysis that Liberia’s crisis is unlikely to be resolved, so neglect saves resources. Liberia may of course not completely withdraw attention from its problems, but limits its actions to those unlikely to change significantly the circumstances. Edwin Barclay employed that strategy in his rejection of the League of Nations’ Plan of Assistance to Liberia. Tubman adopted the same strategy when he created the Special Commission on Government Operations, but controlled the process and deflected pressures to reform by (1) emphasizing the formalities of reform and ignoring its substance and (2) entrusting a trusted member of the “old guard” with the task of masterminding the diversion. With an international community relying on ineffectual but expensive technical assistance and NGOs to build collapsed states, the waiting period may not be long. It will end when funds run out and donors can use a lack of success to justify discontinuing. Liberian antipathy to critical analysis To preserve Liberia’s independence, the political culture sacrificed individualism when it developed antipathy to critical analysis. Liebenow revealed that formalism supplanted substance in Liberian governance;106 Sawyer demonstrated that informal relationships are superior to formal rules.107 To preserve independence, the triple heritage of patronage, impunity, and corruption developed. Antipathy to critical analysis prevents the identification of options, a process that is consistent with loyalty to the patron and protects regime security. Antipathy to criticism preserved Liberian independence but prevented improving the policy process and deteriorated policy content. Antipathy does not appear to have been the necessary result of limited capacity; it was policy. From the foregoing, the Agreement is not particularly suitable to transforming a violent-prone Liberia into a society that is committed to the rule of law. Sadly, the National Transitional Government’s actions have confirmed its lack of commitment to transforming Liberia. The Results-Focused Transition Framework, a short-term reconstruction program, is a wasted opportunity. The Framework is

Reconstruct governance to rouse Liberia 231 a matrix of activities, processes, and outcomes. In response to it, donors attended a Reconstruction Conference in early 2004 and pledged US$520 million. Redemption of pledges has not been timely; in fact, the proconsul and donors have fears. The Framework is arguably the first program in Liberian history that attempts to design a governance program that could establish justice, ensure domestic peace, and promote the general welfare. Many avoidable shortcomings made it a wasted opportunity. Its expressed and implied assumptions ignore the operational environment. For example, the National Transitional Government is committed to democratize governance, decentralize political power, and promote transparency and accountability. The Framework makes highly questionable assumptions about administrative capacity and domestic revenues prospects. For example, the creation of a UN trust fund to defray accumulated civil servant salaries without creating conditions to improve productivity. The Framework relies, to an unhealthy extent, on external technical advice. Without obvious commitment to capacity building, it fails to espouse a discernible plan to recruit highly skilled, experienced expatriate Liberians. The Framework appears not to anticipate the fragility of transition from conflict to medium/longterm, postconflict reconstruction. It seeks to improve the process and operational efficiency of existing structures without questioning the soundness of the superstructure. It ignores the root and catalytic causes of dysfunctional governance that collapsed the state. The Framework explicates themes and six-monthly projected outcomes for disarmament, demobilization, rehabilitation, and reintegration and governance and blithely state goals as “re-building democratic communities.” Were communities ever “democratic”? The Framework’s measures to improve local government performance ignore a basic fact: the Constitution effectively outlaws local governance. Improving the capacity of an entity whose legal existence is doubtful may prove a useless exercise. Improving central government performance at the local level would not improve participation; it would simply make patronage, and therefore impunity, more effective. The Framework fails to incorporate the potentials of early installing efforts toward a demonstrable commitment to substantively reform, though reality dictates that Liberia implements reform later. But if the transition does not commit to reform, explicate and prioritize its themes, the president elected in 2005 will assume unaccountable power conferred by law and custom. The Framework ignores the incestuous relationships among governmental, political, and civil society organizations; while desirable to improve the capacity of all, failure to ensure arms-length relation among them is doomed. Further, though it notes that the institutions lack capacity, it does not seem to take into account the implications of severely limited capacity when stipulating their roles in reconstruction. The Framework appears to ignore that the current structures and capacity will continue the export of instability. No effort therefore should be spared to avoid the error of equating Taylor’s departure with Liberia’s successful reconnection with its Vision. The existence of a substantial backlog of injustice rejects measures and approaches that cavalierly dispose interlocking questions. With the failed state now generally described as a “United Nations Protectorate,”108 perhaps

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the first impediment in transforming Liberia might be that the international community is not disposed to nation-building. The short-term approach to a longterm problem is a major hurdle, as would be its proclivity to accept a successor government to one universally condemned as necessarily better. These failures weaken the prospects to establish respect for the rule of law as the international community accepts the practices that collapsed the state. While the Agreement is gradually restoring security to Liberia, it seems designed to fail after the United Nations departs. The governmental structure lacks the capacity to evolve consensus among the parties and may crumble from the weight of competitive patronage hierarchies.

Conclusion Commitment to fundamental governance reform is the only remedial action to establish justice, ensure domestic peace, and promote the general welfare. There is a general agreement among Liberians about the urgency of initiating reform, and of its general contours. Twelve senior Liberian participating in a meeting of Liberians from the Diaspora that the Carter Center convened and the Woodrow Wilson Center hosted in Washington, DC, on November 5, 2003 to discuss how to contribute best to Liberian reform. Amos Sawyer, one of the twelve, expresses the representative view: Liberia faces deep-rooted challenges which cannot be swept under the rug. The storms had been gathering for decades. Our political system seems entrapped in a cyclical pattern of zero-sum politics – violent breakdowns – acrimonious elections – . . . we need . . . serious diagnostic assessments to find out what is inherently wrong with our political arrangement . . . Why . . . does political contestation take on such high-stakes character, requiring a fight to the bitter end? . . . There are profound systemic flaws that must be examined and corrected. Far from following a generic blueprint for conflict resolution and post-conflict peace-building in which elections are considered central, we are challenged to examine our political order more deeply and let our diagnoses suggest approaches to finding remedies to entrenched governance challenges; . . . we [need] . . . informed consultative discourses held at all levels of society and involving all segments of our people, and a properly prepared, well-organized national conference. Out of these should come a well thought-out agenda for reform. A reform agenda constructed through such a constitutive process becomes an integral part of the transition process and takes on the character of a national covenant. 109 We present the Liberia Reform Agenda as the essential framework; we developed the Liberia Reform Agenda to begin Liberia on the road to honor its promise. Without fundamentally reforming governance, Liberia will continue contributing to subregional fragility. The Liberia Reform Agenda addresses many of the interrelated programs that created and sustained the malaise in Liberia. It seeks to evolve

Reconstruct governance to rouse Liberia 233 a development strategy likely to succeed where others failed. Painful needs assessment and extensive consultations inform the Liberia Reform Agenda. Moreover, groups have consistently exploited the causes of the Liberian crises that it seeks to remedy. These causes have increased subregional instability. In a sense, financing this program benefits the subregion as a whole. Its timing is auspicious, for it assures sustainability of activities the United Nations Mission in Liberia and others have undertaken. The International Contact Group on Liberia and the World Bank plan to commission the Liberia Reform Agenda is not only an appreciation of the potentially auspicious developments, but it also presents the only possibility to rescue Liberia. The effective design and efficient implementation of the Liberia Reform Agenda would induce fundamental governance reform in Liberia, establish the rule of law, and create fiscal discipline based on market supremacy. Until Liberia embarks on establishing justice, ensuring domestic peace, and promoting the general welfare, it will not only remain unstable, it will export instability. The exercise may appear as Idealism in the Face of a Troubled Reality. Liberia will not sustain peace without significant, intrusive reform. The Liberia Reform Agenda seeks to prevent this transition from becoming an interregnum to more deadly conflicts. Its logic is that strategic linkages exist among economic, political, and social issues, especially in complex conflict situations.

Appendix Program to Reconstruct Governance to Guarantee Durable Peace Chart 1: Summary of Programs to Evolve Liberia Governance Reform Agenda Activities

Objectives

Key Strategies and Actions

Performance Indicators

Program to reform governance

To evolve measures to limit transcending impediments to participatory governance causing near perpetual conflict that stymie establishment of justice, ensuring domestic peace, and promoting the general welfare Terminate exclusion and promote participation Restore political power to counties

Commission background papers and expert reports to inform why Liberia failed: a) to establish justice, b) to ensure domestic peace, and c) to promote the general welfare – expert reports to categorize reform: now, short-run, medium-term and long-run Synthesize background papers and expert reports to guide explication of reform agenda

Early donor participation and in principle commitment Thematic programs prepared Program of vetting and validation agreed Specialized roundtables held regularly and timely Mechanisms to communicate with illiterate population completed Programs of public education designed General validation (Chart 1 continued)

Chart 1 Continued Activities

Objectives

Key Strategies and Actions

Performance Indicators

and municipalities De-marginalize civil society Undermine impunity and patronage Create respect for the rule of law Institutionalize sanctions against corruption Delimit presidential power Improve data availability and quality to improve policy formulation and monitoring and evaluation Design macroeconomic policy to promote pro-poor growth and improve competitiveness Rationalize the public services sector Prioritize investment in social services sector, agriculture, and (rural) infrastructure Prioritize private sector development and promote Liberian entrepreneurs Create employment opportunities Regularize census taking and specialized surveys

Propose changes to restore Legislature’s oversight and build capacity for effective checks and balance Draft/repeal laws to expunge bottlenecks Amalgamate/ rationalize public sector institutions and structures Streamline public sector institutions Design autonomous local governance structure Determine local government capacity needs and project own revenue potentials Create autonomous Central Statistics Organization Design fiscal policy to install discipline and monetary policy to ensure price stability Propose measures to re-enter the second monetary zone process Propose measures to improve the budget process and rationalize expenditures Design measures toward efficient resource mobilization Establish benchmarks and milestones Draft operational manuals

conference of national stakeholders and donors held Documentation to the National Sovereign Conference submitted

Chart 1 Continued Activities

Program to reform military and security sector

Objectives

Combat impunity and increase effective sanctions to guarantee individual safety and public security Sanction human rights abuse Rationalize and restructure military, para-military and all security agencies Define optimal size of military, paramilitary, and security sectors Design sustainable capacity building arrangements Restructure sector and mandate Implement “neutral” disarmament, demobilization, and reintegration, rehabilitation

Program Rationalize to define presidential constitutional, power legal and vis-à-vis the judicial Legislature and reform Judiciary Decentralize governance to enhance

Key Strategies and Actions Cost public sector re-equipment Design validating mechanisms Catalog existing military, paramilitary, and security organizations Define the sector’s functions to include disaster management Introduce civic education into the curriculum Draft laws to prohibit soldiers performing certain services to superiors, civilian and military Design program to restructure AFL and security sector Propose a selfconstruction/low cost housing program to assist reintegration Design mechanisms to inculcate civic responsibility Define training needs and design career development program Determine optimal size and cost implications Muster personnel and weapons Prepare terms of reference toward a new Constitution and to conform statutes and administrative regulations Design a program to improve legislative

Performance Indicators

Independent expert to review Sovereign National Conference Approval

Roundtable acceptance of a cost-effective program to await validation Task forces by sectors and themes and mechanisms to regularly vet outputs (Chart 1 continued)

Chart 1 Continued Activities

Program to reform the public sector

Objectives

Key Strategies and Actions

participation Improve public sector operational efficiency Assign certain tax and expenditure functions to local governments Rationalize and streamline public sector institutions Accumulate social capital

oversight capacity Propose a program to review statutes and regulations to repeal laws concentrating power in the president Propose information technology and other programs to improve judicial performance Design program to improve legislative and judicial conditions of service Improve capacity for efficiency, coordination, accountability, and transparency Propose program to grow the rule of law to sustain checks and balances and to undermine the impunity that nurtures corruption Design a program to streamline cabinet institutions and their purviews, given new local governance arrangements Strengthen autonomy and powers of certain commissions – e.g., Audit, Human Rights and Elections Reform statues and administrative regulations to limit the president’s unaccountable power Focusing on selected ministries, agencies, and departments, define functions

Rationalize public sector, including privatization (not sale of Liberian

Performance Indicators established and functioning

Laws drafted to define unique functions of ministries, agencies,

Chart 1 Continued Activities

Program to design appropriate macroeconomic policy

Objectives

Key Strategies and Actions

Performance Indicators

assets to foreigners) and/or liquidation of state owned entreprises Delineate agency functions; remove overlaps and conflicts Design civil service reform to improve capacity and professionalism To improve fiscal discipline To rationalize expenditures in favor of social sectors Develop monetary policy for price stability and end multiple legal tender regime Improve financial services sector supervision toward subregional integration Create employment to reduce urban and rural poverty growth rates Design policies and structures to prioritize agriculture, education, health, and physical infrastructures Prepare debt (external and domestic) profiles and programs for sustainability Improve prospects for foreign direct investment

and compare roles with other West African states Design programs to recruit expatriate Nationals Prepare personnel and career development plans

and departments Drafts compared to other West African countries

Identify policy elements to promote fast and balanced commitment poverty reducing growth Re-establish eligibility for development assistance Prepare a program to obtain eligibility for debt relief and special drawing rights and interest accumulation in the IMF Review tax structures and rates to enhance buoyancy and elasticity with equity Rationalize sui generis with general tax laws and simplify tax structure Asses needs then design measures to build policy analytic and development management capacity Design rolling training program pegged to career development plan and manpower needs Design program of incentives

Early donor participation and commitment

(Chart 1 continued)

Chart 1 Continued Activities

Program to reform and improve statistics Program to reform land tenure

Program to decentralize political power

Objectives

Improve data availability and reliability to improve policy content, targeting and ME To improve land rights of rural power To improve agricultural productivity To terminate speculation in land by government officials Reduce inequality arising from unearned wealth Improve participation Establish a national identity Create alternative power bases

Key Strategies and Actions Prepare sectoral investment programs, prioritizing social services and infrastructure Create independent CSO; define mandates and cost

Performance Indicators

Early donor participation and commitment

Design measures to Conformity with create land as an best practices in asset in rural areas transition countries Design an investment program to improve agricultural output and induce nonfarming activities in rural areas Complete land capability map Create a geographical information system Study Uganda and Consistency with Ghana local desire to undermine government transcending ills of structures to existing governance recommend a philosophy structure Design a local government structure Propose a pilot implementation program Demarcate counties, districts, statutory districts, etc. Propose criteria for obtaining each such designation in the future Conform structure to new Constitution Propose self-financing measures Design program to build requisite capacity

Reconstruct governance to rouse Liberia 239 Chart 1 Continued Activities

Objectives

Key Strategies and Actions

Performance Indicators

Program to fight HIV/AIDS

To determine prevalence and evolve strategy to combat the epidemic

Program to restore and conserve the environment

Safeguard future generations Protect the environment

Program to re-equip government

Gradually restore facilities and equipment, beginning with power and piped water, office equipment, furniture, and supplies Restore public sector capacity to perform Provide logistics and safeguard against abuse Create conditions for pride of service

While respecting Conform to best privacy rights, practices conduct surveys to determine prevalence Propose campaigns (rural and urban) to create awareness Negotiate for cheaper remedies Prohibit exploitation on Regional context all logging connections and conformity for a defined period with best practices Design a program for reforestation and mining land reclamation Design financing program Enforce/reintroduce restrictions on round logs export Survey public Donor participation utilities – electricity, and commitment water and telecommunications Survey health and educational facilities Design social services distribution criteria Design and cost program to recruit expatriate nationals

Notes 1 Lowenkopf 1995: X. 2 King 1993: 1. 3 The UN Secretary-General, The Rule of Law and Transitional Justice in Conflict and PostConflict Societies (August 2, 2004).

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4 This and other shortcomings of the current constitution are contained in work in progress by the Public International Law and Policy Group, for the Center for Development, Democracy and Reconstruction, the Liberian nongovernmental organization spearheading the program described in this chapter. 5 Lawyers’ Committee for Human Rights 1991. 6 Taylor gave Ahmed Khalfan Ghailani, the Tanzanian accused of masterminding the bombing of the American Embassies in Nairobi and Dar Es Salaam and other Al Qaeda atrocities, protection; they lived in Liberia before and after 9/11. See Bryan Bender, “Liberia’s Taylor gave aid to Qaeda, UN probe finds,” The Boston Globe (August 4, 2004). 7 State members are Ghana, Nigeria, Morocco, the United States, the United Kingdom, and France; multilateral organization members are ECOWAS, the African Union, the European Union, and the United Nations. 8 Liberians United for Reconciliation and Democracy and Movement for Democracy in Liberia are the names of the factions that signed the Abuja Accord (1996) mutated assumed following the 1997 elections. How sad these misnomers became! 9 The remnants of Charles Taylor’s “criminal gang” were entrusted with national defense and individual safety, for example. See Annex 4 to the Agreement, “Allocation of Cabinet Positions, Public Corporations and Autonomous Agencies/Commissions under the [National Transitional Government].” 10 Kaplan’s (1994). 11 Berg’s BBBB, p. 213. 12 In a letter to the National Transitional Government Chairman dated April 28, 2004, Amos Sawyer rejected his appointment to the Governance Reform Commission because “the mandate of the commission as contained in the Comprehensive Peace Agreement, . . . the reform tasks that are required loom larger than those that can be achieved within the framework in which the commission is expected to operate . . . the magnitude of the tasks assigned and the lack of corresponding authority to get them done. . . . First, unless the reach of governance reforms to be undertaken extends to a review of Liberia’s constitutional paradigm and the institutional arrangements it has produced, reforms will not be able to yield outcomes that can sufficiently address our foundational governance dilemmas. Second, reforms listed in the mandate of the commission as found in Article XVI of the Comprehensive Peace Agreement, cannot be undertaken by the commission within the scope of authority laid out for the commission in the Comprehensive Peace Agreement and within the national transition agenda as currently structured.” 13 Liberia Constitution 1986. 14 Christie Report, 1930s and the Lawyer’s Committee for Human Rights 1987. 15 See Jeffrey Goldberg, “A war without purpose in a country without identity” in The New York Times ( January 22, 1995), section 6, pp. 36–39. Webster defines “identity” as “the collective aspect of the characteristics by which a thing is distinctly recognizable or known.” 16 The author was a member of the National Constitution Commission but that fact does not invalidate the observation. 17 Public Administration Service (1987) has noted that “the tradition of personal patronage and favoritism focused upon and emanating from the small elite group that dominated society . . . Liberians tended to resist the discipline of budgets and functionally structured institutions . . . . Highly personalized, spontaneous, and free-swinging management style . . . characterized the conduct of official government business” (cite). “When the Tubman era came to an end in 1971, it . . . appeared that the Tolbert regime might seize the opportunity to begin a transformation of the old society. But . . . there was little discernible evidence of changes in distributive equity, in either political or economic terms . . . . The challenge [came to be] to bring legitimacy and control to a society that had been steeped in the traditions of personal influence and spontaneous-decision

Reconstruct governance to rouse Liberia 241

18 19

20

21 22 23

24 25 26 27 28 29

making.” Note Berg’s (1986) concurring evaluation: “[N]o effective development budget system emerged from [the American-financed effort to install an effective budget system], and no durable benefits in terms of an improved public expenditure process [was established]. Attempted budgetary reform has to be judged a failure.” 2004. Huberich (p. 228) defines a nation as “a people permanently occupying a fixed territory . . . bound together by common laws, habits, and customs into one body politic, exercising, through . . . an organized government, independent sovereignty and control over all persons and things within its boundaries, capable of making war and peace, and of entering into all international relations with other communities of the globe.” The Liberia described in Part II is not a nation, for its people lack a common history or a common destiny. Carter (1962, Introduction) observed that Liberia violates “a basic criterion of a democratic system – that it institutionalize public criticism of governmental measures and provide a method for the peaceful change of leaders and ruling groups.” The failure assisted in sustaining the culture of violence. Chabal et al. 1999. These include structures such as the Interior Department (1869) and the removal of counties’ rights to tax, for example, that the Commonwealth Constitution had granted counties. Is election in 2005 an answer? As in 1985 and 1997, elections did not embark Liberia on a course to nation-building. But what is the likelihood that Liberia would sustainably begin necessary governance reforms under the Agreement and its National Transitional Government? With the National Transitional Government repeatedly accused of corruption (see http://www.newdemocrat.org and http://www.theperspective.org) and disavowing interest in reform, delaying the forthcoming elections reduces further the prospects that the person elected from among the thirty or so presidential aspirants who have not prioritized governance reform would enter a compact with Liberians. Agenda is an SOS to the international community to devise the compact and insist on implementation. See Byron Tarr, “Preface” to John Gay’s exceptionally perceptive, Long Days Anger. ICS, 2004. World Bank 2003. See John Kamu (2003), “[Second Gulf] War Eclipses Crucial IMF Report,” The Nation (Nairobi), March 24. In this context, the anomalous groups that witnessed the Agreement and accepted positions in the NTLA and the Cabinet do not qualify as civil society. Rawls 1999. The Government of Liberia has never prepared nor adopted a medium-term expenditure framework; in fact, its budget is merely a list of planned expenditures and expresses no economic policy goals. During each year of Taylor’s rule, the law approving the annual budget provided that “[t]he president is further authorized to make direct budgetary transfer as may be necessary for priority requirements of Government . . .” (cite). “Priority requirements of Government” were arms purchases and expenditures on family members and cronies. According to the UNDP, not more than 5 percent of the budget was disbursed, as the president made the transfers. The National Transitional Government has continued the practice. (http://www.allafrica. com, August 2004, various dates.) In historical perspective, George Brown and Clower document that corruption and mismanagement limited resource mobility. Although an extreme example, consider the following: “The President of the Republic of Liberia is hereby granted the sole power to execute, negotiate and conclude all commercial contracts or agreements with any foreign or domestic investor for the exploitation of the strategic commodities of the Republic of Liberia” 2001 law on Strategic Resources.

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30 Journal African Economies, Special Issue. 31 Land tenure reform impacts distributive and transformative justice, especially in a state where persons who can summarily be disposed of their ancestral land and become squatters in the eyes of the law and subject to summary eviction without compensation. To varying degrees, concession agreements from Firestone in the 1920s to OTC in 1998 did that. Increasing poor people’s land rights reduces poverty and stimulates economic growth. Greater rights increase the value of land and “can greatly increase poor people’s wealth, in some cases almost doubling it” (cite). Poor people with secure land tenure are more likely to invest in the land and more likely to speak out against corruption and to demand basic services such as health, education, roads, and water. Formal land rights can also make it easier for people to borrow money to start or expand businesses. Failure to make progress on land reform leads not only to slower economic growth but also to violence and bloodshed. See http://www. developmentbriefing.org, June 26, 2003. 32 Although the Constitutions of 1847 and 1986 mandated a census every ten years, except for censuses of settlers in the nineteenth century, Liberia’s first population census was taken in 1962. The People’s Redemption Government rejected the results of the 1984 census for political reasons. Liberia has not completed a census of population since 1972. More over, even during “normal” times, Liberia did not publish a compendium of statistics. Liberia under Taylor did not even publish rudimentary demographic, production, trade, public finance, and monetary data. 33 General Assembly Resolution A/46/746. 34 UNDP, Number LIR/94/001/A/01/31, p. 3. 35 African leaders betrayed their peoples’ trust but that truth does not negate these facts. 36 Lawyers’ Committee, 1987. 37 Cassell; Henries, Richardson; Yancy. 38 US Chief Justice Taney quoted in Supreme Court of Liberia, Ballah Karmo and WorhnBeh v. John L. Morris. 39 An example is provided in Grebo King Gyude’s letter dated February 15, 1910 to the ACS, informing it of their intention to transfer loyalty from Liberia to France; their long list of complaints included mistreatment by “the Liberians”; lack of good faith and abuse of rights. Richardson, p. 31. Other documentary evidence is contained in testimonies before the Christie Commission of the League of Nations and our rich oral history, at least from the Arthur Barclay Administration (1905–12). 40 In tribal societies, land is a gift from the gods to the ancestors; a tribe owns it in perpetuity, but may allow friendly strangers to farm it. Strangers cannot acquire ownership, only temporary rights to use the land for which strangers may offer gifts in exchange. When successive groups of ACS representatives offered gin, beads, muskets, and machetes to Dey, Bassa, and other chiefs at Dugbor – the terminus of the Du River (Cape Mesurado) in the early 1800s – the chiefs accepted the gifts and assigned the strangers land for temporary use. When the chiefs realized that the Dukor Contract would permanently alienate them from their ancestral lands, they bulked. Stockton then threatened and Johnson warned. By threat and artifice the “strangers” acquired more land until Liberia as discoverer claimed a vast hinterland. Subsequently reduced by British and French encroachment, today’s 110,000 square kilometers is bounded by the Mano River in the northwest, the Cavalla River in the southeast, the Atlantic Ocean and Sierra Leone in the north and northeast, Guinea in the east and northeast, and La Cote d’Ivoire in the southeast. The Dey versus Settlers war and the Dey versus Settlers/British war of 1822 were the first two of nearly 100 deadly conflicts between 1822 and 1937. 41 The chronology of these events remains unclear and may be questioned, but the facts remain. George Brown estimated the “purchase price” of the piece of land about $3,000. 42 Akpan 1980; Gershoni 1985.

Reconstruct governance to rouse Liberia 243 43 Uche 1974. 44 Settlers versus native conflicts in which settlers were victorious, are documented. Reporting intersettlers’ deadly conflicts Huberich notes that “Bassa Cove and Edina seem to entertain the most hostile feelings to the old colony, and everything connected with it.” Huberich, p. 545. In January 1839, Gurley wrote: “Information has been received that feelings of jealousy and unkindness towards each other have prevailed to some extent in the minds of the citizens of Monrovia and Bassa Cove . . . .” Then deadly conflicts prevented polls from opening in Bassa and Sinoe Counties and seriously affected the Constitutional Convention. Huberich, p. 655. 45 Tarr 1998. 46 Wreh 1976. 47 Richardson 1959. 48 Ibid. 49 Quoted in Boley 1983: 8 and 9. 50 Gershoni 1982–83 and Gifford 1993. 51 The Chicago Exposition of 1895 awarded Samuel Herring of Buchanan a certificate for introducing palm kernel to European trade; the palm kernel is protein-rich, and is used in animal feeds production. Its oil is used in soap-making. 52 George Brown 1941. 53 Wild rubber was a major Liberian export during the nineteenth century, and in 1910 the British developed Liberia’s first rubber plantation at Mount Barclay, which subsequently became the nucleus of Firestone’s operations. 54 Clower Robert, George Dalton, Mitchel Hawitz, and A.A. Walters, Growth without Development: An Economic Survey of Liberia, Nothwestern University Press, 1966. 55 Clower et al. 1966. 56 An interesting account of the first American receiver in Liberia is by Donald Worley, “The Career of Harry Francis Worley” (2001), privately printed and U.S. National Archives and Records Administration, Microfilm Publication M367 and http://www.nara.gov 57 The National Transitional Government’s exploration contracts may set new examples in that negotiations are by persons who may have other interests in the negotiations, not excluding funding of political campaigns and so forth. 58 Dunn 2004. 59 Ibid. 60 The logic of the National Transitional Government decision that prioritized repaying domestic debt without establishing their legitimacy or correctness escapes rationality; is it to continue enriching officials? See http://www.allafrica.com (August 2004). 61 Richardson 1959. 62 Ibid. 63 Robert Brown 1980–81. 64 Clarence L. Simpson, Sr who served Liberia in many positions including Secretary of State, Speaker of the House of Representatives and Vice President, justified assimilation in the following terms: Two courses “were open to us . . . one was to merge at the outset the comparatively small advanced elements of the population into the mass of those who, for various reasons, were at a more primitive state of development to hope that in due course all would progress homogeneously and simultaneously; the other was to preserve the ideal of western democracy on however small and imperfect a scale and to direct our efforts at gradually improving the system and extending it to broader sections of the population. We adopted the latter.” Sawyer (1992: 208) observes that Tubman, the architect of the Unification and Integration Policy, “Expressed grave fear that the ‘civilized elements’ of Liberia stood in danger of being overrun by what he called a large, semi-civilized population.” 65 Huberich 1947, p. 560.

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66 Dunn 2004. 67 Like the Israelites to whom the settlers compared themselves, their overriding goal was to survive slavery. 68 Ballah Karmo and Worhn-Beh vs. John L. Morris, Secretary of the Interior and Major John H. Anderson, Officer Commanding the Liberian Frontier Force is a case in Liberian judicial history celebrated by successive presidents’ decision to ignore the Supreme Court’s declaration of the unconstitutionality of Government’s position. Future President Edwin Barclay (1930–1933), in his last year as Attorney General and before becoming Secretary of State in 1920, argued the case before the Court on April 15, 1919; it was decided May 2, 1919. Barclay argued that “(1) the jurisdiction conferred upon the Secretary of the Interior [Department was created by an Act of the Legislature approved January 23, 1869] in relation to matters of administration and justice in causes arising in the hinterland districts is not unconstitutional, a) Because the rules of the Liberian Constitution apply only to territory defined in the municipal law of the Republic of Liberia and to such other territories appurtenant to Liberia over which the laws and Constitution have been extended and b) the territories acquired by the Republic outside the 40-mile zone fixed in the statutes as the boundaries of the Republic are governed only by such regulations as the Legislature may prescribe, which regulations furnish the character of their rights and Government. (2) That the native territories outside the 40-mile zone not belonging to constitutional Government, no action of the Secretary of the Interior in relation to matters arising in the hinterland can be tested by constitutional rules.” But the Court held that the Attorney General’s argument attacked the sovereignty of the Republic beyond the limits of forty miles from the Liberian littoral, and the limitation of the Constitution and the judicial power created thereunder to the territories embraced within the said zone of forty miles.” The Supreme Court then compared “the method and policy pursued by the several colonizing powers of Europe in the acquisition of territory from the natives of Africa, and, the founding and establishment of sovereignty and civilized government over such native territories by the said civilizing powers of Europe” p. 324. The court ruled that the Constitution applies to county and hinterland jurisdictions. p. 328. 69 Carter 1962. 70 To resolve a conflict, a mediator assists the parties identify and categorize its root, operational and catalytic causes then works with them to agree to solutions; “conflict termination” occurs when the relevance of causes of conflict to their effective removal are ignored and a solution is imposed. 71 An “Act Providing for the governments of districts within the Republic Inhabited by Aborigines” provided, inter alia, that every district inhabited exclusively by an aboriginal tribe shall be regarded as a township and shall be governed under the supervision of the District Commissioner appointed by the President. Declaring, “The Act . . . conferred upon the District Commissioner the rights and functions of a court,” the Supreme Court ruled it unconstitutional but all succeeding administrations ignored the ruling. 72 Ellis (1999) argues that these numbers are exaggerated. 73 Buel 1947. 74 It did not worry West African leaders or the international community that Taylor’s NPP won 75 percent of the vote but the RUF only won 1.74 percent of the votes in Sierra Leone. 75 The exceptions known to this author are Libenow in Carter’s One Party African States, which conforms to some general African patterns, and Doris Duncan Grimes master’s thesis submitted to New York University in the 1950s. NYU destroyed its files of the thesis, and access to this resource may be lost. 76 As an example, there were 92 elective offices to fill in 1985 – a President, a Vice President, 26 Senators, and 64 Representatives. The President designated the

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77 78 79 80 81 82 83

84 85 86 87 88 89 90 91 92 93 94

95 96 97 98 99 100 101 102

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Vice President, approved the candidates for the legislative seats; after winning the elections, he appointed his cabinet, judges, and diplomats. He then approved the appointments (or actually appointed) directors and senior management of parastal boards and normally civil service positions. Tarr 1990. Banks 1975. Ibid. Cassell 1970. Richardson 1959; Yancy 1954. Lowenkopf 1976. Horton 1994. Even in “normal” times, Liberia did not publish a compendium of statistics; rudimentary demographic, production, trade, public finance, and monetary data have not been published since 1990. Does Liberia’s data shortage express the view that analyses and the options they reveal are unwelcome “new, fangled and traducing ideas”? Choice does not survive unless alternatives are identified. Carter 1962. Robert Cole 1973. Buel 1947; Liebenow 1969; Liebenow 1987; Hinzen and Kappel 1980; Clower et al. 1966; Cole 1967. Anderson 1952. Woodward 1987. Nixon 1957. Memo to Francis A. Dennis, Liberian Ambassador to the US, 197BBBB; Dunn 2004. Liebenow 1987. Ibid. Ibid. On the BBC’s Network Africa News program of August 5, 2004, Klein, the UN Secretary-General’s Special Representative in Liberia, observed that National Transitional Government ministers “see themselves as heads of factions and factional ministers, not ministers of government.” One wonders if Klein had read the Agreement! King, p. 3. UNDP, p. 13. UNDP, pp. 4, 5. Tarr 1993. Ellis 2003. Warring parties allocated their positions according to seniority of ranks; MODEL’s Chairman, whose experience is as a psychiatric nurse, became the foreign minister, for example. IFES 2004. Chester Crocker, the United States’ point man for Africa, refused Senator John Kerry’s request to release field reports of independent poll watchers: the verification reports would not be released “ON MY WATCH.” See the Los Angeles Times of December 2, 1986. Crocker later in Foreign Affairs, September/October 2003, diagnose the problem as if his role in the negligence was not critical to the future mayhem. Sadly for Liberia, the Crocker mentality prevails. Lyons 2001. First, patronage and not independence or relevant prior experience determined choice of members of committee; second, neither the National Transitional Government nor the ICGL prioritizes the funding of the Commissions. See footnote XX. Per the terms of the Agreement, the Chairman of the National Transitional Government nominated members of each commission, as he does members of the boards of directors of 16 parastals, the University of Liberia, etc. Appointees have no claims of prior experience or training in the arrears; in the case of the Liberia

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Byron Tarr Petroleum Corporation, the Chairman’s private Legal Advisor, in violation of the law that established the LPRC, assumed the chairmanship of the LPRC Board of Directors. Except for University of Liberia, see “Bryant Reconstitutes 16 Corps Boards,” The Inquirer, January 9, 2004, p. 5. Liebenow 1969. Sawyer 1992. ICG. See, “Toward a Liberian Reform Agenda”: Minutes taken by The Carter Center. Please contact Thomas Crick at [email protected]. (emphasis added).

13 The postconflict security gap and the United Nations peace operations system Peter H. Gantz

Peacemaking and peacekeeping operations, to be truly successful, must come to include comprehensive efforts to identify and support structures which will tend to consolidate peace and advance a sense of confidence and well being among people. (Former UN Secretary-General Boutros Boutros-Ghali1)

Introduction: the public security gap In previous times, when large relatively slow moving armies fought wars, the postwar phase generally had sufficient numbers of soldiers to effectively occupy the captured territory and ensure public security and safety until the occupying power could create and put in place the appropriate governance structures. Today’s swiftly waged wars, featuring high-tech weapons and tactics and relatively small numbers of troops, like Iraq and Kosovo, have insufficient military forces in place or available to meet these tasks, and local capacity has generally been disabled. Consequently, a serious public security and safety gap occurs. The same gap often occurs in weak or failed states emerging from civil war or other sorts of conflict, such as Sudan, Liberia, and Haiti, where the United Nations often deploys peace operations. In fact, this gap became increasingly evident during the dramatic expansion of peacekeeping operations in the 1990s, as the international community sought to move from monitoring peace agreements to rebuilding societies torn apart by conflict and civil war. This is because peace is more than the absence of conflict; permanent, lasting peace requires transforming the structural underpinnings of the conflict itself.2 Local law and order institutions (police, courts, jails) provide a means for internal dispute and conflict resolution in a society; if those institutions are too weak to provide this function, instability results. Policymakers have therefore become more aware of the importance of dealing with the postconflict security gap and restoring the rule of law in postconflict societies because instability often means the costly failure of reconstruction and development activities.3 The need to provide public safety and security in peace operations where the local capacity to do so is not present or is too weak is not new. Colonial activities,

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dealing with counterinsurgencies, occupation duties, frontier operations, and other sorts of missions have engaged militaries around the world for centuries. Obviously, many of these missions differed significantly from modern peace operations, but all have sought to establish or reestablish stability. In keeping with that goal, all of these operations contained the law administration and policing elements of civilian rule.4 Illustrating this, the 1940 United States Marine Corps Small Wars Manual discusses the creation of native constabularies and the conduct of elections, tasks that are familiar to modern peace operations.5 For today’s peace and stability operations, it is desirable that civilian police capacities address the public security gap. International civilian police (CivPol) can contribute to public security in the short-term, and are the most appropriate actors to deal with civil disturbance, criminal activity, refugee security, election security, and the monitoring and training of local police forces.6 To address the immediate postcombat issues (looting and general lawlessness), as well as the more serious postconflict public safety and security tasks, such as organized crime and extremist activity, the CivPol element of peacekeeping operations can be augmented with the addition of constabulary police.

Postconflict policing Postconflict policing is one part of what is often referred to as a rule of law operation; the other parts focus on the courts and the prison system. Rule of law operations are part of the overall peace operation, which deals with restoring or building many different sectors of a society. The task of postconflict policing is complex. In many countries emerging from war and conflict, the local police have been part of the government’s hold on power, and have a history of employing brutal tactics against the populace. Consequently, whether the previous regime is no longer in power, or sharing power under a peace accord, the need for CivPol to assist in reforming the institutions of law and order is clear, as the previous police structures do not hold legitimacy with ordinary citizens. In other postconflict situations, the collapse or removal of a regime has led to the complete absence of a police capacity, requiring not just reform, but also the temporary provision of a full spectrum policing capacity by the intervening peacekeeping forces, and this task as well falls upon the CivPol element of the operation.7 The role CivPol plays in peace operations is very different from the role of soldiers, and this includes military police. In fact, the term civilian police in peace operations originated as a way to differentiate it from military police.8 Military forces are heavily armed, train and deploy as a unit, and live in a separate area under a state of readiness.9 In peace operations, military forces, whose traditional job is to provide territorial security against armed attack from another country, tend to oversee the disarmament and demobilization of combatants; oversee the supervision of a cease-fire; and provide security for the mission.10 In the initial stages of intervention in a failed state/civil war situation, military forces establish

Postconflict security gap 249 stability and a secure environment so that other activities, including restoring the rule of law, can take place.11 Military forces, including most military police, are normally not trained or equipped to perform the full spectrum of policing functions in a democratic society. Soldiers, moreover, operate under rules of engagement that permit a use of force doctrine oriented toward shooting first and asking questions later. CivPol generally deploy individually, although constabulary police usually deploy as formed units. CivPol units are police officers that have been trained to preserve public order and protect property within a country under its national and local laws. In established democracies, police generally may only use force proportional to the situation, and, while authorized to use deadly force, may only do so under heavily proscribed circumstances as dictated by law.12 Another crucial distinction is that police officers, including CivPol deployed to a peace operation, generally live in and with the community that they are policing.13 Historically, CivPol have not had executive authority in peace operations, since, in most missions, they are only monitoring the local police forces.14 There have been exceptions recently, in cases such as Kosovo or East Timor, in countries with a complete or partial absence of local law enforcement capacity following the military intervention. In these cases, CivPol are armed and authorized to enforce laws, arrest suspects, and use deadly force if necessary.15 CivPol perform a variety of tasks in peace-operations; its core tasks are within the SMART concept, introduced in 1995. SMART describes the following activities: Supporting human rights and humanitarian assistance; Monitoring the performance of the local law enforcement agencies, prisons, courts, and implementing agreements; Advising the local police on humane effective law enforcement according to international standards in various legal instruments; Reporting on situations and incidents; and Training local police in the best practices for policing and human rights.16 CivPol are an increasing part of peace-building and institution building activities in peace operations. The most important aspect is creating a professional indigenous civilian police force that will uphold the law, protect citizens, and maintain order with minimum force.17 A key part of any society bound by law is a police force that serves as an enforcement mechanism to deal with those who break the law. Without an enforcement mechanism, the rule of law becomes subservient to power rather than to what is right.18 Furthermore, no legal system can put its decisions into effect without an effective police capacity. At the same time, it should be noted that the police must be subject to the control and guidance of an effective legal system to ensure that a state’s legitimacy is not undermined. In fact, this illustrates a key point about postconflict rule of law operations: the operation must reform or rebuild all parts of the law and order system – police, courts, jails – to ensure the success of the overall peace operation. These components are inextricably related to one another.19 The use of police for public security tasks in a peace operation is therefore merely one part of the overall rule of law operation, but it is an important part.

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Capacity for policing in peace operations Problems with the UN CivPol system Most peace operations with a policing component take place as UN peace operations or another organization/country leads them, but with a UN mandate. UN CivPol missions begin when the Security Council votes to approve a new peace operation or to alter the mandate of an existing operation to include a CivPol element. The United Nations recruits CivPol for peace operations based on “universality.” At the beginning of a peace operation, the United Nations sends letters to the permanent missions of member states to request that they contribute as many police officers as possible to the operation.20 Recruitment standards for CivPol in UN peace operations are not extensive. CivPol members must have a minimum of five years of policing experience, or eight if the mission is complex; the ability to drive a four-wheel drive vehicle; and oral and written fluency in the working language of the peace operation, which is generally English or French. Recruitment efforts now also target specialized skills such as judges, investigators, and computer specialists.21 A review of the salient problems with the UN CivPol system is useful, as these problems are significant and numerous. The problems include quality and training; quality and recruitment; a time gap; operational difficulties; management and mandate issues; and a lack of accountability.

Quality and training A serious quality and training gap has led some UN officials to describe the UN CivPol recruitment process as settling for second- and third-tier recruits.22 UN CivPol officers are often below par, for a variety of reasons. The most obvious is that with a volunteer system for each mission, the United Nations ends up with CivPol officers from many different parts of the world, including significant numbers from nonindustrialized nations that have relatively ill-trained police.23 One of the more notable problems has been that CivPol officers are unable to adequately speak or write in the operating language of the mission. In fact, it has been common for CivPol officers to arrive at a mission barely able to fill out their names on identification cards in the operating language.24 The language problem has hampered the effectiveness of CivPol components. CivPol officers lacking the necessary language skills have produced reports by copying previous reports that indicate that they did not observe problems – whether or not there were any actual problems. CivPol officers with poor language skills have had problems communicating with other elements of the peace operation, such as military forces, and have largely been unable to use interpreters to communicate with the local population, which is a crucial weakness.25 The uneven quality of CivPol forces creates other problems. With police coming from nearly seventy countries, a confusing mix of social, cultural, normative, and religious backgrounds, and a wide range of policing skills and cultures usually

Postconflict security gap 251 make up the CivPol component of most missions. CivPol forces come from industrialized and established democracies, economically developing emerging democracies, and autocratic regimes. The wide disparity adds to the difficulty that CivPol commanders face when seeking to create an effective CivPol component in the peace operation.26 Many CivPol members have identified the wide disparity in training and proper procedure as the most pressing issue that the United Nations should address, which the United Nations can do through better screening and training programs. For example, some CivPol contingents have come across other officers watching the local police beat a suspect and doing nothing because the officers believed that beating a suspect was appropriate interrogation tactic.27 The problems with quality are particularly important given CivPol operations. Their job includes daily interaction with people living in trying circumstances and attempting to recover from the many horrors that conflict inflicts. Police officers in general should have advanced personal skills, but this need is even greater for CivPol. The United Nations knows that advanced skills are necessary, and has sought senior officers for CivPol contingents. But the wide array of training standards and qualifications among the contributing countries can make it difficult for the commanders to select appropriate officers.28 Quantity and recruitment The United Nations faces a serious shortfall of qualified CivPol members for every mission it seeks to implement. UN member states do not generally have CivPol officials readily available for deployment to foreign places, since police officers in most societies are busy doing their jobs. Unlike soldiers, who are in a state of readiness at their barracks, and can be available relatively quickly, police are upholding law and order in the community. In some countries, constitutional issues regarding the legal authority to deploy police officers can make the process of providing police to peace operations more difficult.29 The situation seems unlikely to improve soon. Governments continue to face high crime rates and inadequate numbers of police. More recently, the added demands of dealing with potential terrorist and international organized crime make it less likely that governments would be willing to release more than a small number of police to international peace operations.30 The time gap The lack of available CivPol officers for duty combined with the frequently poor quality of CivPol officers means that it takes an exceedingly long time to deploy CivPol forces. For example, the Security Council established UNTAC (UN Transitional Authority in Cambodia) in late February 1992, with 3,600 officers authorized for a CivPol component. Nevertheless, by April 1992, only 200 CivPol were in Cambodia. It took until November 1992 for the component to reach 3,300, which was as close as it got to full strength. This was only six months before

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the scheduled elections in May 1993, and was a contributing factor to the public security problem in Cambodia before the elections.31 Although this example dates from 1992, matters were similar at the end of the decade. Operational problems The operations have several areas of concern. First is the logistical support gap. A common complaint made by many who have participated in CivPol missions is the United Nations’ inability to provide adequate equipment, transportation arrangements, and communications systems. Unlike military forces, CivPol generally deploy with their national uniform and little else.32 CivPol officers rely on the United Nations for medical care, rations, offices, and mundane things like postal service. When the United Nations deploys CivPol as part of an overall UN peace operation that includes military forces, logistical support has been problematic, but not critical. In Bosnia, the United Nations deployed CivPol forces without any UN military forces, working instead with NATO military forces, which made the situation far more serious. With practically no logistical support from the United Nations, at least initially, and NATO largely unprepared and unwilling to provide such support services, CivPol officers were reduced to scrounging for whatever resources a variety of sources could spare.33 A very serious operational question has been what standards the CivPol should use in terms of establishing a baseline for local police procedures and behavior, and, more critically, the system of law to use when the CivPol have executive authority. When monitoring local police, the question is whether the mission should use international standards or adhere to local standards. Part of the answer might come from whether the country is party to international human rights instruments, and whether the local laws conform to those instruments. To address these concerns, the UN Department of Peacekeeping Operations (DPKO) released a useful document, known as the UN Criminal Justice Standards for Peacekeeping Police (UNCJS). The UNCJS has a short course that provides CivPol members, who may have little knowledge of human rights and international law, the means to assess effectively the performance of local police.34 The question of what system of law to enforce when the CivPol are the enforcers of the law is tougher. Bernard Kouchner, the first UNMIK administrator, suggested that the United Nations should approach such tasks with a set of draconian security laws to stop criminal behavior from flourishing in the postwar absence of state authority.35 Whether this is the correct answer or not, it is obvious that the United Nations needs a standby code of basic criminal laws and procedures for cases where the United Nations grants executive authority to CivPol.36 Aside from what legal code to implement, the matter of granting executive authority and arming the CivPol has been contentious. The first issue is of executive authority itself, as the fundamental question concerns the legal underpinnings that give CivPol such authority. The Australians during the Somalia mission applied the laws of occupation to justify robust policing, which

Postconflict security gap 253 they based on their understandable contention that humanitarian operations could not take place effectively without law and order. The United States disputed this approach, fearing that it would obligate certain actions beyond the point of support from the American public and Congress. On a more basic level, when the UN Security Council provides executive authority for a CivPol mission, by what international legal authority does it take such action? In effect, such an action subsumes the sovereign right of a nation to police its citizens. While this may be necessary in some cases, the ramifications of the action, which approaches reasserting the trusteeship authority that the League of Nations possessed, raises serious questions concerning the authority present in the UN Charter as well as the overall means appropriate to reach the identified goal of the peace operation. A peace operation that takes on policing and governance tasks acts as a government in many ways. Under what international legal authority can such actions take place?37 This important debate has been ongoing for several years, but it is not clear that a comprehensive and widely accepted viewpoint has emerged. Some also question whether CivPol forces should be armed. The arguments against arming the CivPol are numerous. Many believe that an unarmed CivPol presence has the greatest chance of gaining the respect of local citizens. An armed police presence in a postconflict society may give the populace the belief that the use of firearms is a necessary part of law enforcement. Furthermore, an unarmed police and armed military might show the populace that the new civil structure does not have to rely on force to maintain power.38 Some Americans no doubt find this argument peculiar, given that American police are armed. While this example usefully points to the tensions that different policing traditions can create, it remains a thorny issue that countries must deal with. Many police involved with UN peace operations maintain that CivPol are safer unarmed, as they do not pose a threat, and instead rely on the moral authority of the UN blue beret and badge.39 The United Nations has generally argued against arming CivPol because: (1) police are no match for heavily armed populations; (2) the CivPol role is to create confidence in the rule of law, not the resort to violence; (3) many countries have a tradition of unarmed police; and (4) the need for police to carry weapons would indicate a high risk in the mission to CivPol contributing countries.40 An additional argument is that arming CivPol might make their living quarters a target for insurgents to obtain weapons. There is also a question of whether CivPol members are competent to carry weapons, as the discussion concerning the quality of CivPol illustrates.41 Management and mandate issues While much of what has been mentioned previously goes to the conduct and capacity of member states, the United Nations is also guilty of creating capacity gaps. One issue has been the lack of intelligence available to CivPol in the field, which makes their job harder and adds to the risks involved. There are also coordination problems between the CivPol, other UN agency officials, the military

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forces, and aid workers. The United Nations tends to avoid delegating decisions to the local level, creating a management headache for the CivPol commander.42 On the ground management can also be lacking. The United Nations appoints managers on site, giving little opportunity to base selection on substantial criteria. One result of this is an inordinate amount of time and resources spent on the internal reorganization and redeployment of personnel.43 The United Nations often deploys CivPol in haste a few days after a Security Council resolution.44 In this respect, the Security Council is the cause of the problem by not accounting adequately for the realistic needs of a CivPol deployment to a peace operation. Not surprisingly, this extends to the mandates for CivPol components, which have often been problematic. One of the most egregious examples is that of Somalia, where five CivPol officers were assigned the task of creating a 10,000 member Somali police force. Unsurprisingly, the effort failed. Although the small number of CivPol assigned to the Somalia mission played a role in the failure, it also became obvious that ordinary police officers do not necessarily make good trainers of local police. The United Nations primarily recruits CivPol for monitoring tasks, and thus they may not always be well prepared for more advanced peace-building tasks. The skills to create new police academies, draft new police doctrine, restructure police forces, and train police are significantly different from those needed for actual policing. These tasks require police and police supervisors with specialized skills and training. This has proved to be an ongoing problem, one that the Security Council has so far shown little sign of understanding.45 Lack of accountability The accountability of CivPol is another serious matter.46 The human rights division of UNTAC received numerous complaints about the behavior of UNTAC CivPol, including allegations of rape. In the El Salvador peace operation, a CivPol officer was removed for drug trafficking.47 More recently, CivPol in the International Police Task Force in Bosnia were allegedly involved with the sexual trafficking of women.48 This was particularly disturbing given the existing large problem of trafficking in women and children in Bosnia.49 Due to the Status of Forces agreements that generally address legal matters concerning the behavior of those involved with peace operations, the United Nations can do little against the CivPol officers that break the law. Essentially, the only option is for the United Nations to send them home, and the home country can decide whether to punish them.50 Impact of the problems Clearly, the inability to establish effectively public security in a postconflict environment can threaten the general population. Civilians often face threats during a postconflict period from violent criminals, ex-combatants, rioters, vigilantes, or those seeking retribution. In the aftermath of the civil wars in the 1990s, increasingly violent crime was the greatest civilian threat. The end of war releases

Postconflict security gap 255 both arms and former combatants into the general society. With few jobs available, many people in postconflict settings easily turn to criminal activities. As discussed, the aftermath of civil wars also often features the collapse of the justice and security sector.51 The obvious result is that crime increases and the local capacity to address crime decreases. The inability of the international community to deploy a sufficient number of qualified CivPol members does not mean that there is not an attempt to address public security issues in postconflict settings. The growing need for some sort of public security function in peace operations, combined with the UN CivPol capacity issues, has resulted in the military taking up policing tasks. However, while the military has played this role, it does not always do it well. Military troops and police officers are trained for different tasks, have different rules of engagement, and should not be asked to perform jobs that they are not well-trained nor equipped to handle.52 Military officers also do not tend to like the policing job. Military planners tend to view policing in a postconflict situation as a minefield of trouble – one that will lead to conflicts with the local population and from which it will be difficult to extract forces.53 Kosovo illustrated this issue. In the immediate aftermath of the war in Kosovo, a surge of revenge killings and other interethnic violence sprouted. KFOR, the NATO military peacekeeping force in Kosovo, was forced to take on policing roles in the absence of the UN CivPol. Organized crime in postconflict settings is a final point worth mentioning. One lesson from the UN peace operation in El Salvador was the extent to which organized crime can develop during the postconflict phase.54 The slow start of UNMIK in Kosovo and the lack of any other policing capacity except from KFOR, allowed Albanian organized criminal networks to gain a strong foothold in Kosovo that continues to this day.55 The inability to deploy swiftly CivPol clearly exacerbates the problem of organized crime taking root in postconflict societies. But it should also be noted that it is not reasonable to expect effective campaigns against organized criminal networks from police officers thrown together from various countries, who do not speak the local language or each other’s language, who have had little contact or experience with the local populace, who are deployed for only short time periods, and who may have unclear legal mandates.56

UN and US efforts to enhance CivPol capacity The list of issues and problems with the UN CivPol system provides ample reasons to improve the capacity to deploy international police and related rule of law experts to peace operations. Efforts to improve capacity at the United Nations The United Nations has attempted to correct some deficiencies of the current CivPol system. Following the creation of the Civilian Police unit in 1993, the United Nations expanded the unit in 1994–95. The United Nations also developed training guidelines and various handbooks for CivPol, and established

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the previously mentioned requirements for CivPol in peace operations. Confronted with the high failure rate of CivPol recruits in Bosnia – at one point it was 75 percent – UN DPKO instituted Selection Assistance Teams (SATs). This allowed the United Nations to avoid the high costs of repatriation, given that the United Nations was responsible for many transportation and room and board expenses involved in getting CivPol recruits to the mission and sending them home if they failed. The SATs were composed of UN representatives sent to member states to test CivPol recruits. The SATs delivered many benefits, including better CivPol recruits and better relations with member states.57 They also generated an estimated savings of over US$11 million.58 Nevertheless, probably the most significant UN attempt to improve its CivPol capacity is taking place now, as part of the overall effort to improve peace operations. In 2000, Secretary-General Kofi Annan commissioned a panel to assess UN peace operations and recommend what might be done to improve them. Former Algerian Foreign Minister Lakhdar Brahimi chaired the Panel, and its report, released in August 2000, is commonly referred to as the Brahimi Report.59 The Brahimi Panel’s proposals for enhancing CivPol capacity The Brahimi Report came at a time when the number of military and civilian personnel in peace operations had increased from 13,000 to 35,000 in 14 operations during the preceding year. The United Nations peace operations failures, including the failure to prevent genocide in Rwanda and the massacre at Srebrenica, Bosnia motivated the report. Concerning CivPol, the Panel noted that the CivPol had evolved from setting a good example for local police and reporting on unacceptable behavior to reforming and restructuring local police capacity. It was also noted that the CivPol component would increasingly need to respond to civil disorder, and work to restore functioning and appropriate judicial and penal systems.60 Consequently, the Brahimi Panel proposed numerous reforms to the UN CivPol system. The Panel encouraged member states to establish national pools of CivPol officers that would be ready for immediate deployment to UN peace operations. It suggested that they should enter into regional training partnerships for CivPol in order to promote a common level of preparedness. The Panel further recommended the creation of a revolving on-call list of about one hundred police officers and related justice experts to be available on seven days notice to create CivPol components when peace operations start.61 The Panel also recommended that the United Nations reorganize the DPKO, including removing the CivPol unit from the military chain of command and elevating it in status.62 In response, in October 2000, the United Nations set up the Civilian Police Division. The United Nations mandated the Division to plan and support the work of CivPol in UN peace operations. It has the following goals: ● ●

support the civilian police components of UN peacekeeping operations; enhance the planning capacity for the police components of UN operations;

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● ●

assist as appropriate in strengthening the performance, effectiveness, and efficiency of local criminal justice systems, including police and corrections; enhance the ability to deploy rapidly a functional police component; and improve the quality of representation in the field.63

The Panel also recommended establishing a new unit within the DPKO staffed with judicial, penal, human rights, and other relevant specialists to advise the CivPol on various criminal justice issues and compose “rule of law” teams to deploy in UN peace operations.64 The implementation of the Brahimi Panel’s recommendations continues, but it is a slow and incomplete process.65 Do the Brahimi Panel reforms go far enough? For all the good the Brahimi Panel’s recommendations might accomplish, an important question is whether the CivPol will in fact fully implement the reforms. There is some reason to think that they will not. The first problem is the reality of the UN budget, and its effect on implementing the Brahimi reforms. For instance, although the UN Civilian Police Division is now authorized for 24 positions, it took months before it actually added even a few staff people. It now appears that 18 of the positions are filled.66 The reasons for the delay vary, but have to do, at least in part, with funding matters. The United Nations faces two serious obstacles to sound budgeting. First, the US Congress passed legislation in the 1990s mandating that the UN regular budget must remain at zero nominal growth, including no adjustments for inflation. Given that the member states still find new jobs for the United Nations, the legislation has created severe restrictions on the United Nations, budget. In order to add funding for a new task, funding must be taken away from another area. Developing states, which have traditionally disliked any sign of taking away development funding for security funding, particularly given that some of them regard peace operations as a pet project of industrialized countries that can often impact their national sovereignty makes the budget problem worse. Consequently, even small increases to the core capacities of the UN Department of Peacekeeping Operations (including staffing the CivPol Division) require long drawn-out fights to reallocate funds within the static regular budget. The second problem is the essential requirement that member states build or enhance their own capacity to conduct rule of law operations. This has been requested before to little avail. The United Nations has had the basic requirements to be a CivPol officer in a peace operation in place for years. Even so, member states have routinely ignored these requirements. Implementing the SATs have helped somewhat, but the fact remains that getting qualified CivPol officers to a peace operation in a timely manner is still a huge problem. As noted by many, including Perito, the various workshops and seminars that many member states representatives attended have discussed the basic recommendations that the Brahimi Panel proposed.67 All of these occasions had little to no disagreement on the recommendations presented. But little has

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happened because there is no leadership. It is here that the United States could play a useful role. Taking the results of UN workshops, the blueprint for reforms contained within various reports from think tanks, and the list of recommendations contained in the Brahimi Report, US policymakers have much of what they need to play a leading role in improving UN CivPol capacity. The problems have been clearly outlined, and the proposed solutions are well known and largely agreed upon. Furthermore, high-ranking officials in Washington and New York have indicated the pressing need to take steps to improve CivPol and its rule of law capacity.68 A reasonable person would wonder why the United States has not been more proactive on this issue. The collapse of public order has been a significant factor in every US military intervention in the past two decades. The problem is not, or should not be, new to US policymakers. In each case, however, the United States. has been unprepared to address the lack of public security.69 What happened in the immediate aftermath of the April 2003 war in Iraq suggests that the United States has still not learned any lessons. Once again, there was a collapse of public order and security while US marines stood about watching, just as they had in Panama and Haiti, to name two other instances of failure. Once again, this allowed organized crime networks, internal terrorist networks, and rebel groups to form and spread during the postconflict phase. A postconflict security gap was created and largely still exists in Iraq, and this has once again illustrated that there is little United States or international capacity to adequately deal with such situations. Improving the US approach Clearly, enhancing the US capacity for deploying CivPol and related rule of law components would greatly improve the United Nations overall ability to confront postconflict security problems. Presidential Decision Directive 71 (PDD-71), released late in the Clinton administration, outlines reforms and other actions the United States could take to improve national and international capacity to restore the rule of law in postconflict societies. PDD-71 was the third in a series of Clinton administration documents designed to improve the US approach to peace operations, the others being PDD-25 (reforming multilateral peace operations) and PDD-56 (managing complex contingency operations). The specific objectives of PDD-71 included: (1) establishing the State Department as the lead agency for CivPol efforts and restoration of the rule of law during peace operations; (2) enhancing the capacity to provide American officers to CivPol peace operations, helping other countries provide CivPol officers, and providing training assistance for indigenous police; (3) creating an interagency effort to improve US capacity to assist criminal justice activities in peace operations; and (4) improving the UN and regional organization capacity to provide CivPol and other rule of law experts to peace operations.70 PDD-71 also recognized that the US CivPol program, lacking statutory authority and funded annually, was weak and without major support in Congress, and suggested that this be changed.71

Postconflict security gap 259 The Clinton administration did little to implement the directives in PDD-71. There was little leadership from the National Security Council or the President, as the 2000 election season heated up. Following that, the Bush-Gore election dispute further distracted the administration. The Bush administration has shown little enthusiasm for the document.72 PDD-71 called for a major upheaval of the US government bureaucracy, meaning that any action taken to implement the measures contained within PDD-71 would require significant political will. Nevertheless, many of the reforms suggested seem sensible, and generally have wide approval from postconflict security experts and practitioners. Encouragingly, both Congress and the Bush administration have recently begun to act to build US capacity for postconflict operations. The State Department created an Office of Stabilization and Reconstruction, and the Bush administration announced at the G-8 Summit in Sea Island, Georgia, a Global Peace Operations Initiative designed to enhance global peacekeeping capacity, including capacity to deploy civilian police to peacekeeping operations. The United States cannot build capacity for policing in peace operations Ultimately, the history and method of US involvement in the policing component of peace operations shows just how problematic it would be for the United States to address the problems with UN CivPol noted earlier. The United States first participated in a CivPol mission during the 1994 US-led intervention in Haiti, Operation Uphold Democracy, sending fifty American police officers to help restore the rule of law. Planners for the operation knew that Haiti lacked a proper police force, and further expected that the US military would remove the Haitian military forces as part of the intervention. Given the anticipated lack of a Haitian capacity for policing and security, plans were made to establish an international police monitoring force and a police academy to train a new Haitian police force. The United States agreed to provide police officers to the mission because few other countries were willing to provide police without an American police presence. Unfortunately, the State Department soon discovered that this was easier said than done. The United States has no national police force to call upon for such missions. Furthermore, it is not possible for the federal government to “hire” state or local police for overseas duties because of constitutional limitations and because management of a volunteer program would be odious. Consequently, the State Department contracted with a private company, DynCorp, to recruit, train, and deploy American police officers to Haiti.73 In the absence of a national police capacity, the United States has little to offer to create or improve policing capacity for peace operations. Even if the United States was willing to create a national police force of some sort, it will take time. For this reason, the Bush administration’s recent proposals focus on helping build capacity elsewhere, and, concerning CivPol, working with EU capacities.

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The EU’s constabulary police capacity can benefit peace operations It is possible to see how the EU could take a leading role in improving overall policing capacity in international peace operations. This could in fact prove to be an important point for future EU–US relations, particularly in the context of the future of NATO. As Hamilton notes, there has long been concern over the relative lack of military capacity by most EU countries within the framework of NATO.74 Some in this debate have argued that the EU’s strength is in building core civilian capacities, including for peace operations.75 Clearly, one of these civilian capacities could be police. Such a capacity-building program by the EU, focusing on police capacity, could complement ongoing UN efforts to improve its CivPol system as part of an overall effort to improve the effectiveness of UN peace operations. A useful question, not particularly explored by the Brahimi Panel, is whether constabulary police can improve the effectiveness of CivPol activities within UN peace operations. This is an important point for EU policymakers to consider, because most constabulary police forces in EU countries are widely regarded as highly professional and capable police organizations. As will be described later in detail, constabulary police from EU countries are already formed, well-trained, well-disciplined police units, with their own command structure and procedure in place. These police forces are comprised of police officers who speak the same language, and who can deploy rapidly with their own transport, communications, and logistical support.76 It is easy to see, therefore, how the inherent nature and characteristics of EU constabulary police forces could address many of the CivPol shortcomings previously noted.

A growing EU role in policing and peace operations To assess further the idea that EU constabulary police can benefit international peace operations, the EU’s preparedness for and approach to peace operations is relevant. A look at EU police and peacekeeping missions sheds light on EU institutional and member state political will for peace operations. EU constabulary police capacities and the experiences with some past deployments of EU constabulary police illustrate the obstacles and the benefits of constabulary police in peace operations. EU institutional proposals/capacities for police in peace operations The EU’s actions to prepare for such operations have enhanced its potential to address capacity gaps for policing in peace operations. The EU introduced new institutions to be involved in conflict prevention and resolution in the Treaties of Maastricht and Amsterdam, with the creation of the Common Foreign and

Postconflict security gap 261 Security Policy and the European Security and Defense Policy (ESDP). To provide a credible intervention capacity, the EU identified a number of tasks a European force could undertake, including humanitarian and rescue missions, peacekeeping, crisis management, and peace enforcement operations. The Treaty on European Union defined these tasks (the so-called “Petersburg Tasks”), which are the ones that the 1992 WEU Petersburg declaration had described earlier. To implement the Petersburg Tasks, the EU created a Rapid Reaction Force to build a force with the strength of 50–60,000 over the years. The Rapid Reaction Force would also provide up to 5,000 police officers to deploy to situations requiring civilian crisis management capacities.77 European Council conclusions at Feira and Goteborg further emphasized the need to develop the capacity to deploy member states’ resources in the areas of police, rule of law, civil protection, and public administration.78 Recent EU police and military actions under the European Security and Defense Policy The EU Police Mission (EUPM) in Bosnia and Herzegovina (BiH) started on January 1, 2003. It replaced the UN International Police Task Force, and is part of a holistic rule of law operation that is also tackling the courts and the prisons. The EUPM is continuing the previous UN-led efforts to establish a sustainable BiH police capacity in accordance with European and international best practices. There are more than five hundred police officers from over thirty countries serving in the EUPM.79 The EU has also established a police mission in the former Yugoslav Republic of Macedonia (FYROM). The EU launched the mission, codenamed “Proxima,” on December 15, 2003, and it consists of around two hundred police and other civilian personnel. The goals of the mission include helping with the fight against organized crime, the creation of a border police, and other local police assistance programs.80 The EU feels that these police missions are further evidence of the development of the ESDP, as well as of the EU’s efforts to contribute to international efforts to promote stability and security.81 The EU has gotten involved in a peacekeeping venture outside of Europe as well. Following a series of massacres and other violence in the Ituri province of the Democratic Republic of the Congo (DRC) that UN peacekeepers were unable to effectively deal with, an EU military intervention codenamed “Artemis,” under the leadership of France, deployed to Ituri with 1,800 troops. The EU force effectively stopped the violent descent into chaos, and turned authority back to the United Nations after several months. EU efforts to assist with demobilizing, disarming, and reintegrating armed groups, preparing socioeconomic rehabilitation programs, and an aid package to help set up an ethnically mixed police force followed the EU military intervention.82 There are talks underway within the EU for an EU police mission to the DRC in order to assist further the government in setting up a national police force.83 These missions are the opening steps for the EU to engage more actively in security matters. The missions show that the EU can react to crises, and take part

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in peace-building activities. The EUPM, the “Proxima” police operations, and the “Concordia” military operation that preceded “Proxima” in FYROM, are examples of where the EU has taken over duties from other international actors. “Artemis” indicates a willingness within the EU to take the ESDP to the global level; hence its importance to this discussion. If the EU is to contribute to the capacity of international peace operations by developing and leading a greater constabulary police capacity, these activities will prove important. They show that the political will exists within the EU to play a role in enhancing international stability and security, and will provide experience and lessons learned for future operations.

Constabulary policing capacity and peace operations Defining constabulary police To understand how constabulary police can augment a peace operation, it is necessary to first define just what is a constabulary police force. This can be difficult because scholars disagree about what sort of police are constabulary, and some countries, such as the United States, have little experience with constabulary police, which means that they have less of a general sense of what they are.84 One way to determine whether a police organization is a constabulary police is via its organizational structure. A constabulary police is a “force organized along military lines, providing basic law enforcement and safety in a not yet fully stabilized environment.”85 Alternatively, the functional viewpoint describes a force based on a “behavioral adherence to the minimum use of force concept,” with the aim of trying to attain viable political compromises rather than a resolution through force.86 The inclination to describe various paramilitary forces as constabulary in nature has further confused the issue.87 Others argue that paramilitary groups are usually those that do not have a specific mandate, and they often use coercive violence to further political agendas.88 Looking at specific constabulary police organizations can give a better understanding of these types of police organizations.89 Constabulary police forces such as the French Gendarmerie and the Italian Carabinieri are “highly trained flexible organizations with distinct histories of civilian and military service to their respective governments. They have a clear command structure and operate under specific guidelines laid out by their individual mandates. Their primary functions center around the protection and well-being of the country and its citizens . . . .”90 This chapter will use the definition of constabulary police as “armed forces of the state that have both military capabilities and police powers. Such forces can serve in either a military or civilian capacity and operate independently or in cooperation with other military or civilian police forces.”91 Another definition helps to describe the unique role constabulary police can play in peace operations – it “provides for public security in a postconflict area of operation after the

Postconflict security gap 263 combat-heavy units have redeployed and before peace building efforts have succeeded in reestablishing local . . . law enforcement capacities.”92 Some concerns about constabulary police in peace operations Before arguing for the expanded use of constabulary police in peace operations, however, there are some concerns worth noting. As discussed earlier, many postconflict societies use local military and police forces to buttress a government’s hold on power. This is particularly true in countries that have experienced civil war. Therefore, the line between the military and the police may become blurred. Peace operations must address this problem, because the populace will not see any police capacity created or reformed by the peace operation as legitimate if they view it in the same light as the previous abusive police force.93 Constabulary police are, as just described, something of a cross between police and military forces. It is obvious that such forces might provoke the wrong perception in a postconflict society, pointing, among other things, to the need for an effective public relations effort by the peace operation to explain the role of the constabulary police component. A second concern is related to the first. Spain, France, and other European powers left constabulary police forces in many of their colonies. The United States created constabulary police forces in various places in the Caribbean as well. Despotic regimes subsequently misused many of these police forces to consolidate and hold onto power.94 If the peace operation is taking place in a country where the local police force was a constabulary police, and that police force was part of the conflict and part of the problem in the society, then the deployment of an external constabulary police, no matter how professional, will face serious obstacles in terms of public perception and acceptance, which puts a considerable burden upon the entire peace operation. Looking at this issue on a broader level, Hansen suggests the data to evaluate whether a constabulary police can be a useful addition to policing capacity within a peace operation is lacking.95 Assessments tend to be anecdotal and related to specific cases. Differences in domestic security needs and approaches mean that constabulary police units vary widely from country to country in terms of training and structure. Hansen maintains the constabulary police in Bosnia and Herzegovina did not accomplish much, but acknowledges that planners valued the constabulary police well enough that they not only included, but also enhanced its role in NATO and UN Kosovo operations.96 Perito, offers a counterpoint to this view by suggesting that NATO commanders did not understand the capabilities of the constabulary police, and thus did not properly utilize them.97 Hansen acknowledges this, noting that the lack of a clear mandate hampered the constabulary police operations in Bosnia and Herzegovina, and further maintains that the overlap between NATO and UN constabulary police units in Kosovo suggests that NATO and the United Nations

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still do not completely understand the gap that the constabulary police should fill in a peace operation. Finally, Hansen notes that constabulary police have created problems within peace operations by clashing with the regular CivPol over methods and authority, and/or engaging in different sorts of training of local police capacity. An example of the latter problem is Haiti and Somalia, where Italian Carabinieri and French Gendarmerie police introduced constabulary police training, which lead local police away from the previous community police training.98 The argument for deploying constabulary police in peace operations Nevertheless, by looking at the nature and progression of most postconflict situations with a peace operation, it is possible to see how the constabulary police can enhance the international police component of an operation. The Swedish government appointed a special commission to look at the role of civilian police in international peace operations, and the special commission delivered a report in June 1997 entitled Police in the Service of Peace. The report’s concluding chapter contained a number of important observations and recommendations. One notable contribution is a discussion of the different phases of conflict. As the Appendix shows, these phases can overlap in terms of tasks, and can require participation from more than one agent/sector. More importantly, the report illustrates when the constabulary police can be useful. As the report notes, there is a phase between the need for heavy military capacity and the need for ordinary policing where some combination of the two is necessary.99 Dziedzic has expanded upon this, by referring to an “inner shell” and an “outer shell” for public security during a peace operation.100 UN CivPol, possibly in conjunction with local police, provides the inner shell. The military, in a “rapid reaction mode,” provides the outer shell of security. Dziedzic describes an “enforcement gap” that occurs when the peace operation must confront activities that fall between the inner and outer shells.101 Serious threats to law and order, including the actions of potential spoilers to the peace, can challenge the peace operation because the response may fall outside the capabilities of either the CivPol or the military. As stated earlier, CivPol are ordinary police, and thus, even if armed, are not equipped to deal with heavily armed elements seeking to destroy the peace process or just loot and pillage. Likewise, a military response would generally involve the use of overwhelming force, which could negatively influence the local consent of the populace for the overall peace operation. Therefore, a constabulary police capacity can be beneficial to a peace operation.102 Call and Barnett discuss the benefit of a constabulary police capacity in detail.103 Since military forces are generally not trained or inclined to engage in policing, unarmed or lightly armed CivPol could easily get into situations that pose significant danger to their safety. Therefore, recognizing that constabulary police are trained not only in policing but also military tactics, and can deploy as a unit with greater capacity to deal with dangerous armed elements, they suggest that

Postconflict security gap 265 constabulary police could respond to public security threats that might overpower ordinary police, but that do not require a military “overwhelming force” response.104 Therefore, constabulary police should be utilized during the initial and transitional stages of a peace operation, as well as during the later peace-building phase where institutional capacity is created.105 Rausch discusses specific areas where constabulary police deployments could address the problems that the current UN system for CivPol creates.106 Because of the short rotations for CivPol in peace operations (often just six months) and the diversity of policing backgrounds, operations usually give a short shrift to the critical areas such as war crimes, crimes against humanity, and organized crime. These areas require specially trained and equipped police, deployed for longer periods, and provided with adequate guidelines and procedures.107 As described earlier, constabulary police are formed units with special training, and deploy with guidelines and procedures already developed for many of the situations that Rausch discusses.108 In fact, Dziedzic notes that one constabulary police force, the Italian Carabinieri, has experience dealing with the Mafia, and was therefore highly useful in working to combat political violence and organized crime in Kosovo.109 Dziedzic also states that when dealing with politically motivated violence, orchestrated civil disturbances are also common, thus requiring the riot control training and experience that the constabulary police often have.110 As for deploying a constabulary police unit for a year or more, this remains a matter of political will within the sending country; no small matter, but not impossible.

Constabulary police and the EU A review of EU member states constabulary police capacities Having argued that the constabulary police can benefit peace operations, the discussion then turns to the EU’s potential role. Only certain EU countries possess constabulary police. In fact, most of the world’s constabulary police forces are modeled after the French Gendarmerie, which is military in character and answers to the French Ministry of Defense. The French Gendarmerie is comprised of two divisions: the Departmental Gendarmerie and the Mobil Gendarmerie, and has a total complement of around 85,000 police officers. The Departmental Gendarmerie is responsible for law enforcement in rural areas and small towns, and the Mobil Gendarmerie serves as a reserve police force to maintain public order and to deal with serious civil disturbances or other emergencies. During peacetime, much of the Gendarmerie’s work focuses on routine police work, including administrative policing, traffic control, and judicial investigation. The Gendarmerie is heavily involved internationally: it works under the auspices of NATO and the United Nations, and cooperates with Europol and other constabulary police forces in the EU, Eastern Europe, and some African countries. The Gendarmerie has a long history of working in peace operations, from Haiti to the former Yugoslavia.111

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Another country with a significant constabulary police force is Italy. The Italian Carabinieri is part of the Italian armed forces and reports to the Ministry of Defense on military matters. On issues of domestic public order, the Carabinieri reports to the Ministry of the Interior. Some tasks of the Carabinieri include criminal investigation, border patrol, and riot control. The Carabinieri also has extensive experience with international peace operations.112 There are roughly 120,000 police officers in the Carabinieri.113 The third country with a large constabulary police force is Spain. The Spanish Guardia Civil is one of the three main police forces in Spain, is an organ of the Ministry of Internal Affairs, and has both civilian and military capabilities. The total number of police serving in the Guardia Civil is around 65,000. The primary mission is to provide public order and security within Spain’s borders, including rural and traffic patrols. Other tasks include airport, border, coastal, and port security. In wartime or peacekeeping missions, the Guardia Civil serves with the armed forces as a military police. The Guardia Civil is serving in the former Yugoslavia with NATO, and has served in other peacekeeping missions.114 Other EU countries have smaller constabulary police forces. One example is the Netherlands. Nearly 4,500 men and women make up the Netherlands Royal Marechaussee (Constabulary), and, while subordinate to the Ministry of Defense, it performs police work, including riot control and other assistance to the State and Municipal Police. In addition to working with civilian police, the Marechaussee provides security for the Royal Family, the Prime Minister, and the Schiphol airport; serves as the military police for the armed services; and has served in peace operations.115 EU constabulary police in BiH The history of European constabulary police deployments to peace operations illustrates both the difficulties and benefits from such deployments. In June 1998, the NATO force in Bosnia-Herzegovina was continued indefinitely, keeping the name “SFOR,” but with a new, smaller structure. Included in this new structure was a Multinational Specialized Unit (MSU), which was meant to fill the security gap between SFOR and the UN police mission. NATO primarily used the MSU for crowd control and to protect returning refugees, ensuring the right of return provided for in the Dayton Accords. NATO members meant to draw the MSU from European constabulary police forces, but only Italy volunteered forces, from the Carabinieri. This required NATO to recruit additional police forces from nonNATO countries. It took NATO eight months to get sufficient contributions of appropriate police, train them, and deploy the first MSU to BiH. NATO never deployed a second MSU because of the lack of personnel.116 For Italy, providing personnel for the MSU was a way to increase its status within NATO. NATO leaders had also apparently been impressed with the Carabinieri’s performance in Operation Alba in Albania. France and Spain were less forthcoming. France opposed the MSU concept, feeling it was a way for the United States to pass responsibilities to Europe, and was concerned that the new

Postconflict security gap 267 units would face serious risks as they performed their duties. Spain, on the other hand, was largely positive about the MSUs. However, an intensive struggle against Basque separatist groups occupied the Guardia Civil, and the Spanish government decided to opt out of the MSUs. The United Kingdom was against the MSUs – the experience of British troops in Northern Ireland meant that they were accustomed to dealing with civil disturbances, and the government therefore felt regular troops were capable of handling the MSU mission.117 Countries raised concerns about the MSUs during NATO meetings and briefings. CivPol experts identified the need to recruit constabulary police forces from already formed and fully integrated units in a limited number of countries with similar policing traditions and philosophies. They also stressed the need for clear rules of engagement for the MSUs, and to define clearly the relationship between the MSUs, the SFOR, and the UN police mission. An advance mission of Carabinieri officers discovered a serious lack of understanding with NATO military officers about the potential role of constabulary police in a peace operation, as well as a general confusion about what were the constabulary police forces. This was particularly true for military officers from the United States and Northern Europe, which generally had little experience with such police. The Carabinieri expected that the MSU would be patrolling widely, interacting with civilians, and looking for potential trouble spots. NATO officers seemed to expect that the MSU would sit in the barracks and wait for a crisis. Meanwhile, the United Nations saw the MSU as a vote of no confidence in the UN police mission.118 In the early weeks of the MSU’s presence in BiH, the NATO officers’ unfamiliarity with constabulary police led to the misuse of the MSU during a civil disturbance and a resulting failure to resolve the crisis in as peaceful a manner as possible. This led to revised guidelines for NATO forces, giving the MSU officers command during civil disturbances. NATO dealt with the subsequent riots and protests more successfully. This was in marked contrast to the earlier riots that NATO dealt with. These incidents had featured the pullback of NATO forces to avoid using overwhelming military force, creating a serious “loss of face” problem for NATO. When allowed to operate properly, MSU officers would seek to identify and address the cause of the civil disturbance. The MSU officers were usually successful, leading to more peaceful or nonlethal resolutions of the disputes that caused the protests. The MSU also assisted with efforts to address organized crime in BiH and terrorist activities. The MSU was again generally successful when allowed to operate according to its training and procedures, although there were some serious incidents when SFOR did not properly back the MSU during certain operations against organized crime.119 EU constabulary police in Kosovo In his July 1999 report to the Security Council at the start of the UN Interim Administration Mission in Kosovo, UN Secretary-General Kofi Annan stated that UNMIK police would have 4,700 CivPol members divided into three elements.

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The force would include 10 Special Police Units of 115 officers each drawn from national constabulary police forces of member states. These formed units would operate as coherent national units and arrive with their own weapons, equipment, transportation, and communications capabilities. The SPUs would serve alongside 1,800 CivPol and 250 professional border police. Despite this plan, CivPol for UNMIK deployed very slowly. The SPUs did not begin arriving until April 2000, nine months after the mission began. The last of the SPUs arrived in Kosovo in 2002. The United Nations had expected that EU countries with constabulary police would provide the SPUs. Instead, EU countries sent their constabulary police to serve with NATO. The United Nations eventually got most of the UNMIK constabulary police from Eastern Europe or elsewhere in the world. These units were generally of lower quality than comparable EU constabulary police units, thus requiring the United Nations to do longer and more extensive training prior to activation.120 At the same nine-month mark, the regular CivPol component of UNMIK was only at 40 percent strength, which meant that there was not enough police capacity in Kosovo for months to deal with the serious public security and law and order issues that confronted NATO and the United Nations from day one of the mission.121 NATO, for its part, planned for an MSU within KFOR, the military force in Kosovo. The Kosovo MSU would be modeled on the MSU from BiH. Italy was again the lead nation for the MSU in Kosovo, joined by France and Estonia. The stand-alone MSU in Kosovo had 277 Italian Carabinieri, 51 French Gendarmerie, and 23 Estonian military police. As part of KFOR, the MSU operated under NATO rules of engagement, meaning that unlike the UNMIK CivPol and Special Police Units, the KFOR MSU did not have executive policing authority. The results were misunderstandings and clashes between all three police forces. The MSU would often arrest individuals without following the UNMIK criminal procedure code, which led to the collection of evidence inadmissible in court. The UNMIK SPUs were reluctant to cooperate with the NATO MSU due to problems with the NATO chain of command. Insufficient support from UNMIK, problems with command and control, and the uneven quality of police serving in the SPUs also confronted the SPUs. UNMIK officers from the United States and northern European countries often commanded the SPUs, which meant again that the lack of familiarity with constabulary police led to the ineffective use of the SPUs after they were finally deployed. The United Nations was also reluctant to use the SPUs in situations where civilian casualties might result, even though such situations were what constabulary police were trained for and best able to deal with in a way that was most likely to avoid casualties. NATO commanders, meanwhile, preferred to call upon the MSU or other NATO police forces rather than deal with outside command structures and the United Nations, even when SPUs were more readily available. 122 Even with all these obstacles, the SPUs and MSU were eventually successfully used for static guard duty, special events security, border patrol, high-risk arrests, election security, and the protection of VIPs, international judges and prosecutors, and others. The constabulary police units in Kosovo, whether part of NATO

Postconflict security gap 269 forces or part of UNMIK, were critical to restoring law and order, combating organized crime, and responding to civil disturbances. But the experience in Kosovo, like in BiH, also pointed to the need for better cooperation and communication and far more understanding among all parties of the capabilities of constabulary police.123 Some concerns about EU police capacity Aside from concerns noted earlier, another key question for the future is whether the EU’s overall constabulary police capacity is more than the sum of its parts. This will require a thorough assessment of the training programs of the different constabulary police forces, and the outcomes of previous deployments of constabulary police to peace operations, particularly where constabulary police forces from multiple nations serve together.

Other ideas for enhancing capacity Creation of a permanent UN CivPol capacity Little has been written about the idea of creating some sort of permanent or standing CivPol capacity at the international level. Two options from opposite ends of the spectrum stand out – a police reserve system and a full-fledged standing police force – but any eventual solution could easily fall somewhere in the middle. A UN civilian police reserve force The technical details of how to configure a CivPol Reserve Force/Standby Roster are not necessary. Overall, it seems likely that there would be some way to identify police officers with the capabilities and willingness to serve in international peace operations. In the United States, these officers could come from city, state, and local police departments. The Department of Defense could also identify personnel in the military reserve system with appropriate policing skills.124 They would join a CivPol Reserve Force or be added to a CivPol Standby Roster, and would be required to undergo training. Training would presumably include both a longer initial training course and periodic updates. The creation of a reserve police force for CivPol duties in police operations would have several useful benefits. It would most likely include police officers that had served with distinction on past CivPol missions. There would be more time to both assess the qualifications of police officers who would become UN CivPol officers and train CivPol recruits for the requirements of the policing environment in a peace operation. On the other hand, significant numbers of retired police officers would probably compose such a force. The US policy of using retired police, through a private contractor, has resulted in a very uneven quality of personnel.125 It also remains to be seen how well this would overcome the political will problem, if at all.

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A permanent standing UN police force The creation of a standing CivPol force at the United Nations could take shape in many different ways. One promising option is to have a core standing capacity of several hundred police officers with diverse language skills and well-trained for international peace operation CivPol duties, which could rapidly deploy to a new peace operation. The force could even provide some emergency law enforcement capacity, provided that appropriate military forces backed it up. National CivPol contingents would support and gradually replace this small standing police force.126 A standing UN CivPol capacity would have several advantages. First, it would lessen the policing burden currently placed on military deployments to peace operations. Such a force could better address the public security gap. It might also cultivate a core group of experienced CivPol officers for future peace operations. On the other hand, deploying unarmed or lightly armed CivPol officers pose some danger. CivPol could come under attack by spoilers to the peace, for instance. One means to resolve this dilemma would be to incorporate constabulary police units with the mission, as such units could respond more effectively to riot situations and other cases of civil disorder, and could address problems with organized crime more effectively.127 Another argument for a standing UN CivPol force is that it would largely avoid the political will problem. Member states would not have to be concerned with the deployment of their own national citizens via a mission for which they did not necessarily sign up. The United Nations would be sending UN employees to do the work, which are all people who volunteered for the job.

Conclusion The key limitation on fixing the capacity problems concerning policing in postconflict settings is the lack of political will, and the Brahimi Panel noted the importance of political will to successful reform efforts. A lack of political will on the part of member states will doom any reforms to failure, just as the lack of political will can doom an entire peace operation. The essence of the lesson from the peace operations of the past decade should be that in nearly every instance where an operation is mounted to address a failed state, peace must be imposed or the operation should not be started in the first place. There will always be those that spoil the peace, and the United Nations cannot expect that all parties will fully cooperate with a peace operation’s mandate, regardless of the agreements signed. The need to impose the peace correspondingly means that the peace operation will require robust military forces, robust law enforcement capacity, and a long-term and costly commitment. Precious few member states appear willing to support such operations, except in rare cases, and even those cases fail to receive the attention and support they truly require.

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Appendix128 Category

Tasks

Agent/sector

Category A

Diplomacy, mediation, “presence on the ground”

Diplomats, military observers, police observers Military units

Category B

Repel attackers, separate warring parties, establish buffer zones, monitor ceasefires, monitor/assist with the disarmament and demobilization of combatants, de-mining efforts, guard arms depots Category C Control riots, intervene against (Grey armed “gangs,” maintain civil Zone) law and order, discover and prevent crimes including looting, maintain public security during elections, monitor and assist with disarmament and demobilization efforts, escort civilians in violenceprone areas, protect refugees from armed elements Category D Monitor local police, participate in the training of local police, advise and support the establishment or restructuring of new local police capacities Category E Assist in caring for refugees/displaced peoples, integrate former combatants into civilian life, promote repatriation of refugees/displaced peoples, provide humanitarian assistance, support rebuilding of judicial and penal systems, human rights monitoring, monitor elections, postconflict reconstruction

Military units and CivPol in cooperation, or constabulary police and military units in cooperation

CivPol and other judicial system experts

Civilian experts, including NGOs and CivPol in some cases

Notes 1 Boutros Boutros-Ghali, An Agenda for Peace. New York: UN, 1995, p. 32. 2 Ho-Won Jeong, Peace and Conflict Studies: An Introduction. Burlington, VT: Ashgate, 2000, pp. 24–25. 3 Espen Barth Eide and Tor Tanke Holm, “Introduction,” in Tor Tanke Holm and Espen Barth Eide (eds.), Peacebuilding and Police Reform. London: Frank Cass, 2000, p. 3. 4 Erwin A. Schmidl, “Police Functions in Peace Operations: An Historical Overview,” in Robert B. Oakley, Michael J. Dziedzic, and Eliot M. Goldberg (eds.), Policing the New World Disorder: Peace Operations and Public Security. Honolulu, HI: University Press of the Pacific, 1998, p. 19. 5 United States Marine Corps, Small Wars Manual. Manhattan, KS: Sunflower University Press, 1940. 6 Robert Perito, The American Experience with Police in Peace Operations. Cornwallis Park, Canada: The Canadian Peacekeeping Press of the Pearson Peacekeeping Centre, 2002, pp. xiii, xv.

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7 “Managing Security Challenges in Post-Conflict Peacebuilding,” an International Peace Academy Report, June 2001, Wilson House, Ottawa. 8 Perito, American, 4. 9 Perito, American, 1. 10 Harry Broer and Michael Emery, “Civilian Police in UN Peacekeeping Operations,” in Robert B. Oakley, Michael J. Dziedzic, and Eliot M. Goldberg (eds.), Policing the New World Disorder: Peace Operations and Public Security. Honolulu, HI: University Press of the Pacific, 1998, p. 367. 11 John McFarlane and William Maley, “Civilian Police in UN Peace Operations: Some Lessons from Recent Australian Experience,” in Ramesh Thakur and Albrecht Schnabel (eds.), United Nations Peacekeeping Operations – Ad Hoc Missions, Permanent Engagement. New York: UN University Press, 2001, p. 186. 12 Ibid., p. 9. 13 Ibid., p. 2. 14 Broer and Emery, p. 368. 15 Perito, American, p. 9. 16 Halvor Hartz, “CIVPOL: The UN Instrument for Police Reform,” in Tor Tanke Holm and Espen Barth Eide (eds.), Peacebuilding and Police Reform. London: Frank Cass, 2000, pp. 28–31. 17 Chuck Call and Michael Barnett, “Looking for a Few Good Cops: Peacekeeping, Peacebuilding and CIVPOL,” in Tor Tanke Holm and Espen Barth Eide (eds.), Peacebuilding and Police Reform. London: Frank Cass, 2000, p. 43. 18 Michael O’Connor, “Policing the Peace,” in Ramesh Thakur and Albrecht Schnabel (eds.), United Nations Peacekeeping Operations – Ad Hoc Missions, Permanent Engagement. New York: UN University Press, 2001, p. 60. 19 Eide and Holm, “Introduction,” p. 4. 20 Perito, American, p. xv. 21 Broer and Emery, p. 374. 22 Call and Barnett, “Looking for a Few Good Cops,” p. 51. 23 Perito, American, p. xvi. 24 Broer and Emery, pp. 374–375. 25 Ibid., p. 375. 26 Ibid. 27 Ibid., p. 377. 28 Ibid., pp. 379–380. 29 Ibid., p. 379. 30 Perito, American, p. xvi. 31 James A. Schear and Karl Farris, “Policing Cambodia: The Public Security Dimensions of UN Peace Operations,” in Robert B. Oakley, Michael J. Dziedzic, and Eliot M. Goldberg (eds.), Policing the New World Disorder: Peace Operations and Public Security. Honolulu, HI: University Press of the Pacific, 1998, pp. 82–85. 32 Broer and Emery, p. 385. 33 Perito, American, p. 61, and Perito, George Mason University lectures in 2003. 34 Hartz, “CIVPOL: The UN Instrument,” p. 30. 35 Kimberly C. Fields and Robert M. Perito, “Creating a Force for Peace Operations: Ensuring Stability with Justice,” Parameters 32 (No.4), 77 (Winter 2002). 36 William Lewis, Edward Marks, and Robert Perito, Enhancing International Civilian Police in Peace Operations, a USIP Report from April 22, 2002. 37 William Lewis and Edward Marks, Police Power in Peace Operations – Civilian Police and Multinational Peacekeeping: A Workshop Series, April 1999, Center for Strategic and International Studies, pp. 17–18. 38 McFarlane and Maley, p. 191. 39 Broer and Emery, pp. 380–381. 40 Perito, American, p. xvi.

Postconflict security gap 273 41 42 43 44 45 46 47 48 49 50 51 52 53 54

55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77

Broer and Emery, p. 383. McFarlane and Maley, pp. 193–199. Hartz, “CIVPOL: The UN Instrument,” p. 39. McFarlane and Maley, p. 193. Charles T. Call and William Stanley, “Protecting the People: Public Security Choices After Civil Wars,” Global Governance 7 (No.2) 151 (April–June 2001), and Robert Perito, George Mason University lectures in 2003. Accountability refers to the ability to hold CIVPOL responsible for any inappropriate or illegal behavior. Call and Barnett, “Looking for a Few Good Cops,” p. 51. Column Lynch, “Misconduct, Corruption by U.S. police mar Bosnia Mission,” The Washington Post (May 29, 2001). Policing the Police in Bosnia: A Further Reform Agenda, a Report by the International Crisis Group, May 10, 2002. Robert Perito, George Mason University lectures in 2003. Call and Stanley, “Protecting the People.” Call and Barnett, “Looking for a Few Good Cops,” p. 49. Call and Stanley, “Protecting the People.” William Stanley and Robert Loosle, “El Salvador: The Civilian Police Component of Peace Operations,” in Robert B. Oakley, Michael J. Dziedzic, and Eliot M. Goldberg (eds.), Policing the New World Disorder: Peace Operations and Public Security. Honolulu, HI: University Press of the Pacific, 1998, p. 139. Perito, American, pp. 91–92. Call and Stanley, “Protecting the People.” Broer and Emery, pp. 388–395. Perito, American, p. 97. See the Report of the Panel on UN Peace Operations, August 21, 2000. A/55/305-S/ 2000/809. Perito, American, pp. 98–99. McFarlane and Emery, p. 183. Perito, American, p. 99. UNDPKO website, civilian police section. Perito, American, p. 99. See work produced by the Henry L. Stimson Center Future of Peace Operations program, specifically The Brahimi Report and the Future of UN Peace Operations, December 2003, by William J. Durch, Victoria K. Holt, Caroline R. Earle, and Moira K. Shanahan. From staff members of the Henry L. Stimson Center, discussed at Partnership for Effective Peacekeeping Operations forums in 2003 and 2004. Perito, American, p. 103. Ibid. Ibid., pp. 103–104. Lewis, Marks, and Perito, USIP Report. Ibid. Michele Flournoy and Michael Pan, “Justice and Reconciliation,” a paper from the Post-Conflict Reconstruction Project of the Center for Strategic and International Studies and the Association of the U.S. Army. Robert Perito, lectures, George Mason University, 2003. Daniel S. Hamilton, “What is Transformation and What Does it Mean for NATO?,” in Daniel S. Hamilton (ed.), Transatlantic Transformations: Equipping NATO for the 21st Century. Washington, DC: Center for Transatlantic Relations, 2004, p. 6. Ibid. Fields and Perito, “Creating a Force,” p. 80. European Union, “Foreign and Security Policy” [available online at http://europa.eu.int/pol/cfsp/] (last accessed April 2005) and “Conflict Prevention &

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78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95

96 97 98 99

100 101 102 103 104 105 106

107 108

Peter H. Gantz Civilian Crisis Management” [available online at http://europa.eu.int/comm/ external_relations/cpcm/] (last accessed April 2005). European Commission Conflict Prevention and Crisis Management Unit, “Civilian instruments for EU crisis management,” May 2003. European Union, “Bosnia and Herzegovina – EU Police Mission (EUPM)” [available online at http://ue.eu.int/eupm/homepage/] (last accessed May 2005). European Union, “ ‘Proxima’ Mission,” [available online at http://ue.eu.int/pesd/ proxima/]. Ibid. Jean-Yves Haine, “ESDP: an overview,” Institute for Security Studies [available online at http://www.iss-eu.org/]. Dov Lynch and Antonio Missiroli, “ESDP Operations,” Institute for Security Studies [available online at http://www.iss-eu.org/] (last accessed April 2005). Robert Perito, Where is the Lone Ranger When We Need Him? America’s Search for a Postconflict Stability Force. Washington, DC: US Institute of Peace, 2004, p. 33, quoting Charles Moskos, Jr. Schmidl, “Police Functions in Peace Operations,” p. 22. Ibid. Perito, Lone Ranger, pp. 33–34. Ibid., p. 35, referencing Hills. Perito. Ibid., p. 37. Ibid., p. 46. Ibid., p. 34. Rama Mani, “Contextualizing Police Reform: Security, the Rule of Law and PostConflict Peacebuilding,” in Tor Tanke Holm and Espen Barth Eide (eds.), Peacebuilding and Police Reform. London: Frank Cass, 2000, pp. 9–11. Call and Barnett, “Looking for a Few Good Cops,” p. 45. Annika Hansen, “Civil-military Cooperation: The Military, Paramilitaries and Civilian Police in Executive Policing,” in Renata Dwan (ed.), SIPRI Research Report No. 16 – Executive Policing: Enforcing the Law in Peace Operations. Oxford: Oxford University Press, 2002, pp. 71–72. Ibid. Perito, Lone Ranger, p. 149. Hansen, “Civil-military Cooperation,” p. 77. Nils Gunnar Billinger, “Report of the Special Swedish Commission on International Police Activities,” in Robert B. Oakley, Michael J. Dziedzic, and Eliot M. Goldberg (eds.), Policing the New World Disorder: Peace Operations and Public Security. Honolulu, HI: University Press of the Pacific, 1998, p. 458. Ibid. Ibid. Michael Dziedzic, “Introduction,” in Robert B. Oakley, Michael J. Dziedzic, and Eliot M. Goldberg (eds.), Policing the New World Disorder: Peace Operations and Public Security. Honolulu, HI: University Press of the Pacific, 1998, p. 11. Call and Barnett, “Looking for a Few Good Cops,” p. 53. Ibid. Ibid. Colette Rausch, “The Assumption of Authority in Kosovo and East Timor: Legal and Practical Implications,” in Renata Dwan (ed.), SIPRI Research Report No. 16 – Executive Policing: Enforcing the Law in Peace Operations. Oxford: Oxford University Press, 2002, pp. 11–32. Ibid. Michael Dziedzic, “Policing from Above: Executive Policing and Peace Implementation in Kosovo,” in Renata Dwan (ed.), SIPRI Research Report No. 16 – Executive

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109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124

125 126 127 128

Policing: Enforcing the Law in Peace Operations. Oxford: Oxford University Press, 2002, p. 42. Ibid. Ibid. Perito, Lone Ranger, pp. 37–39. Ibid., pp. 39–40. The Carabinieri website [available online at http://www.carabinieri.it/ind_ita.htm] (last accessed May 2005). Perito, Lone Ranger, pp. 42–44. Ibid., pp. 40–42. Ibid., pp. 141–142. Ibid., pp. 143–144. Ibid., pp. 146–149, 155. Ibid., pp. 164–180. Perito, American, pp. 90–91, and Robert Perito, George Mason University lectures in 2003. Eide and Holm, “Introduction,” p. 213. Perito, Lone Ranger, 183–235. Ibid. Robert B. Oakley and Michael J. Dziedzic, “Conclusions,” in Robert B. Oakley, Michael J. Dziedzic, and Eliot M. Goldberg (eds.), Policing the New World Disorder: Peace Operations and Public Security. Honolulu, HI: University Press of the Pacific, 1998, p. 532. Call and Stanley, “Protecting the People.” Call and Barnett, “Looking for a Few Good Cops,” p. 52. Ibid., 53. Swedish Commission on International Police Activities, “Considerations, Estimates, and Proposals: The Need for Guidelines for Police Work” in Robert B. Oakley, Michael J. Dziedzic, and Eliot M. Goldberg (eds.), Policing the New World Disorder: Peace Operations and Public Security. Honolulu, HI: University Press of the Pacific, 1998, pp. 465–467.

14 Africa’s security dilemma National stability versus world security Marcel Kitissou

Introduction Studying the security dilemma of Africa reminds one of two different works: Michel Foucault’s Archeology of Knowledge: layers of sediments are so distinct that one can easily observe the dividing lines; and Leo Hamon’s Acteurs et données de l’histoire (actors and givens of history): there are no permanent determining factors in historical evolution as it depends on the place and the time. Therefore, a central issue in one conflict may be secondary in another, and vice versa. Perhaps the best way to address “Africa’s security dilemma: national stability versus world security” is to describe it as an evolving contradiction between different social temporalities, that is, between the pace of the world and the situation at a particular location. This chapter discusses four themes: (1) the traditional role of Africa in international security; (2) how France reacted to what it perceived as threats to its interests in Africa during the two decades following the independence of its colonies; (3) US security policy in Africa, particularly after September 11, 2001; and (4) Africa’s own efforts.

Africa’s traditional roles Africa has five traditional roles in international relations as follows: (1) a physical mass; (2) a protector of sea-lanes; (3) a launching pad for attacks against other countries; (4) a holder of mineral and human resources; and (5) a surrogate terrain for foreign states. Physical mass The continent is a physical mass that is caught in the struggle between the Arab/Muslim world and the European-dominated world. It is a resting place on the way to somewhere else that both worlds consider more important. Sea-lanes States use the continent for defensive bastions to protect sea-lanes heading elsewhere, particularly the eastern and western ends of the Mediterranean and

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the Cape. For example, the French conquest of Algeria and protectorate over Morocco and the presence of the British in Egypt and South Africa were due, in part, to these countries’ strategically located waterways. Another example is the role of Africa vis-à-vis the Middle East in the Second World War: “the U.S. Air Transport Command flew supplies from the continental United States via an extended route including typically stops in the Caribbean, Natal (Brazil), Ascension, Dakar, Kano, Khartoum, and Cairo to eventual destinations in the Middle East or even South Asia.”1 A more recent example is the “Operation Urgent Fury” that took place on October 25, 1983 when 1,900 US-led forces (including 300 from Antigua, Barbados, Dominica, Jamaica, St. Kitts-Nevis, St. Lucia, and St. Vincent) invaded the island-state of Grenada, a Caribbean island of 110,000 people, which is 21 miles long and 10 miles wide; the occupying forces amounted to 65,000 troops the following day. Cuban workers, under the guise of providing tourism structures, were building a 9,000-foot runway capable of receiving (Soviet) military planes. Before then, “Ocean Venture” maneuvers, from August 1 to October 15, 1981, involved more than 120,000 troops in the Caribbean basin, with 250 ships and 1,000 aircrafts from 14 countries, including Argentina, Uruguay, Venezuela, and Colombia, in addition to NATO members. A joint report of the State Department and the Department of Defense, dated December 1983, remarked that [t]he airport at Port Sabines was scheduled to be inaugurated on March 13, 1984. With a operational 9,000-foot runway under Cuban/Soviet control, MIG 23s from Cuba and Grenada would have overlapping ranges covering the entire Caribbean. And while in peacetime it would have been used for tourism, the runway also would have facilitated Cuban air support for its 40–50,000 personnel in Africa, and Libyan and Soviet bloc flights to Central America. Had the Point Sabines airport been operational in April 1983, for example, the Libyan airplanes detained in Brazil while clandestinely ferrying a cargo of military supplies to Nicaragua could have carried out their mission by refueling in Grenada.2

Launching pad Many states use Africa as a platform for attacks against other territories. In the past, piracy represented a Muslim response to Christian domination of Mediterranean commerce; the response required firm control of the North African littoral. In WWII Germany and Italy sought to use their North African holdings to interrupt Allied Mediterranean communications, and in turn the allied used North Africa as a launching pad for their conquest of Italy and further advance into Germany itself. . . . With the upcoming of the Cold War, the

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Marcel Kitissou United States annexed North Africa to the rim-land as part of its strategy of containing the Soviet Union. Hence, in the 1950s, the U.S. constructed four air bases in Morocco and built a major strategic base, Wheelus Field, in Libya and a substantial communication and electronic intercept station in Ethiopia.3

States considered smaller facilities from European allies a backup for NATO. Strategic resources Africa contains precious natural and human resources. In the First World War, 188,000 West Africans fought in France. The British raised 470,000 African troops in the Second World War; some 100,000 of them were involved in the Burma campaign. And the British used a smaller number to put down riots and strikes in France in the time between the two world wars. Minerals have been exported from South Africa since the 1880s, but it was only since the Second World War, when uranium from the Belgian Congo helped fuel the Manhattan Project, that African minerals became a crucial strategic resource for the West. The advance of military technology may have decreased African geostrategic importance, but the advance of industrial technology has increased its importance. Surrogate terrain Finally, the continent is a place where great powers and other external forces compete without bearing the consequences of their wars. In the process, countries pay more attention to rivals than to the realities of the continent. 4

The African scene/reaction Locally, the people have lacked the capacity to defeat the forces projected onto the continent in spite of African nationalism, that is, a certain level of indigenous political activities. Some groups resisted great powers’ incursions. Others tried to use them to their advantage in local power struggles, often playing one outside power against another. Africa, in general, has been subject to various geostrategic calculations that take little account of the continent’s realities. After the Second World War, the United States accommodated, if not encouraged, African nationalism in order to maintain the new African states within a broad Western sphere of economic dominance. The United States tolerated a few ideological discourses such as African socialism and positive neutralism. Nonetheless, during the Cuban missile crisis, when the Soviets sought to use the airfield of Guinea for transit stops, the United States had Sékou Touré close it. Similarly, when President Johnson was afraid that the island of Zanzibar would become another Cuba, he advised Julius Nyerere to integrate it into what is now Tanzania.

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The relationships with the southern African nationalistic groups are more complicated. The United States and other European powers have also accommodated white nationalist power. Their relationship with black nationalists was only symbolic. Portugal was trading American complacency to its colonial rule against leasing to the United States naval and air facilities on the Azores islands (in 1967 and 1973, the Azores islands served as critical transit points for resupplying Israel).

France In and following the period of decolonization, the French had to respond to three menaces: communism’s expansion, US complacency with African nationalism (late 1950s and early 1960s), and Muslim fundamentalism (from 1970 to the 1980s). Since the end of the formal colonial empire, the French strategy has been to maintain control over the African “Plateau de Pratzen,”5 a rectangle whose angles include Tangier and Tunis in the North, and Duala and Dakar in the South. This space is a synthesis of Western, Arabic, and African civilizations, and an integration of Christian, Muslim, and traditional African religions. Countries can use the space to control the western basin of the Mediterranean and the narrowest part of the Atlantic Ocean, between Africa and South America. In the hypothesis of a conventional Third World War, within the first three days, around 800 war ships would concentrate in front of Dakar (the 1982 Falklands war demonstrated the usefulness of this plateau). And in crises, this platform is a convenient position at the heart of Africa and is a respectable distance from potential enemies. Within the African Plateau de Pratzen, France created the “Strategic Zone of Central Africa” in 1959 (covering all the then French colonies in sub-Saharan Africa).6 This defense policy was both weapons-based and non-weapons-based (economie des forces, stratergie de non-bataille). Regarding the latter aspect, countries perceived the mid-1970–1980s migration from the Middle East to be a major menace. Many Lebanese fled their country in the middle of the civil war and settled in sub-Saharan Africa. As recorded in 1983, [o]ver 240,000 (vs. 200,000 French nationals) Lebanese live in sub-Saharan African; half of them are Shiite. The community is strongly concentrated in a few countries: ● ● ● ● ● ● ● ●

120,000 in Ivory Coast, among them 70,000 Shiites 3,000 in Gabon, the majority of whom are Shiites 20,000 in Sénégal, 18,000 being Shiites 3,500 in Zaire, all Shiites 27,000 in Sierra Leone, with 15,000 Shiites 50,000 in South Africa 15,000 in Nigeria in some countries such as Central Africa, Cameroon and Congo, Lebanese communities were very small but extremely active.7

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In a note dated on August 10, 1988, the French Minister of Foreign Affairs complained: Socially, Lebanese Shiites do not look differently from Lebanese of other religious convictions. They are particularly active in services domain. They have their convenient complicities within local administrations and among people in leadership positions, whereby they develop an economic influence. Lebanese communities are not interested in local politics. At most they try to influence decisions likely to have an impact on policies of public investments, customs policies . . .8 The real problem was widespread corruption at the level of implementation leading to administrative failure and, potentially, to the failure of the political system. Eventually, countries such as Gabon encouraged anti-Lebanese xenophobic behaviors. Two examples illustrate this problem. First, the French SDECE (Service de Documentation Exterieur et de Contre-Espionage) deemed that “Sierra Leone has become the turning point of Teheran’s covert activities.”9 The country had a population of 3.8 million and 25,000 of those were “Lebanese,” that is, true Lebanese and descendents. The leader of Amal movement in Lebanon, Nabhi Berrhi, is from the Lebanese community in Sierra Leone. The Palestine Liberation Organization held office in Freetown. According to SDECE, Yassir Arafat offered US$800 million to the government in order to receive authorization to open a training camp for three hundred of his combatants in the island of Banana. At the last moment, the project was cancelled. General Momoh, the President, was either convinced or scared to see warriors installed at a distance of just an hour of helicopter flight from the capital city. In the 1960s, the transformation of French colonial armies into local national armies took place within the context of seven defense agreements (Centrafrica, Cameroon, Djibouti, Gabon, Ivory Coast, Senegal, Togo) and 22 military technical assistance with a number of former colonies, including the Belgian Zaire, Burundi, and Rwanda. As a result, France has been able to secure, practically, the Strategic Zone of Central Africa for itself.

The United States In the 1960s, the United States phased out its military bases in North Africa. But the Cuban intervention in Angola in the mid-1970s rekindled competition with the Soviet bloc. By the end of the 1970s, the United States gave logistical support to France during its intervention in the former Zaire as part of the politics of containment. The Clinton administration put in place the African Crisis Response Initiative. Under this initiative, the United States trained some battalions in Nigeria and Senegal for peacekeeping operations. The landscape completely changed after September 11, 2001. In 2002, the United States created a combined Joint Task Force for the Horn of Africa (CJTFHOA). The force is now 1,800 troops strong, and is based in Djibouti. Its tasks

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include joint military exercise with local military forces and a range of civil-military operations such as hospital and school renovation. In June 2003, President Bush announced a US$100 million, 15-month Eastern Africa Counter-terrorism Initiative to expand counterterrorism efforts with Djibouti, Eritrea, Ethiopia, Kenya, Uganda, and Tanzania. The Sahel region is covered by the Pan Sahel Initiative, a State Department program that the Department of Defense and civilian contractors have implemented. The State Department designed the program to assist Mali, Mauritania, Niger, and Chad in border protection. A recently announced Global Peace Operation Initiative calls for “$660 million over the next five years to train, equip and provide logistical support to forces in nations willing to participate in peace operations.”10 By focusing on Africa, the Initiative is building on a State Department program that has provided training assistance since the 1990s, the African Contingency Operations Training and Assistance program. Other strategic designs include parts of Africa such as the greater Middle East stretching from Mauritania to Pakistan (with immediate military and political cooperation in counterterrorism with countries such as Algeria, Egypt, Jordan, Israel, Mauritania, and Tunisia).11 In general, the United States seems to respond only to crisis, and Africa seems to disappear from the Pentagon’s radar screen when the challenge to its primacy fades from the African scene. Maybe the “war without end” on global terrorism will yield a different result. Regardless, the emphasis on military means is overwhelming. The United States is currently planning to establish a half-dozen “low maintenance” bases at airports or remote camps, with up to two hundred US troops stationed at each. Only the US approach to South Africa seems to be more comprehensive. In general, health problems and the HIV/AIDS pandemic are becoming “a strategic” issue affecting security. In South Africa, HIV/AIDS limits the number of troops that the government can deploy. Hence, the US European Command (USEUCOM) has given South Africa US$2.2 billion to study, identify, educate, prevent, and treat and follow-up on HIV/AIDS. “It may be the first holistic approach in the world,” said General Charles F. Wald, the Deputy Commander of USEUCOM. The special treatment of South Africa is due to the United States’s perceived self-interest in developing an African free trade zone in which South Africa would be the key African player.

African peacekeeping efforts Peacekeeping efforts are usually coordinated with the United Nations (AU and ECOMOG), and tend to encounter situations where there is no peace to keep and there are no forces to keep the peace. A recent Carnegie Endowment for International Peace study stated that the international community has been extremely reluctant to intervene decisively in big African states. The same factors that makes these states so dangerous-their size and the resulting particular complexity of their

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Marcel Kitissou problems-also make the idea of intervention daunting. Confronted with conflicts that have caused hundreds of thousands deaths over a long period of time, the international community has offered endless mediation but very little concrete help. Outsiders have also kept aloof from many conflicts in smaller countries, including the 1994 massacres in Rwanda that cost over half a million people their lives. At present, there are some 13,000 UN peacekeepers in Sierra Leone, which has a population of 5.7 million, but only about 10,000 peacekeepers in the DRC, which has a population ten times as large.12

After the African Union launched the Peace Facility Initiative under NEPAD, the European Union, 9 months later, decided to donate 250 million euros (US$300 million) to African peacekeeping operations. According to an EU’s statement, “[T]he move by African countries to donate 15 percent of their allocations from the European Development Fund to the peace facility has helped to boost the drive for improved security.”13

The “prism of pain” Every organized society is a purposeful entity or should be. Such entity is meant to address what scholars like Shibley Telhami call the “prism of pain.” For Jews, it is the holocaust. For African-American, it is slavery. For Africans, independence still means something. As a result, solidarities, old and new, tend to fill that gap at the expense of the state, and leadership tends to cut down their public functions and enhance their personal interests. Hence, this creates the double failure: one failure is administrative (to which we do not pay enough attention) and the other is political (which is usually the collapse of the political system). In comparing Kenya and Somalia, one may conclude that terrorism is more likely to take root in a weak administrative structure than in a collapsed political system. In all cases of conflict, manipulation of identities rationalizes grievances.

Manipulation of identities There are two kinds of identities: essential identity (biological), and existential/ situational and constructed identity (cultural, which is more subject to manipulation). For example, sex is biological, hence essential. Gender is sociological, hence situational and constructed. The so-called ethnic conflicts, in Africa are, in part, a result of political entrepreneurs manipulating situational identities. In communal conflict, combatants try to destroy or dissolve identities in order to break the will of communities. Combatants usually target the identity that is situational and constructed. And, ironically, it is that identity that becomes hardened and acted upon as if it was the essential one. Resistance comes in two forms: some become the village philosophers trying to undo the damage that identity construction has done. Others take weapons. In that particular instance, conflict becomes a process of mutual elimination and quickly reaches a level of intractability and hardening

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of social identities. Socially constructed hardened identity is a major obstacle to peace. Whatever foreign assistance may be, the ultimate peace, if any, is the result of local arrangements.

Notes 1 William J. Foltz, “Africa and Great-power Strategy,” in William J. Foltz and Henry S. Bienen (eds.), Arms and the African Military Influences on Africa’s International Relations. New Haven, CT and London: Yale University Press, 1985, pp. 1–27. 2 US Departments of Defense and State Grenada: A Preliminary Report. Washington, DC: December 1983, p. 5. 3 William J. Foltz, “Africa and Great-power Strategy,” p. 3. 4 William J. Foltz and Henri S. Bienen (eds.), Arms and the African. Military Influences on Africa’s International Relations. New Haven, CT and London: Yale University Press, 1985, pp. 1–27. 5 Cf. Austerlitz, December 1805. 6 The Plateau de Pratzen: a strategic location that Napoleon used at the battle of Austerity in 1805. 7 Pierre Péan 1988. 8 Pierre Péan, L’argent noir. Corruption et sous-development. Paris: Fayard, 1988, p. 218. 9 Ibid., p. 213. 10 The Washington Post (April 19, 2004): “Bush Plans Aid to Build Foreign Peace Forces,” pp. 1A and 16A. 11 JAI No. 2249, 2/15–21, 2004, p. 17. February 6, 2004 NATO meeting in Munich. 12 Marina Ottaway, Jeffrey Herbst, and Greg Mills, “Africa’s Big States: Toward a New Realism, Carnegie Endowment for International Peace,” February 2004, p. 2. 13 James Anyanzwa, “EU Gives Sh23b for Peace Plan,” Ghana News, East African Standard (April 2, 2004).

15 US security assistance and Africa Challenges of weapon sales and military aid Matthew Schroeder Introduction United States arms sales and military aid to the developing world are divisive, politically charged topics that are notable as much for the emotions that they evoke as the impact that they have on recipients. Yet for policymakers responsible for overseeing the myriad programs through which this aid is funneled, there is little room for black-and-white thinking. The stewards of US security assistance must balance several, often conflicting, foreign policy goals, each of which is vitally important to the United States, the recipient country, and/or a particular constituency. This chapter attempts to shed light on US security assistance for sub-Saharan Africa and the vexing decisions that confront the stewards of these programs. The chapter is divided into three parts. The first part is an overview of the 12 Security Assistance programs and the aid that they provide to Africa. The second part highlights the context-driven and mercurial nature of decision-making in US security assistance programs. A case study of US-Nigerian relations over the past decade illustrates these dynamics. The chapter concludes with a brief analysis of the elements that are necessary to maintain balance in US security assistance programs.

US security assistance for Africa – an overview While the term “security assistance” is often associated with weapon sales and combat training, in truth, these are only a few of the programs and activities that fall under this rubric. Multimillion dollar weapons deals are indeed financed with security assistance, but so are programs that destroy surplus small arms in Tanzania and register voters in Cameroon.1 Pentagon documents reveal the breadth of military and foreign policy objectives that security assistance programs advance. According to the Department of Defense’s Security Assistance Management Manual, the United States designed these programs to “increase the ability of our friends and allies to deter and defend against possible aggression, promote the sharing of common defense burdens, and help foster regional stability.”2 While tiny in comparison to America’s primary means of “deterring and defending against possible aggression” – the US military – these programs are, in

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absolute terms, anything but insignificant. In fiscal year 2003 alone, the United States appropriated nearly US$12.5 billion in grant aid through the six main security assistance accounts.3 Much of this aid is set aside for a handful of countries (Israel, Egypt, Jordan, Turkey, and Colombia) which, combined, receive about three-quarters of the total each year. In comparison, Africa’s share is meager. In 2003, the countries of sub-Saharan Africa received between US$250 and $300 million combined. To put this number in perspective, Egypt and Israel alone received almost 15 times that amount just to buy US defense articles and services. According to the Defense Department, US Security Assistance consists of the following 12 programs: ● ● ● ● ● ● ● ● ● ● ● ●

Foreign Military Sales; Foreign Military Construction Services; Foreign Military Sales Credit; Leases; Military Assistance; International Military Education and Training; Drawdown; Economic Support Fund; Peacekeeping Operations; International Narcotics Control and Law Enforcement; Nonproliferation, Anti-Terrorism, De-mining, and Related Programs; and Commercial Export Sales Licensed Under the Arms Export Control Act.4

These programs can be divided into three broad categories: ● ●

●

programs through which the US exports defense articles and services; accounts through which the United States provides funding to foreign governments to purchase defense articles and military training; and programs that support counterdrug, counterterrorism, nonproliferation, and institution-building activities.

Arms transfer programs The United States transfers arms to other countries through five main channels. The two largest are the Foreign Military Sales program and the Direct Commercial Sales program, which the Department of Defense and the State Department administer respectively. Through the Foreign Military Sales program, foreign governments enter into contracts with the Pentagon for military equipment and services. The US government then procures the requested items or services from defense contractors. Foreign governments can also buy weapons directly from US companies through the Direct Commercial Sales program. The State Department’s Bureau of Political-Military Affairs oversees commercial military sales. The United States also exports defense articles as leased items,

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through emergency drawdowns of Defense Department stocks, and as excess defense articles. Through these five channels, the US exports roughly US$13 to $25 billion in weapons, military equipment, and defense services each year.5 As a region, sub-Saharan Africa is by far the smallest recipient of US arms. According to the Congressional Research Service, from 2000 to 2003 countries in this region only imported an estimated US$95 million in US arms6 – less than 0.2 percent of all US transfers for that period.7 Most of these exports are small shipments of relatively inexpensive items, although US aircraft, patrol boats, and other large weapon systems have also been exported. Recent transfers that are more typical of US arms exports to Africa include ● ● ● ● ●

bomb detection equipment for Benin, spare parts for Botswanan F-5 fighter jets, night vision equipment for Mauritius, missile launchers for Nigeria, and firearms and ammunition for Ghana, Kenya, and several other countries.8

Military assistance Military assistance programs provide funding to equip and train foreign troops and defense personnel. These programs include the Foreign Military Financing program, the International Military Education and Training program, and Peacekeeping Operations.

Foreign Military Financing Through the US$6 billion Foreign Military Financing (Foreign Military Financing) program, friendly governments receive funds specifically to purchase American weapons, military equipment, and defense services. Most of this money – more than US$4.3 billion in 2003 – goes to Israel and Egypt as part of a reward package for the 1979 Camp David Accords. Other large recipients include Jordan, Pakistan, and Afghanistan. Together, these five countries received over US$5.4 billion of the $5.99 billion in Foreign Military Financing appropriated in 2003. In 2003, policymakers appropriated roughly US$28 million in Foreign Military Financing for all of Africa. While tiny in comparison to the amount received by countries in other regions, this total is a sharp increase over years past. From 2000 to 2003, Foreign Military Financing for Africa jumped from US$10 million to $28 million.9 Most of the additional funds are used to support the Bush administration’s global war on terrorism. While central Asia remains the epicenter of the war on terrorism, many US officials are alarmed by the inability of many African governments to prevent terrorists from operating in their countries: “Africa . . . with resource-strapped governments unable to effectively control their territories, has been described as the ‘soft underbelly’ in the war on terror.”10 Recent years’ security assistance budgets for Africa reflect this concern. The so-called frontline states in the

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war on terrorism – Djibouti, Kenya, and Ethiopia11 have received the lion’s share of the post-September 11 increase in Foreign Military Financing. Foreign Military Financing for Djibouti – the highest profile African frontline state in the war on terror – has increased exponentially since 2001. From 1996 through 2000, Djibouti received a mere $100,000 in Foreign Military Financing – less than 1 percent of the US$20 million in Foreign Military Financing it has received since then.12 Most of this money is specifically for counterterrorism purposes. Foreign Military Financing requested for Djibouti in the 2005 Presidential Budget, for example, was to purchase “vehicles, small craft and patrol vessels, communications equipment, fencing, guard towers, and night vision goggles . . . [to] help Djibouti secure its borders and coastline from the increased threat of terrorism.”13 Foreign Military Financing is also used to fund the purchase of equipment for peacekeeping operations. In 2005, the President requested US$2.5 million in Foreign Military Financing, in part, for the purchase of maintenance and spare parts for Botswanan and Ethiopian C-130 aircraft – a transport plane that states use to deploy troops, including peacekeeping forces. Military training Aid provided via the International Military Education and Training (IMET) program is more evenly distributed than Foreign Military Financing, but there is less to go around. The annual IMET appropriation of around US$90 million pays for training on topics ranging from human relations issues to the effective use of intelligence in counterterrorism operations. Much of the training takes place in the United States, although the Pentagon also deploys mobile training teams to some recipient countries. While people often assume that military training is combat training, the most African IMET funding is used to impart nonlethal skills. In 2002, courses on military-related legal subjects (like military law, justice systems, and the rule of law) accounted for about half of the training provided to African countries via the IMET program. Also popular were English language classes and courses on HIV/AIDS planning and policy. Combat training was also provided, but to significantly fewer students. An example is the basic infantry officer skills course taken by Swazi, Benin, and Malawian soldiers in 2002. The course provides training in the use of small arms and light weapons (M203 grenade launcher, M60 machine gun), combat lifesaving measures, and call-for-fire procedures.14 IMET is probably the best-known US military training program but it is only one of several avenues through which the United States teaches military skills to foreign troops. Chief among the other programs is the Pentagon’s Joint Combined Exchange Training ( JCET) program (see subsection D). Through the JCET and IMET programs, the United States provided more than 2,800 courses (units of training) to African military and defense personnel in 2002. At least a 1,000 additional units of training were provided through smaller programs.15

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Peacekeeping In recent years, US policymakers have channeled most military assistance to Africa through the Peacekeeping Operations (PKO) and the Contributions to International Peacekeeping Activities (CIPA) programs. Funds appropriated to the PKO account are used to help deploy and sustain African peacekeepers; train and restructure national armed forces; demobilize and disarm rebels; and support regional organizations, including the African Union and the Economic Community of West African States (ECOWAS). The best-known program funded through the PKO account is the African Contingency Operations Training and Assistance (ACOTA) program, which is the successor program to the Clinton administration’s Africa Crisis Response Initiative (ACRI).16 Through ACOTA, the United States provides training and equipment packages aimed at preparing troops for “higher threat peacekeeping operations.” Examples of training include instruction in convoy escort, logistics, and “robust force protection.” Equipment packages include “comprehensive communications package[s], portable electronic generators, soldier support, mine detectors, night vision devices, portable light sets, and water purification units.” Increasing the training capacity of participating nations is another focus of ACOTA. Through ACOTA and ACRI, the United States has trained and equipped 12,000 peacekeepers from 10 African countries17 that have been, according to the State Department, active in every recent UN and regionally mandated peace mission in sub-Saharan Africa. Also noteworthy is the Global Peace Operations Initiative (GPOI), a US$660 million Bush Administration program to increase the global capacity for peacekeeping operations by training approximately 75,000 troops over a five-year period.18 Despite broad bipartisan and interagency support, the Bush administration initially had trouble convincing Congress to buy into its funding scheme for GPOI. The administration wanted to cover most of the initial $100 million for the program by transferring funds from Defense Department coffers to the State Department, a plan allegedly supported by the Pentagon but opposed by members of the Senate Armed Services Committee. In May 2004, the Committee refused to authorize the Administration’s plan, citing concerns about the circumvention of human rights and foreign policy constraints, and the danger of wartime shortfalls in the Defense Department’s operations and maintenance funds.19 Despite these objections, appropriators inserted – at the last minute – language authorizing the transfer into the 2005 omnibus appropriations act. The provision does condition transfer of the funds on the “concurrence of the Secretary of Defense,” but, according to one knowledgeable government official, the White House will have little trouble convincing the Secretary of Defense to sign off on the funds transfer. Other security assistance programs African countries receive tens of millions of dollars in additional US aid through accounts set up to support counterdrug, antiterrorism, nonproliferation, and

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institutional development programs. These programs are funded through several accounts the State Department oversees, including the Economic Support Fund, the International Narcotics Control and Law Enforcement program, and the Nonproliferation, Anti-Terrorism, and De-mining, and Related Programs. In 2003, programs for Africa received US$136 million through these accounts.20 Other military assistance There are several US government programs that provide similar aid but are not considered security assistance programs. The Joint Combined Exercises and Training program is a good example. As mentioned earlier, the primary purpose of the JCET program is to train US forces. Nonetheless, the program often imparts combat and other skills to foreign militaries in the process – skills that are similar to those taught to IMET participants. Examples are plentiful. A 1999 Government Accountability Office (GAO) study found that “. . . JCETs helped to provide skills the Ecuadorian military would need to address the threat posed by Colombian criminal and terrorist elements that have infiltrated the border region.”21 A year earlier, the Washington Post reported that the US 3rd Special Forces Group “trained scores of local troops in Equatorial Guinea in light infantry skills, including operations planning, small unit tactics, land navigation, reconnaissance and medicine” in the 1990s.22 The Contributions to International Peacekeeping Activities (CIPA) account, through which the US pays its annual mandatory contributions to United Nations Peacekeeping activities, is another way in which non-Security Assistance programs pay for the activities of foreign troops. In 2003, money channeled through the CIPA account totaled nearly US$636 million, $360 million of which went to peacekeeping missions in Africa. While the United Nations does not use this money to train and equip foreign soldiers per se, according to a US government official, it is used in part to “reimburse countries for the equipment they use as part of their ‘contract’ with the UN.”23 The United Nations also uses the funds to defray the costs of deploying and maintaining peacekeepers, which presumably allows contributing countries to devote more of their scarce resources to train and equip their forces. As demonstrated earlier, US security assistance is much more than just combat training and arms sales. It is a diverse collection of aid programs that are overseen and implemented by dozens of government agencies and offices. Preventing these programs – and the norms, policies, and goals that they promote – from working at cross-purposes is one of the most difficult challenges confronting policymakers.

The challenges of security assistance: balancing conflicting priorities The myriad goals, laws, and norms that shape and limit US security assistance programs could not be more diverse. From upholding and promoting human

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rights and democracy to “support[ing] the U.S. industry base by promoting the export of U.S. defense-related goods and services,” security assistance programs often seek to be all things to all people.24 In most cases, the programs advance several of these goals simultaneously, or at least the pursuit of one does not undermine progress on others. Exporting C-130 spare parts to Botswana, for example, satisfies several interests. US manufacturers and their employees benefit from the revenue generated by the sale, the Botswanan military benefits from improved operational readiness, and the international community benefits from the peacekeepers Botswana is better able to deploy. Conflicting priorities in Africa: Nigeria as a case study Not infrequently, however, policymakers are confronted with difficult dilemmas, often stemming from the recipients’ human rights records or antidemocratic behavior. These dilemmas are particularly prevalent amongst programs for Africa. While some African states have managed to avoid the endemic human rights abuses, civil wars, or cycles of military coups that plague their continent, most have not. Since gaining their independence, more than half of the countries of sub-Saharan Africa have suffered at least one military coup. Armed conflict and massive human rights abuses – both of which are grounds for terminating US security assistance – are also common. As a result, the United States regularly suspends or scales back security assistance programs. In 2003, at least 15 of the 48 countries in sub-Saharan Africa had some form of restriction or condition placed upon one or more of their security assistance programs.25 In cases like Zimbabwe, which does not sit on top of large oil fields or contribute significantly to the furtherance of US sub-Saharan policy objectives, the United States can punish bad behavior by withholding security assistance with minimal collateral damage to other foreign policy objectives. Often, however, the policy trade-offs are more stark. A good example is Nigeria. US policymakers view the West African nation as an important ally for several reasons. It is currently the fifth largest oil exporter to the United States, supplying the US market with over a million barrels per day. 26 Nigeria is also an important part of UN and regional peacekeeping operations. In 2003, it was the third largest contributor of troops to UN peacekeeping missions.27 Nigeria’s diplomatic clout has also served the international community well. In 2003, Nigerian President Olusejun Obasanjo helped to resolve the bloody power struggle between former Liberian President Charles Taylor and the insurgency group Liberians United for Reconstruction and Democracy (LURD). But Nigeria has also been a problematic ally. Its history of military coups, human rights abuses, corruption, and antidemocratic practices prompted policymakers to suspend at least some US security assistance programs during both the Clinton and Bush administrations. The decisions to freeze these programs, and the response from critics, illustrate the tightrope US policymakers must walk to satisfy the numerous, often conflicting, policy objectives that shape security assistance programs.

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The latest chapter in US-Nigerian relations began with the Nigerian military’s decision to annul the June 1993 presidential elections, which met with an unusually swift and decisive response from the United States. The day after the military announced the annulment, the State Department cut off all security assistance to Nigeria, including US$450,000 in International Military Education and Training, US$11 million in Economic Support Funds, and all Foreign Military Sales. Several weeks later, the State Department ratcheted up the pressure by implementing a policy of denial for commercial sales of military equipment. They also declared that the United States would expel the five Nigerian IMET students studying at US military schools from the country at the end of the summer.28 Congress quickly lined up behind the President. Several members spoke out in favor of the sanctions, and Representative Donald Payne introduced House Concurrent Resolution 51, which “endorse[d] the steps taken by President Clinton and the Administration – specifically the restrictions on assistance to agencies of the Nigerian Government [and] . . . the suspension of military cooperation between the United States and Nigeria . . . .”29 In response to internal and external pressure, General Babangida, the junta leader, announced that Nigeria would install a democratically elected government as planned on August 27, 1993. But instead of turning over power to the winner of the June 12 election, Babangida appointed Ernest Shonekan, chairman of the Transitional Council set up by the military in January 1993, to coordinate Nigeria’s return to democracy. Shonekan pledged to hold elections in February but his government did not last long enough to fulfill that promise. In November, General Sani Abacha – the Defense Minister and a conspirator in several previous coups and coup attempts – seized power and promptly extinguished any remaining hope of a quick return to democracy. Shortly after the coup, Abacha replaced elected governors with military officials and dissolved all democratic political institutions.30 Human rights abuses, economic deterioration, and political repression worsened during Abacha’s regime. In its 1994 Human Rights report, the State Department called the regime’s human rights record “dismal” and accused it of extrajudicial killings, torture, and “foster[ing] a climate of impunity in which these abuses flourish.”31 Antidemocratic behavior was also rampant.32 The nadir of Abacha’s stint as head of state, and of US-Nigerian relations during his rule, was the November 1995 execution of nine Ogoni activists (the Ogoni 9). The activists were part of the Movement for the Survival of the Ogoni People – an environmental organization to stop environmental and other abuses allegedly committed by multinational oil corporations operating in the Niger Delta region. Among the condemned was the organization’s leader Ken Saro-Wiwa, an internationally renowned poet and activist.33 The US reaction to the execution of the Ogoni 9, and to the remainder of Abacha’s brutal reign, captures the complexity, conflicting opinions, and opportunity costs that bedevil security assistance policymakers. Predicting a government’s response to sanctions is extremely difficult. Some regimes are very sensitive to international criticism and even minimal diplomatic

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pressure will be sufficient to produce the desired change. Others will endure years of withering economic and military sanctions rather than run the risk of emboldening internal or external enemies by capitulating and appearing weak. Most governments fall somewhere between the two extremes, and eliciting the desired behavior requires a mixture of engagement and isolation, rewards and punishment. Determining the precise mix can be difficult, and miscalculation can be costly in both direct and indirect ways. Too little pressure, for example, not only fails to elicit the desired response from the sanctioned regime but also weakens the norms that the sanctions are meant to uphold. Too much pressure can prompt the sanctioned government to walk away from the negotiating table altogether, eliminating what little diplomatic or economic leverage the United States might still have. In all cases, suspension of security assistance comes at a cost to US policy and US policymakers. For example, prohibitions on military training limit interaction between United States and foreign forces, thereby reducing US influence and access to military officials from sanctioned countries. This and other dilemmas are evident in the US approach to the Abacha regime from 1995 onward. Of all of Abacha’s misdeeds, Ken Saro-Wiwa’s execution provoked the harshest response from the US government. The Clinton administration withdrew the US ambassador and chastised Abacha’s regime in several forums. At a meeting of the United Nations Security Council, then Ambassador Madeline Albright declared that “[t]his heinous act offends our values and darkens our hope for democracy in the region.”34 The administration also formally banned all commercial sales of weapons, military equipment, and defense services (commercial arms sales to Nigeria had continued even after the annulment of the 1993 elections).35 Many members of Congress were just as vociferous in their condemnations. Representative Nancy Pelosi called the executions an “insult to humanity” and implored Shell Oil, which was concluding negotiations with the Nigerian regime on the construction of a US$3.8 billion natural gas plant,36 to use its leverage to press for democracy and human rights.37 Representative John Porter, cochair of the Congressional Human Rights Caucus, went the furthest, warning before the executions that “[i]f Ken Saro-Wiwa or any of the Ogoni leaders are executed, Congress will see to it that all ties with Nigeria, not only diplomatic, but all economic ties, are completely and permanently severed.”38 Despite the shared sense of outrage among policymakers, opinions differed on how best to address the regime’s abuses. The resulting debate and policy stalemate are a part of broader, ongoing debates within the policy community about whether and how to use security assistance programs to address human rights abuses and antidemocratic behavior. On one side of the debate were several prominent US and Nigerian academics and politicians who called for the use of bigger sticks against the Abacha regime. This group believed that further negotiations were futile and that the situation would not improve until the United States adopted more draconian measures. Nigerian political leader Chief Ralph Obioha asserted that the sanctions had failed because they were “insufficient, lacked bite and were not well coordinated.”39

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The Abacha regime could be brought to heel, claimed these activists, but only if the United States was willing to enact sanctions with a “bite.” Congressional proponents of this approach introduced legislation (the Nigeria Democracy Act) that would have frozen the assets of regime officials, banned all new American investment in Nigeria, and required the US Executive Director of the international financial institutions to vote against any new loans for Nigeria. The Act also would have codified and tightened the administration’s ban on security assistance and required that the United States pursue comparable, international sanctions through the United Nations. But neither the House nor the Senate could generate the momentum necessary to pass the bills. Senator Nancy Kassebaum’s bill stalled out in the Foreign Relations Committee shortly after a May 1996 hearing. The House version, sponsored by Representative Donald Payne, met a similar fate even though it attracted 93 cosponsors. In 1997 and 1998, similar bills were introduced in the House and Senate40 but none made it out of committee. The Washington Post blamed the Nigerian government and the oil companies for the inaction, calling their lobbying effort “a textbook example of how even the most unpopular of foreign regimes can neutralize their opposition in Washington with money and influential friends.” The Post reported that the Abacha regime paid nine US lobby and public relations firms, some of which were run by former lawmakers, an estimated US$10 million to thwart efforts to enact economic sanctions.41 But oil money is not the only explanation for why the Nigeria Democracy Act went nowhere. Equally as important was the genuine skepticism felt by some lawmakers about the wisdom and effectiveness of additional sanctions. As the Abacha regime strayed further from the path of action prescribed by US law, 42 influential lawmakers and academics publicly questioned the effectiveness of the sanctions and their impact on other foreign policy objectives. Among them was Representative William Jefferson, a vocal critic of Nigeria’s military government.43 Testifying before the House International Relations Committee’s Subcommittee on Africa two years after Ken Saro-wiwa’s execution, Jefferson called for a relaxation of the ban on military training for Nigeria, claiming that it was damaging long-term prospects for stability and democracy while having little discernable effect on the nature or behavior of the Abacha regime.44 Professor Jean Herskovits of the State University of New York expressed similar misgivings: The lasting democracy Nigerians want derives much of its framework by their own choice from American models. But what has the United States contributed in recent years? By severing military contacts and, through visa policy, effectively cutting off dialogue with almost all government officials, we have . . . opted for a role of pressure rather than persuasion . . . . We have done this on the unproven assumption that pressure would bring results, and we have included a range of measures . . . despite the fact that they have produced almost nothing of what we sought.45

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Opponents of additional sanctions believed that significant improvements in the Abacha regime’s behavior were unlikely regardless of the severity of US sanctions and that, in the long term, the best way for the United States to promote democracy and civilian control of the government in Nigeria was to remain engaged: “The military has been the greatest threat to civilian stability in the country, and it needs to be trained by an army and a country that understands how the military ought to relate to a civilian government.”46 By depriving Nigeria of US security assistance, the Clinton administration removed the democratizing influence of US programs. Furthermore, the ban created a void that the Chinese, who, as Representative Jefferson bemoaned, “have absolutely no orientation toward how an army ought to relate to a civil democracy,” have filled.47 Representative Jefferson was echoing concerns frequently expressed by the Pentagon, which regularly objects to the use of security assistance programs in carrot-and-stick diplomacy. Most recently, General Richard Myers questioned the Bush administration’s decision to withhold US$18 million in security assistance to Uzbekistan, an important US ally in volatile central Asia.48 “My own view is that [withholding security assistance is] very shortsighted, and it’s never productive,” said Myers during an August 2004 trip to Uzbekistan. “In fact, it can often have the opposite effect that you don’t intend because you lose the ability to influence at all.”49 Reminiscent of Jefferson’s complaints about Chinese military trainers filling the gap left by the Americans in Nigeria, Myers warned that cutting off aid to Uzbekistan would drive them closer to the Russians. Ultimately, neither side in the debate over aid to Nigeria was able to rally the support necessary to implement their respective visions, and the default policy – diplomatic sanctions and a ban on security assistance but no economic or oil embargo – prevailed until Abacha’s death in 1998. This middle-of-the-road policy satisfied few and had little apparent effect on the Abacha regime’s behavior. The oil industry’s opposition to sanctions was partially to blame, but so was the ongoing dispute within the US policy community over the wisdom and effectiveness of using security assistance programs to punish abusive foreign governments. Following Abacha’s death and the election of General Olusegun Obasanjo as president, US-Nigerian relations improved rapidly, and security assistance programs resumed almost as quickly. The United States lifted the ban on licenses for commercial arms sales in May 1999, and the 2000 foreign aid budget included requests for Foreign Military Financing and IMET for Nigeria. The Nigerian military’s abusive practices did not end with military rule, however, and new human rights crises soon surfaced. In one particularly brutal episode, the military killed over two hundred people in the Benue State after 19 soldiers were attacked and killed. The military also destroyed homes, shops, and public buildings.50 The US response was notably muted, especially compared with the reaction to Ken Saro-Wiwa’s execution. In public forums, the White House and State Department were silent on the incident, and journalists attending the State Department’s daily press briefings did not ask about it even though the newspapers were flooded with accounts of Nigerian soldiers killing unarmed civilians and burning entire villages. Administration officials reportedly did raise the issue

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with the Nigerian government, but, with the sole exception of a November press statement from the US embassy in Nigeria, only in private.51 Congress’s reaction was just as subdued. The Congressional Record does not have a single reference to the massacre until nearly four months after the incident, when Senator Russell Feingold denounced the killings in a statement he made on the Senate floor.52 Lawmakers did eventually sanction the Nigerian military, but compared with those levied against the Abacha regime the sanctions were modest and short-lived. The 2003 Consolidated Appropriations Resolution froze IMET and Foreign Military Financing funds until Nigeria suspended from the military and brought to justice all of the perpetrators of the Benue massacre. The ban lasted only two fiscal years. It was removed from the both the Senate and House versions of the 2005 bill,53 despite Abuja’s failure to comply with conditions for resumption of Foreign Military Financing and IMET funds. The reasons for the different responses to the execution of the Ogoni 9 and the Benue massacre are many. Timing was probably a factor, although its relative significance is debatable. The Benue massacre came hard on the heels of the September 11 terrorist attacks and the resulting upheaval to US foreign policy. Practically overnight, the nascent war on terror supplanted other foreign policy objectives as the government’s top priority.54 Consequently, establishing and strengthening relations with governments that could advance the campaign took on a new importance. While not a so-called frontline state per se, Nigeria has been supportive of the global war on terrorism, has a large Muslim population, and won praise from the State Department for “play[ing] a leading role in forging an anti-terrorism consensus among states in sub-Saharan Africa.”55 Some critics blamed the global war on terrorism for the Bush Administration’s silence on the Benue massacres. Human Rights Watch accused the US (and UK) governments of “muting their criticism of these abuses in order to preserve close ties with Nigeria in the struggle against terrorism . . . .”56 Indeed, the US government’s response did fit a post–September 11 pattern of setting aside other foreign policy concerns to advance the war on terror. Yet there is little reason to think that the US response would have been radically different if the Benue massacre had occurred before the terrorist attacks. Government responses to massacres that occurred before September 11 were just as tepid. Even the November 1999 assault on the community of Odi, during which the Nigerian military razed the town and killed dozens of unarmed civilians,57 provoked little public reaction from either the Clinton administration or Congress. If anything, Congress’ willingness to impose sanctions in the Benue case at all is evidence of the slow post-September 11 restoration of the system’s equilibrium. A more significant factor was the Obasanjo government and the Nigerian president himself. Abacha’s regime was easy to sanction; it did little to promote key US foreign policy objectives. In contrast, policymakers view Obasanjo as much more sympathetic to US interests. His unrepentant rationalizing of the Nigerian military’s brutality58 is juxtaposed with a reportedly active anticorruption campaign,59 and clear support for the war on terrorism and other US priorities. Furthermore, despite the irregularities in the elections that brought Obasanjo to

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power, the international community generally views his regime as legitimate and democratically elected. For these reasons, there is less enthusiasm for sanctioning Obasanjo’s government. The ambiguity of US foreign assistance law is another, albeit secondary, factor. Section 502B of the Foreign Assistance Act prohibits the distribution of security assistance to regimes that engage in “a consistent pattern of gross violations of internationally recognized human rights.” In contrast to provisions of US law that are mandatory and are triggered automatically in very specific circumstances (like the military coup provision),60 Section 502B does not establish specific thresholds for what qualifies as a “consistent pattern” of human rights violations. As a result, State Department officials have a lot of latitude in determining when and how to penalize foreign governments. US-Nigerian relations over the past decade illustrate the tensions and conflicts that characterize US security assistance programs. Conflicting priorities often stymie the formulation of coherent and effective security assistance policies, which, in turn, reduces the value of these programs as tools of US foreign policy. This is evident in the US response to Abacha’s tyranny, which disrupted militaryto-military relations while failing to end the regime’s abusive and antidemocratic behavior. US policy toward the Obasanjo administration calls attention to a different issue: the lack of consistency in the use of security assistance as a diplomatic tool. The massacres in Odi and Benue were as egregious as any human rights abuse committed by the military during the Abacha years, yet the sanctions enacted by US policymakers were modest and short-lived. This is not to say that the United States should adopt a cookie cutter approach to security assistance sanctions; each case is different and requires an individual, nuanced response. The policy community must learn to balance various foreign policy priorities while preserving the flexibility necessary to respond to a wide variety of scenarios. Striking this balance requires transparency and constant innovation in security assistance programs.

Achieving balance in security assistance programs As evidenced by the case of Nigeria, satisfying the myriad norms, laws, and objectives that shape security assistance programs is a difficult task. In some cases, the conflicting objectives are truly irreconcilable and one or more foreign policy objectives will suffer. In other cases, innovative policymakers can convert zero-sum games into win/win situations. Two examples of the latter include the establishment of the Expanded-International Military Education and Training program and the Leahy Law. Expanded-International Military Education and Training program The United States established the expanded-IMET program in 1990 to “educat[e] U.S. friends and allies in the proper management of their defense

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resources, improv[e] their systems of military justice in accordance with internationally recognized principles of human rights and foste[r] a great respect for, and understanding of, the principle of civilian control of the military.”61 To this end, the program offers courses in civil-military relations, defense management, and military justice. Combat training is not provided. While not created for this purpose per se, policymakers have used the expanded-IMET as an alternative to the often unpalatable choice of either providing full IMET for countries with problematic human rights records or none at all. Rewarding, and increasing the lethality of, abusive militaries by providing them with US military training undermines human rights norms and risks associating the United States with the practices of abusive governments. On the other hand, critics of using the IMET for carrot-and-stick diplomacy claim that cutting off abusive militaries completely reduces US influence and access in strategically important countries.62 During a 1999 press briefing on Indonesia, Rear Admiral Craig Quigley summed up this thinking when he observed that the purpose [of IMET] is engagement. You are either involved in a dialogue with the militaries of other nations or you’re not. . . . Human beings react well to faces that they have seen before, people with whom they have had a conversation before. The old cliché about an emergency or a crisis is not the best time to place that first phone call to a person with whom you’ve never had any relationship is absolutely true.63 Limiting training for abusive militaries to expanded-IMET courses is one possible way to address Rear Admiral Quigley’s concerns while avoiding US complicity in abusive behavior. This approach allows US policymakers to ● ● ●

publicly demonstrate their commitment to upholding human rights norms, rebuke and exert pressure on abusive regimes, and ensure that these regimes do not receive combat training,

while maintaining “mutually beneficial military-to-military relations which culminate in increased understanding and defense cooperation between the United States and foreign countries.” The United States has applied this approach most recently to Guatemala and Indonesia – the armed forces of which have been implicated in gross violations of human rights. The Leahy Law Refining sanctions to make them more targeted is another way to promote human rights norms without unduly disrupting security assistance programs. The so-called Leahy Law on Human Rights is a strong example of this type of refinement. The Leahy Law, a provision in foreign aid legislation that is named after Senator Patrick Leahy, prohibits the distribution of foreign aid to “any unit of the security forces of a foreign country if the Secretary of State has credible evidence

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that such unit has committed gross violations of human rights.” The law is innovative in several ways. First, it targets only those security units that are directly involved in the abuse. All other military units can continue to receive aid. This approach minimizes collateral damage to other foreign policy objectives and, in turn, reduces potential opposition. Second, the law provides a clear and compelling incentive for foreign governments to take corrective action; aid to the sanctioned unit can resume as soon as the state brings the perpetrators of the abuse to justice. While implementing the law is less than perfect,64 evidence suggests that it does advance US human rights goals in significant ways. The State and Defense Departments’ Leahy Law implementation system requires embassy officials to take action on any credible reports of human rights abuses committed by recipients of US security assistance. These reports can lead to various penalties, including the issuance of critical demarches, imposing additional conditions on security assistance (e.g. no Foreign Military Financing-funded defense articles for the offending unit), and/or completely terminating aid to that unit. In 2003, for example, the State Department cut off all aid to the Colombia Air Force 1st Air Combat Command – an elite unit that, according to the Los Angeles Times, accounted for “20% of the air force’s combat capabilities.”65 Similarly, a 1999 Government Accountability Office survey of the Leahy Law in six countries found that in four of those countries, the Department of Defense had excluded one or more military units from participating in JCET training because of human rights concerns.66 The lack of public reporting on the Leahy Law’s implementation precludes a detailed discussion of its application in Africa, but there is anecdotal evidence that it has affected programs that train African soldiers. According to one Congressional staff member, the Pentagon’s policy of vetting every potential recipient of peacekeeping training for human rights concerns is a direct result of the Leahy Law.67 Transparency Transparency is also essential for achieving the proper balance between competing objectives. It is more difficult for policymakers to ignore or sideline human rights norms, for example, when human rights groups are able to closely monitor security assistance programs. For this reason, strong public and Congressional reporting requirements should be pursued and protected vigorously. Congress and civil society use several reporting and notification requirements to analyze, track, and influence security assistance programs. The State Department and Department of Defense, which oversee and coordinate US arms transfers abroad, compile several reports on arms transfers, military training, and other security assistance programs.68 The Congressional Research Service also publishes an annual report, Conventional Arms Transfers to the Developing World. Notifications to Congress of major arms sales, which are available to the public via the Federal Register, supplement the information in the annual compilations.

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Most of these data sources are readily available to the public and, as a result, US security assistance programs are among the most transparent in the world. Using these reports, one can determine, for example, that in 2003 the United States transferred US$8,096,000 in defense articles and services to Nigeria.69 We also know that the United States spent US$578,382 to train 156 members of the Nigerian military and/or government officials in topics ranging from tank gunnery and armor tactical training to English language training.70 These reporting requirements enable the different branches of government to monitor each other’s activities and enable civil society to monitor all branches, ensuring some semblance of balance amongst competing foreign policy objectives. Yet this system could be improved. Incomplete data, delays in distributing the reports to the public, and a general aversion to reporting requirements limit the utility, and threaten the existence, of key reporting requirements. The so-called Section 655 report is a good example of the first two problems, and the Foreign Military Training Report of the latter. The Section 655 report breaks down US government-to-government and commercial arms sales by category of defense articles. As such, it is an indispensable resource for monitoring the types of US weapons and military equipment transferred to a particular country or region. Yet it suffers from three significant shortcomings. First, the Pentagon’s section is often withheld from the public for months or years after the annual deadline for publication set by Congress. The Pentagon did not release its sections of the 2000 and 2001 reports to the public until early 2003, and did so only after the Federation of American Scientists filed a request under the Freedom of Information Act. Second, the data is too vague, especially in comparison to the data provided by the State Department. Given in Tables 15.1 and 15.2 are excerpts from both the State Department’s and Department of Defense’s sections of the 2002 report. As these two excerpts illustrate, the data on Foreign Military Sales is so vague that it is of limited value to Congress and the public. It tells the reader that the United States transferred ammunition worth US$82,000 to Botswana in 2002, but not the type and quantity of ammunition. Furthermore, the public version of the Department of Defense report is heavily redacted. The publicly available version of the report reveals that the United States sold around US$67 million in missiles to Egypt, for example, but data on the quantity and type of missile is deleted. There are also several countries for which all of the data on exports is redacted.71 Data on commercial sales is more complete but is also too vague. The 2002 report shows that the State Department issued licenses authorizing the export to Botswana of 17,700 firearms cartridges (“.22 thru .50 CAL”) costing US$7,361 but not the type and caliber of ammunition. This is not a trivial omission; there is a significant difference in lethality and destructive power of a garden-variety .22 caliber rifle round, for example, and a .50 caliber incendiary round. Also, the State Department’s section only provides data on export licenses issued in the previous fiscal year. The report does not provide data on actual deliveries. This is problematic because not all licenses result in deliveries, or deliveries of the quantity specified in the license. Furthermore, licenses are good for four years and

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Table 15.1 State Department Section Country Name Commodity

Quantity

TRANSPONDERS

Country total BOSNIA HERZEGOVINA AIRCRAFT SPARE SPARTS MISCELLANEOUS BOMB DETECTION EQUIPMENT TECHNICAL DATA CAT XI

Country total BOTSWANA

AIRCRAFT FIGHTER F-5 SPARE PARTS AIRCRAFT SPARE SPARTS MISCELLANEOUS AIRCRAFT, UNCLASSIFIABLE ARMORED VEHICLE SPARE PARTS & SUP EQUIP CARTRIDGES .22 CAL THRU .50 CAL ELECTRONIC COUNTERMEASURES EQUIPMENT ELECTRONICS COMPONENTS & SPARE PARTS NIGHT VISION SCOPES SPARES & COMPONENTS RECEIVER/TRANSMITTERS (ALL MODELS) RIFLE (NON-MILITARY, ALL TYPES)

BRAZIL ACCELEROMETERS AIRCRAFT ATTACK A-4 SPARE PARTS AIRCRAFT FIGHTER F-5 SPARE PARTS AIRCRAFT GROUND SUPPORT EQUIPMENT AIRCRAFT SPARE SPARTS MISCELLANEOUS AMMUNITION RAW MATERIALS AMPLIFIERS & AMPLIFICATION EQUIP ANTENNAS (RADIO & COMMUNICATIONS TYPES) ARTILLERY FUZES BOMB DETECTION EQUIPMENT BREATHING EQUIP (UNDERWATER MODELS) BREATHING EQUIP (GAS MASKS ETC)

Country total

License Value

39

490,390 $821,385

0 0 0

2,000,000 9,250 10 $2,009,260

0 0 1

3,536,678 408,938 7,313,690 106,172 7,361 1,830,719 239,000 161,310 60,000 231,953 $13,895,821

17,700 0 0 0 1 250

10 0 0 0 0 0 0 0 0 0

2,700 3,090,622 7,873,241 8,278 6,511,504 781,286 394,800 1,584,320 1,005,159 5,703,000 19,850 10,795

thus an exporter that receives a license in 2004 may not ship the licensed items until 2007. For these reasons, determining when, or even if, weapons licensed for export are actually delivered can be difficult. Periodic attempts to eliminate or scale back reports on security assistance programs also threaten transparency. A good example is the Foreign Military Training Report (FMTR). The FMTR allows Congress and civil society to systematically analyze and study US military training programs, and to ensure that the government is adhering to the letter and the spirit of security assistance restrictions. Human rights groups have used the report to uncover violations of the Leahy Law.72 Critics of the report have repeatedly tried to eliminate it, claiming it is too resource-intensive to produce and is rarely used. So far, they

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Table 15.2 Defense Department Section DSCA – FOREIGN MILITARY SALES DETAILED DELIVERIES FOR FISCAL YEAR 02 BOTSWANA C -L CATEGORIES/DESCRIPTIONS U AIRCRAFT SPARE PARIS TOTAL AIRCRAFT (+ SP) $ U OTHER AMMO AND COMPONENT TOTAL AMMUNITION $ U OTHER COMMUNICATIONS EQP U COMMUNICATION EQP SPARES TOTAL COM EQPT (+ SP) $ OTHER SUPPLIES TOTAL OTHER EQPT(+ SP) $ U SUPPLY OPERATIONS U LOGISTICS MANAGEMENT EXP TOTAL SUPPLY OPER $ U TECHNICAL ASSISTANCE U OTHER SERVICES TOTAL OTHER SERVICES $ TOTAL COUNTRY

----------FY 02-------QUANTITY

VALUE 47 47 82 82 31 3 33 20 20 13 6 20 66 12 78 280

DOLLARS IN THOUSANDS = QTY IS MISSILES, $ INCLUDES SUPPORT EQUIPMENT. ** = LESS THAN 500 PROCESS DATE 03 JAN 03 DELIVERY DATE 30 SEP 2002 RCS 1200-DELV-FY(7)-AA PAGE 119

have been unsuccessful but only because of active intervention by supporters of the report in Congress and civil society. Similarly, there is an ongoing effort to raise the dollar value threshold for arms sales notifications to Congress. Since the 1970s, the State and Defense Departments have been required to notify Congress 15–30 days in advance (depending on the recipient country) of major arms sales.73 After receiving the notification, Congress can block the sale by passing a joint resolution of disapproval. Advocates of higher notification thresholds contend that the State Department wastes too much time preparing and reviewing notices for routine arms sales. They point out that the United States established the current thresholds nearly three decades ago, and that inflation has made them largely meaningless. Indeed, many of the notifications are for arms sales that are of little significance, while problematic but less expensive sales do not trigger formal Congressional notifications. Raising the threshold only addresses part of the problem, however. Instead, policymakers need to replace dollar value thresholds with criteria that more effectively flag problematic transfers.

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Conclusion As the section “US security assistance for African – an overview” illustrates, the types of aid provided and the objectives pursued through US security assistance programs could not be more diverse. This is particularly true in Africa. The United States appropriates millions of dollars each year for projects ranging from the implementation of new land tenure laws in Angola to night vision goggles for Djiboutian security forces. Juggling the dilemmas that inevitably accompany so broad a set of objectives is a daunting task. Policymakers must not only ensure that no single priority eclipses others, but also that parity amongst priorities does not result in an ineffective compromises, as it did in the case of Abacha’s Nigeria. While perfect balance is impossible, creative policymaking, vigilant watchdog organizations, and rigorous reporting requirements can ensure some degree of harmony amongst important foreign policy objectives.

Notes 1 US Department of State, “Congressional Budget Justification for Foreign Operations, Fiscal Year 2005,” February 10, 2004. 2 US Department of Defense, Security Assistance Management Manual, [available online at http://www.dsca.mil/samm/Chapter%201%20Security%20Assistance%20Overview %20change%201.pdf]. 3 Most grant aid provided as security assistance is channeled through the following accounts: (1) Foreign Military Financing (FMF), (2) International Military Education and Training (IMET), (3) International Narcotics Control and Law Enforcement (INCLE), (4) Economic Support Fund (ESF), (5) Nonproliferation, De-mining, AntiTerrorism and Related Programs (NADR), and (6) Peacekeeping Operations (PKO). 4 Security Assistance Management Manual, 29. There are variations in the way that US government institutions define Security Assistance. Congress, for example, has enacted legislation that categorizes several, but not all, of the aforementioned programs as Security Assistance. In Section 502B of the Foreign Assistance Act (the law of the land on foreign aid) defines Security Assistance as (A) assistance under chapter 2 (military assistance) or chapter 4 (economic support fund) or chapter 5 (military education and training) or chapter 6 ( peacekeeping operations) or chapter 8 (antiterrorism assistance) of this part; (B) sales of defense articles or services, extensions of credits (including participations in credits), and guaranties of loans under the Arms Export Control Act; or (C) any license in effect with respect to the export of defense articles or defense services to or for the armed forces, police, intelligence, or other internal security forces of a foreign country under section 38 of the Arms Export Control Act. This definition does not include some of the programs funded through the Nonproliferation, Anti-terrorism, De-mining, and Related Assistance account or the International Narcotics Control and Law Enforcement account, which are included amongst the programs that the Defense Department identifies as Security Assistance programs. 5 Richard Grimmett, Conventional Arms Transfers to Developing Nations, 1992–2003, Congressional Research Service, August 26, 2004 [available online at http://www.fas.org/man/crs/RL32547.pdf]. 6 This number is taken from the 2004 edition of the annual CRS report on Conventional Arms Transfers to Developing Nation, and includes the dollar value of “all categories of

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7 8

9

10 11

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

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weapons and ammunition, military spare parts, military construction, military assistance and training programs, and all associated services.” According to data compiled by the Congressional Research Service, Russian, China and several smaller exporters provide African countries with most of their fighter aircraft, tanks, and large artillery pieces. See Conventional Arms Transfers to Developing Nations, 1992–2003. These examples are taken from the FY2003 Report by the Department of State Pursuant to Section 655 of the Foreign Assistance Act (hereafter referred to as “Section 655 report”) [available online at http://www.fas.org/asmp/profiles/655–2003/6552003. html]. Note: the Section 655 report only includes data on authorized commercial sales and thus the defense articles in the above examples may not have actually been transferred. For more information, see pp. 295–296 of this chapter. See US Department of Defense, Foreign Military Sales, Foreign Military Construction Sales and Military Assistance Facts as of September 30, 2003 [available online at http://www.fas.org/asmp/profiles/facts_book_2003.pdf ] and Congressional Budget Justification for Foreign Operations, Fiscal Year 2005. Jim Fisher-Thompson, “Africa Opposing Terrorism with U.S. Help, Official Tells Congress,” Washington File, April 5, 2004 [available online at http://usembassy.state. gov/nigeria/wwwhp040504a.html]. Associate Coordinator of the State Department’s Office of the Coordinator for Counterterrorism Karl Wycoff testifying before the Subcommittee on Africa, House International Relations Committee, 108th Congress, 2nd Sess., April 1, 2004. See also Larry Nowels, Appropriations for FY2004: Foreign Operations, Export Financing, and Related Programs, Congressional Research Service, June 20, 2003 (updated), p. 28 [available online at http://fpc.state.gov/documents/organization/22168.pdf]. Congressional Budget Justification for Foreign Operations, Fiscal Years 2003, 2004, and 2005. Since FY04 numbers are estimates, the US$20 million total is also an estimate. Congressional Budget Justification for Foreign Operations, Fiscal Year 2005, p. 239. US Departments of Defense and State, Foreign Military Trianing in Fiscal Years 2002 and 2003, Volume 1, May 2003 [available online at http://fas.org/asmp/campaigns/ training/FMTR%202003/FMTR2003.htm]. Ibid. House Committee on International Relations, Subcommittee on Africa, African Crisis Response Initiative: A Security Building Block, 107th Cong., 1st Sess., July 12, 2001 [available online at http://wwwc.house.gov/international_relations/107/73778.pdf]. The White House Office of the Press Secretary, Fact Sheet: G-8 Action Plan: Expanding Global Capability for Peace Support Operations, June 10, 2004 [available online at http://www.state.gov/e/eb/rls/fs/33435.htm]. Bradley Graham, “Bush Plans Aid to Build Foreign Peace Forces,” Washington Post (April 19, 2004) and Bill Gertz, “Peacekeeping Force Planned for Africa,” Washington Times (April 30, 2004). House Committee on Armed Services, National Defense Authorization Act for Fiscal Year 2005, 108th Cong., 2nd Sess., May 14, 2004, S. Rep. 108–491 [available online at http://thomas.loc.gov/cgi-bin/cpquery/T?&report  hr491&dbname  cp108&]. Congressional Budget Justification for Foreign Operations, Fiscal Year 2005, pp. 579–580. Government Accountability Office, Management and Oversight of Joint Combined Exchange Training, GAO/NSIAD-99-173, July 1999, p. 48. Dana Priest, “U.S. Military Trains Foreign Troops,” Washington Post ( July 12, 1998) [available online at http://www.washingtonpost.com/wp-srv/national/longterm/ overseas/overseas1a.htm]. Interview with US government official, September 2004. Congressional Budget Justification for Foreign Operations, Fiscal Year 2005, p. 189. Congressional Budget Justification for Foreign Operations, Fiscal Year 2003. US Department of Energy, Energy Information Administration, Country Analysis Brief: Nigeria, August 2004 [available online at http://www.eia.doe.gov/emeu/cabs/ nigeria.html].

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27 Based on average end-of-the-month total contributions. See UN Department of Peacekeeping Operations, Monthly Summary of Contributors of Military and Civilian Police Personnel 2004 [available online at http://www.un.org/Depts/dpko/dpko/contributors/]. 28 Mike Mccurry, State Department Regular Briefing, Federal News Service, July 22, 1993. 29 Concerning the Movement Toward Democracy in the Federal Republic of Nigeria, H.Con. Res 151, 103rd Cong., 2nd Sess., July 26, 1994. 30 US Department of State, Bureau of African Affairs, Background Note: Nigeria, April 2004 [available online at http://www.state.gov/r/pa/ei/bgn/2836.htm]. 31 US Department of State, Nigeria Human Rights Practices 1994, February 1995 [available online at http://dosfan.lib.uic.edu/ERC/democracy/1994_hrp_report/94hrp_ report_africa/Nigeria.html]. 32 The regime routinely detained political opponents. A ban on political parties and meetings continued until June 1996, after which a handful of parties were ultimately permitted to register. US Department of State, Bureau of Democracy, Human Rights and Labor, Nigeria Country Report on Human Rights Practices for 1997, January 30, 1998 [available online at http://www.state.gov/www/global/human_rights/1997_hrp_ report/nigeria.html]. 33 Human Rights Watch, Nigeria: The Ogoni Crisis: A Case-Study of Military Repression in Southeastern Nigeria 7 (No.5), July 1995 [available online at http://hrw.org/reports/ 1995/Nigeria.htm]. 34 Christopher S. Wren, “At the U.N., Anger Over Executions,” New York Times (November 11, 1995). 35 “Policy on Munitions Export Licenses to Nigeria,” Federal Register 60 (No.245), 66334 (December 21, 1995). From September 1993 to November 1996, the State Department approved the export of defense articles worth $3,357,000. Oddly, the vast majority of these licenses were issued in FY1996 – the fiscal year during which the Ogoni 9 were executed. Commercial sales licensed for Nigeria in FY1996 nearly equaled the total for the rest of sub-Saharan Africa combined. According to the Defense Department’s FMS Facts report, arms export licenses for Nigeria totaled US$3,318,000 as compared to US$3,944,000 for the other countries of sub-Saharan Africa. 36 “Shell to Go Ahead with Gas Plant in Nigeria Despite Protests,” The New York Times (November 16, 1995). 37 US House of Representatives, Executions in Nigeria, 104th Cong., 1st Sess., Congressional Record (November 14, 1995): H 12313. 38 US House of Representatives, Ken Saro-Wiwa – Hon. John Edward Porter (Extension of Remarks), 104th Cong., 1st Sess., Congressional Record (November 10, 1995): E 2159. 39 House Committee on International Relations, Subcommittee on Africa, United States Policy toward Nigeria, 105th Cong., 1st Sess. (September 18, 1997), p. 43. 40 Representative Payne introduced another version of the Nigerian Democracy Act in 1997. The next year, Representative Ben Gilman and Senator Russell Feingold sponsored the Democracy and Civil Society Empowerment Act of 1998. 41 Glenn Frankel, “Nigeria Mixes Oil and Money; A Potent Formula Keeps U.S. Sanctions at Bay,” The Washington Post (November 24, 1996). 42 Government assessments of Nigeria’s compliance with key eligibility criteria was overwhelmingly negative. In testimony given to the House Subcommittee on Africa, Acting Assistant Secretary of State Johnnie Carson observed that Abacha’s regime had made “no progress on key performance indicators like extraditions; the investigation, arrest and prosecution of major drug traffickers; effective action against corruption; and the enforcement of money laundering laws.” (United States Policy toward Nigeria, p. 29.) 43 In November 1993, Jefferson publicly called upon the Clinton administration to “move quickly and hand-in-hand with the United Nations to institute broad-based diplomatic and economic sanctions” against the Abacha regime. US House of Representatives, United States Should Reject New Dictator in Nigeria, Support Election of President Moshood Abiola, 103rd Cong., 1st Sess., Congressional Record (November 18, 1993): H 10126.

US security assistance and Africa 44 45 46 47 48

49 50 51 52 53 54

55 56 57 58 59

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United States Policy toward Nigeria, pp. 11–12. United States Policy toward Nigeria, pp. 40–41. United States Policy toward Nigeria, pp. 11–12, 15. United States Policy toward Nigeria, p. 15. In 2002, Congress conditioned the release of foreign aid to Uzbekistan on Uzbek leader Islam Karimov’s fulfillment of promises to pursue economic and political reforms. In the fall of 2003 and again in July 2004, Secretary of State Colin Powell refused to certify that these conditions had been met. As a result, military aid to Uzbekistan was suspended. John Hendren, “Head of Joint Chiefs Reassures Uzbekistan amid Aid Cutoff,” Los Angeles Times (August 13, 2004). Human Rights Watch, Nigeria: Military Revenge in Benue: A Population Under Attack 14 (No.2A), April 2002 [available online at http://www.hrw.org/reports/2002/nigeria/ Nigeria0402.htm#P63_657]. Ibid. [available online at http://www.hrw.org/reports/2002/nigeria/Nigeria0402-07. htm#P406_86122]. US Senate, The Disaster in Nigeria, 107th Cong., 2nd Sess., Congressional Record (February 5, 2002): S 342. While it is possible that Congress will insert restrictions on FMF and IMET for Nigeria in the final version of the FY2005 Foreign Operations Appropriations Act, this outcome is highly unlikely. This preoccupation with combating terrorism manifested itself in, inter alia, significant changes to US security assistance programs and recipients. The Anti-terrorism Act of 2001, for example, would have waived all restrictions on the war on terrorism-related security assistance restrictions for five years. Congress rejected the proposal, but not other changes. Congress lifted restrictions on arms sales to India, Pakistan, Azerbaijan, Armenia, and Tajikistan within a few months of the attack, and military aid budgets for war on terror allies increased dramatically. Some of these changes were deeply disturbing to nongovernmental organizations and Congressional watchdogs that feared that they portended a wholesale abandonment of human rights and other eligibility criteria. For more information, see Rachel Stohl, “U.S. Post–Sept. 11 Arms Trade Policy” (September 1, 2004) [available online at http://www.cdi.org/friendlyversion/ printversion.cfm?documentID  1364] and Federation of American Scientists, “America’s War on Terrorism: Arms Transfers” [available online at http://fas.org/ terrorism/at/index.html]. Background Note: Nigeria [available online at http://www.state.gov/r/pa/ei/bgn/ 2836.htm#relations]. Human Rights Watch, Nigeria: Military Massacres Unpunished, Press Release (April 1, 2002) [available online at http://www.hrw.org/press/2002/04/nigeria040102.htm]. Human Rights Watch, World Report 2001: Nigeria [available online at http:// www.hrw.org/ wr2k1/africa/nigeria.html]. See Jonathon Power, “Interview: A Happier Nigeria?,” Prospect (November 20, 2003). Frank Vogl of Transparency International summed up Obasanjo’s anticorruption efforts during a January 2003 news conference: Olusegon Obasanjon came into office as president of Nigeria last May very determined to clean up corruption in that country. He has a very clear agenda. So far he’s kept to the agenda. He has rescinded past contracts. He has, in fact, prosecuted some of the worst offenders. He has issued a code of conduct for all cabinet members and senior public officials. He is starting to attack a huge, huge problem in Nigeria that he is the first to recognize. And he has gone to the Fund and the Bank for a lot of support to strengthen his economy, to move forward to strength – to get economic growth going in Nigeria which will allow a lot of the anticorruption changes to take place.

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60 See “Transparency International Holds News Conference on International Business Bribery,” FDCH Political Transcripts, January 20, 2000. 61 Dianne E. Rennack and Robert D. Shuey, Economic Sanctions to Achieve U.S. Foreign Policy Goals: Discussion and Guide to Current Law, Congressional Research Service ( June 5, 1998). The annual foreign operations appropriations acts forbid the distribution of most forms of security assistance to “the government of any country whose duly elected head of government is deposed by decree or military coup.” Ibid. 62 US Department of Defense, “Expanded IMET” [available online at http://www. dsca.osd.mil/programs/eimet/eimet_default.htm]. 63 While IMET is not the only way by which US officials establish relations with their foreign counterparts, it does serve that role; thousands of foreign military officers have received training from US instructors at US schools. 64 Miles A. Pomper, “Battle Lines Keep Shifting Over Foreign Military Training,” Congressional Quarterly Weekly ( January 28, 2000). 65 See Management and Oversight of Joint Combined Exchange Training. 66 T. Christian Miller, “U.S. May Punish Colombia Air Force,” Los Angeles Times (November 16, 2002). See also U.S. Department of State Daily Press Briefing ( January 14, 2003) [available online at http://usinfo.state.gov/mena/Archive/2004/Feb/ 05–936112.html]. 67 Management and Oversight of Joint Combined Exchange Training, pp. 58–62. 68 Conversation with senior Congressional staff member, September 2004. 69 These reports include the Annual 655 Military Assistance Report, the Foreign Military Training Report, the Congressional Budget Justification for Foreign Operations, and the Foreign Military Sales, Foreign Military Construction Sales and Military Assistance Facts report. 70 This total includes a preliminary total for commercial sales. See Congressional Budget Justification for Foreign Operations, Fiscal Year 2005, p. 239. 71 US Departments of Defense and State, Foreign Military Trianing in Fiscal Years 2003 and 2004, Volume 1, June 2004 [available online at http://www.state.gov/documents/ organization/34329.pdf]. 72 Departments of Defense, Annual 655 Military Assistance Report, Fiscal Year 2003 [available online at http://www.fas.org/asmp/profiles/6552002/FMS/ NearEast&SouthAsia.pdf ]. 73 Through the 1999 report, analysts from the Center for International Policy discovered that “vetted individuals from Colombian Army brigades banned from receiving unitlevel assistance were being trained.” See Center for International Policy, “Training: Findings and Recommendations,” updated September 2, 2003 [available online at http://www.ciponline.org/facts/traifind.htm]. 74 For example, sales of major defense equipment worth US$14 million or more and sales of other defense articles and services worth US$50 million or more.

16 Concluding thoughts After the fighting stops Milton J. Esman

In the transition to the twenty-first century, the past decade has, by one count, witnessed 18 major wars in which more than a thousand lives were lost, plus twice that number of “minor” violent conflicts.1 In every case the circumstances are distinctive, so that generalization is perilous. As in Rwanda, Sudan, Bosnia, Kosovo, Palestine-Israel, and Sri Lanka, most have an ethnic component; but others, as in Colombia and Haiti, have resulted from economic grievances and competing political ambitions. Some, as in Liberia and Congo, combine ethnic, economic, and political lines of cleavage. In all cases the principal victims have been innocent civilians, including children, many reduced to the pitiful status of refugees or displaced persons, their livelihoods shattered, their homes and communities devastated. The physical infrastructure of roads and bridges, dams and water supplies, power plants and electrical grids have been fought over and destroyed, public services that provide health facilities and education have been disrupted, as have commercial channels that supply basic necessities and facilitate the marketing of goods and services. When fighting finally abates or ceases altogether, it is usually because the parties are near exhaustion and international intervention has produced a tenuous cease-fire or armistice. These arrangements may be monitored by international peace-keeping forces. Yet, the parties to conflict remain, all of them riven by factions. Some of these factions are prepared to negotiate and accept a compromise settlement that requires them to sacrifice some of their goals in the interest of peace. But, other factions may reject the compromise, insist on their original goals, accuse the compromisers of “selling out” the interests of their people, and threaten to renew the fighting. Thus, many cease-fires and painfully negotiated postconflict settlements prove to be inherently unstable. Life must somehow be sustained, even under these unpromising conditions. Humanitarian relief provided mostly by international agencies such as the UN High Commissioner for Refugees, the World Food Program, the International Red Cross, and nongovernment agencies must continue, but the emphasis needs to shift from relief to reconstruction: resettling refugees, enabling displaced persons to return to their homes, restoring the physical and social infrastructure, reestablishing public services, renewing

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economic activity that permits people once again to provide for their own needs. Since public authorities that have survived the onslaught are likely to be bankrupt, relief and rehabilitation must depend on external economic assistance, on funding, on skilled personnel, and on drawing a fine line between meeting immediate needs and developing the capacity of indigenous institutions to provide security, mobilize resources, and manage the facilities and services on which civilized existence depends. Restoring the normal rhythms of life is a task that may require assistance from impatient external donors for as long as a decade. Healing the psychic wounds is an even more daunting challenge. All sides are likely to insist that the truth be publicized and accepted by all parties, but each side has its own version of the truth to which it clings, and is disinclined even to acknowledge the contrary claims of its recent adversaries. Reconciliation based on mutual forgiveness is even more problematical especially among hostile ethnic communities who nurse long-standing grievances against the “other.” There are many who insist that before they can forgive, before reconciliation becomes possible, justice must be administered to those who have committed criminal acts against their people; they must be held accountable, accept responsibility for their crimes and be appropriately punished. In the words of Haris Silaidzic, the former Bosnian Muslim Foreign Minister: I feel the way a Holocaust survivor would have felt if the Nazis had reinvented themselves . . . I am against reconciliation as seen from the Hague perspective. I never wronged anyone. I did nothing wrong. Reconciliation means we must meet halfway, but that’s offensive. I was wronged and almost my entire family was killed. I care about justice and truth.2 Circumstances in South Africa, including the unique leadership of Nelson Mandela and Bishop Desmond Tutu, allowed for the truth and reconciliation paradigm to take effect. But if truth implies agreement on events that occurred during the fighting, and if reconciliation implies confession of criminal behavior followed by forgiveness, there are few postconflict situations in which this formula could be expected to work. It is hard to imagine that a postconflict future in Palestine or Bosnia, in Chechnya, Sudan, or Sri Lanka could be achieved by the truth and reconciliation formula. The residual distrust and mutual hatred are simply too intense. A more modest but more feasible aspiration would be agreement by the former adversaries to peaceful coexistence, to acceptance by both parties of terms of settlement that fully satisfy neither, but that enable life among both peoples gradually to resume their normal rhythms. Vigilance would have to be maintained by both sides to prevent unreconciled factions from disrupting the settlement. While short of reconciliation, peaceful coexistence ends the killing, facilitates reconstruction, and fosters the development of institutions of democratic statehood – no small achievements. It allows for the possibility that time will

Concluding thoughts 309 eventually dull the hurtful memories, diminish the sources of conflict, and heal the psychic wounds among both peoples.

Notes 1 Roger A. Lee, The History Guy, “New and Recent Conflicts in the World” [available online at www.historyguy.com]. 2 Cited by Tim Judah, “The Fog of Justice,” New York Review of Books ( January 15, 2004), pp. 23–25.

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Index

Abacha, General Sani 291 Abidjan accord 157 Aborigines Law 220, 244 Abuja Accord 228 Abuja Declaration and Plan of Action 28 accountability 1, 4, 33, 39, 45, 51–53, 66, 98–99, 113–114, 127–128, 143, 146–149, 153, 155, 159, 165, 168, 179–180, 193, 204, 208, 223, 231, 250, 254, 289, 298 Accra Declaration on War Affected Children in West Africa 61 Africa Crisis Response Initiative (ACRI) 288 Africa Research Bulletin 45 African Center for the Constructive Resolution of Disputes (ACCORD) 66 African Contingency Operations Training and Assistance (ACOTA) 288 African Growth and Opportunity Act 209 African Liberation Committee of the Organization of African States 24 African National Congress (ANC) 135–136, 173, 177, 188 African Plateau de Pratzen 279 African Union 3, 27, 34, 61, 240, 282, 288 African Unity Summit 28 Agent Orange 94 Aginam, Obijiofor 3, 26, 28, 30, 32, 34, 36; see also HIV/AIDS pandemic Aideed, Mohammed Farah 16 Al Gore, US Vice President 27 Albright, Madeline 292 Alfonzo, Juan Pablo 41 American Colonization Society (ACS) 200

American Enterprise Institute and the Center for Strategic and International Studies 39 Amnesty law 6, 110, 134–137, 139, 141, 147, 149, 154, 157–158, 167, 169–170, 178–180, 182–184, 187, 229 Annan, Kofi 28, 35, 67, 97, 156, 200, 204, 256, 267 antiretroviral drugs 33 armed conflicts: armed groups’ activities 13; and demobilization 2; and economic diversification 2; effect of 2; in former regions of Somalia 16–19; impact on women and children 3; in northern Caucasus regions 20–21; in oil producing areas 2; postconflict societies 2; predatory 16; and proliferation of small arms 13; role of international community 3; sense of advantage or disadvantage 1; in Sierra Leone 21–23; source of 1; in Sudan 2; United Nations report 1, 13, 17; World Bank study 2; see also small arms and light weapons; war, impacts of arms trafficking: comparison of different ways of arms use 14–15; implications for policy and strategy 23–24; local trafficking 15, 18; in north Caucasus regions 20–21; in regions of former Somalia 16–19; in Sierra Leone 21–23 Article XXVI 227–230 Auden, W.H. 202 Aushev, Ruslan 21, 24 Azanian People’s Organisation (AZAPO) 173 AZAPO v. President of South Africa court case 135

340

Index

Babangida, General 291 Backer, David 7; see also South African Truth and Reconciliation Commission, case analysis of bad Muslims 21 Barclay, Arthur 224 Barclay, Edwin, J. 213, 216, 222, 230, 244 Barre, Siad 17–18, 22 Beijing Conference 122 Beijing Platform for Action 100 Bemoaned, Jefferson 294 Benedict, Samuel 217, 222–223 Beslan school hostage crisis 21 Biko, Steven 135, 170 Biko and Chris Hani murders 170 bipolarity 29 black colonialism 213 black gold 38, 41 “blood diamonds” campaign 24 Bongo, El Hadj Omar 46, 54 Bongo, President El Hadj Omar 46 Bosnian women, rape of 86 Botha, P.W. 170 Botswanan and Ethiopian C-130 aircraft 287 Boutros-Ghali, Boutros 247 Brahimi, Lakhdar 256, 260, 270 Brahimi Panel 270 Bratt, Duane 29 Brundtland, Gro Harlem 26 Buchanan, James 215 Bureau of Political-Military Affairs 285 Burundi 5, 62–65, 71–72, 77, 86–87, 91–93, 95, 101–102, 104–105, 109, 210, 280 Buzan, B. 30 Carter, Gwendolen 219 Cassell, Abayomi 223–224 Catholic Relief Services 51 Cels, J. 31 Center for Strategic and International Studies 39 Centre for the Study of Violence and Reconciliation (CSVR) 171–172 Chad-Cameroon Pipeline Project 49–51 Chechen mafia networks 20 Chechen separatists 20 Chechnya 15, 20–21; Chechen separatist movement 20; role of the intrusion of outsiders 20

child rights movement, tendencies in: advocacy without conflict specific analysis 111–112; human rights vs humanitarian impulse 110–111; non assessment of qualitative impact of interventions 112–113; over reliance of conventional forms of child rights 113–114 child soldiers 2, 5, 60, 75, 88–89, 102, 108, 110–115 Children in Reconciliation Program 64 Chrome Energy 47 Churchill, Winston 140 Civilian Police Division 256 “clandestine illicit economy,” 18, 20, 22 “clandestine” markets 16 Clay, Henry 215 Cohn, Ilene 5; see also child rights movement, tendencies in Cold War 2, 29 Coleman, William D. 213–214 collective violence: ethnic violence 93; genocidal wars 87; internal wars 87; international wars 87; terrorism 87–88 Colombia Air Force 1st Air Combat Command 298 Combined Joint Task Force for the Horn of Africa (CJTFHOA) 280 commercial sex workers 30 Commission on Global Governance 30 Common Cause 105 Common Foreign and Security Policy and the European Security and Defense Policy (ESDP) 260–261 Communal firewood collections 69 Community Agency for Social Enquiry 171–172 Comprehensive Peace Agreement 201 Congressional Research Service 286 ConocoPhillips 47 Consolidated Appropriations Resolution, 2003 295 Contracts and Monopolies Commission (CMC) 229 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) 99, 123 Conventional Arms Transfers to the Developing World 298 cosmopolitan social democracy 33 Crane, David 157

Index 341 Dagastan 15 Dayton Peace Agreement 125, 266 Deby, President Idriss 38 Defense’s Security Assistance Management Manual 284 degrees of local legitimacy 18 Democratic Republic of the Congo (DRC) 69, 71, 100–101, 103, 109 democratically accountable executives 42 Department of Defense 269 Department of Peacekeeping Operations (DPKO) 252 deployment of rape, as a weapon of war 31–32 diamond-mining communities: of Kasai 15; of Sierra Leone 15, 22 Doctors without Borders 33 Doe, Samuel K. 213 Doe’s People’s Redemption Council (PRC) 221 Dos Santos 54 Dushirehamwe 64 Dutch Disease 45 Dynamics of political women in the Democratic Congo 106 DynCorp 259 Dziedzic, Michael, J. 264–265

measures to complement women participation 122–127; national quota laws, role of 124; women participation in 120–122 Esman, Milton 8, 307–309 ethnicity, and political control 1 EU Police Mission (EUPM) 261 exotic diseases 26 Expanded-International Military Education and Training program 296 Export Credit Agencies 49 external interference, in the internal affairs of developing country governments 2 Exxon Mobil 47

Economic Community Cease-Fire Monitoring Group (ECOMOG) 204 Economic Community of West African States (ECOWAS) 32, 61, 204, 288; Nigeria’s role in the 32 economic diversification 2 economic globalization 32 Ed Royce 40 education of internally displaced people, barriers to: economics and other responsibilities 73; experience of displacement 74–75; gender barriers 73–74; inadequate facilities 71; lack of funding 71–72; lack of infrastructure 71; language 72; loss of documentation 72; material requirements 73; safety 72; school fees 72–73 Edwards, Jonathan 214 Egal, Mohamed Haji Ibrahim 17 Einstein, Albert 209 electoral process: campaign laws 119; and constitution 117–120; and economic factors 121; and education 121; electoral system 118–119; legislative

G8 Summit 3, 27–28, 259 Gantz, Peter 7; see also United Nation’s peace operations systems Gary, Ian 4, 38, 40, 42, 44, 46, 48, 50, 52, 54, 56 Gatumba 64 gender-based violence: Burundi 101–102; in Congo 102; in Democratic Republic of Congo 100–101; Sierra Leone 101; Sudan 101 General Babangida 291 Geneva Conventions: and additional protocol II 155; on rights of child 108, 115 Ghalib, Jaama Mahamed 17 Global Fund to Fight AIDS, Tuberculosis and Malaria 34 global health order 33 Global Peace Operations Initiative (GPOI) 288 “globalization” of justice 146 gonorrhea 102 Governance Reform Commission (GRC) 229

Fatih, Sheikh Mohammad 20 Federation of Women for Worldwide Peace 105 Firestone’s Gold Loan 216, 225 First World War 1, 87, 213, 228 Foreign Military Training Report (FMTR) 300 Foreign Military Training Report 299 Foucault, Michel 276 Frankel, Marvin 141 Freedom of Information Act 299

342

Index

Government Accountability Office (GAO) 289 Government Accountability Office survey of the Leahy Law 1999 298 Guardia Civil 266 Hamon, Leo 276 Hayner, Priscilla 134, 139, 142 health vs global security: Africa and global health policy 32–34; HIV/AIDS and conflicts in Africa 29–32; “soft-law” declarations of commitment, on 27–29 Held, D. 33 Henry, Patrick 215 Herskovits, Jean 293 Highly Indebted Poor Countries (HIPC) process 206 HIV/AIDS pandemic 91, 102; in African military forces 32; among Nigerian soldiers of Liberian and Sierra Leonean civil wars 32; broad objectives in global battle against 28; Commission on Human Security observation of 31; as global emergency 28; global fund on 27; Joint United Nations Program on 31; as security crisis 27; security implications of 33; and super power rivalry 29; see also health vs global security Holocaust 133, 139, 282, 308 House Concurrent Resolution 51, 291 Howard, Daniel, E. 223 human rights violations 14; European Convention on Human Rights 124, 129; Human Rights Violations (HRV) Committee, of the TRC 171; Second World Conference on Human Rights in Vienna 86 Human Rights Violations (HRV) Committee 171, 173, 178 Human Rights Watch 71, 103, 114 human security, notion of: commission on 30; security implications of HIV/AIDS 33; threats to 30 Hussein, Saddam 133 Hutu vs Tutsi violence 93 IDP see internally displaced women and children Idriss Deby 38, 50 Independent National Commission on Human Rights (INCHR) 229 indiscriminate sexual culture, among soldiers 31

infant mortality 40 influenza 26 Inkatha Freedom Party (IFP) 173, 177 interdependence 30 Inter-Governmental Authority on Development 61 internally displaced women and children: engaging, in decision making 63–64; establishing land and property for 76–77; in peace building process 64–67; protection of, during resettlement 67–68; protection of, from sexual violence and exploitation 68–70; providing educational infrastructure for 70–75; role of guiding principles for protecting and assisting 59–62; skills training and income generating opportunities for 75–76 International Covenant on Political and Civil Rights 123 International Criminal Court (ICC) 109 International Criminal Tribunal for Rwanda (ICTR) 6, 137–138, 141, 152 International Criminal Tribunal for Yugoslavia 137 International Labor Organization 88; Convention No. 108, 182 International Military Education and Training (IMET) 287, 289, 294–295, 297 International Monetary Fund 43, 49, 51–54, 94, 217 international peacekeepers 31 International Peacekeeping Activities (CIPA) 288–289 International Red Cross 307 international relations 29 International Stabilization Force (ISF) 228 Islamists 20; terror, in Algeria 88 Jallow, Hassan, B. 138 Jefferson, William 293–294 Jeffrey, Anthea 136 Jess, Omar 16 Johnson, Elijah 213 Joint Development Zone agreement 47 Jones, Mark 120 Kassebaum, Nancy 293 Ken Saro-Wiwa 291–294 Kende, Mark 6; see also Truth and Reconciliation Commission KFOR 255

Index 343 Kharzai, Ahmed 21 Khulumani Support Group 172 King, Charles, D.B. 216 Kitissou, Marcel 8; see also security dilemma, of Africa Klein, Jacques 226 Kosovo 15 Kouchner, Bernard 252 La Dynamique des femmes politiques au Congo démocratique 106 Lavalie, Alpha 21–22 League of Nations 253; Plan of Assistance to Liberia 203 Leahy, Patrick 297 Leahy law system 297–298, 300 legal proceedings: for bringing perpetrators to justice 150; deterrence in 150–151; low costs in 149–150; and national reconciliation 149; needs of local society 146; and needs of victims 147–148; positive impact of 151; redistribution approaches 150; social/pedagogical effects of trials 148–149; stability, democratization, and enhancement of the rule of law in 146–147 Liberation Tigers of Tamil Eelam (LTTE) 112 Liberia, dysfunctional governance structure and institutions of: American colonization society originated dysfunctional governance 214–217; background to administrative centralization 217–222; civil society organizations and other institutions 224; comprehensive peace agreement 226–232; conflicts and politics of 213–214; executive structure 222–223; judicial structure 223–224; legislative structure 222; Liberian antipathy to critical analysis 230–232; see also Liberian governance reconstruction agenda Liberian governance reconstruction agenda: aims of 209; framework for operations 208; and governance reforms 202–204; primary objectives of 207; problems and goals of 206–207; program assumptions in 204–210; program cost, duration and sustainability 212; program justification 210; program methodology 210–211; program outputs and impact 211–212;

program strategy 211; proposals in 208–209; reforms in, for public private empowerment 208; summary of programs 233–239; unsuccessful attempts at Liberian governance reform 203–204; see also Liberia, dysfunctional governance structure and institutions of Liberian protests 23 Liberians United for Reconciliation and Democracy (LURD) 103, 200 Lome peace agreement 154, 158 Lord’s Resistance Army 60 Los Angeles Times 48, 298 Macedonia 15 McGrew, A. 33–34, 37 Mahdi, Ali 16 majoritarian system 118–119 Mandela, Nelson 308 Mark Jones 120 Maskhadov, Aslan 21 measles 26 Mendez, Juan 137 Menezes, President Fradique de 47, 53 military entrepreneurs 13 Milosevic, Slobodan 133, 137 Mohammed, Ismail 170 Mooney, Erin 4, 58, 60, 62, 64, 66, 68, 70, 72, 74, 76, 78 Movement for Democracy in Liberia (MODEL) 79 Movement for the Survival of the Ogoni People 291 MSF organization 33 Mtintso, Thenjiwe 127 Multinational Specialized Unit (MSU) 266 Mxenge, Griffiths 170 Myers, General Richard 294 National Commission for Disarmament, Demobilization, Rehabilitation, and Reintegration (NCDDRR) 229 National Democratic Party of Liberia (NDPL) 221 National Electoral Commission (NEC) 229 National Patriotic Party (NPP) 221 NATO 260, 264–268, 278 Ndulo, Muna 1–2, 4–6, 8, 120, 122, 124, 126, 128; see also electoral processes; women participation, in political decision-making

344

Index

Nguema, Teodoro Obiang 48 Niasse 105 Nigeria Democracy Act 293 Nigerian civil war 95 nongovernmental organizations (NGOs) 102 Norman, Hinga 109 North, Douglass 14 North Sea petroleum 40 Nuremburg-style prosecutions 135 Nyerere, Julius 278 OAU Commission on Refugees and Displaced Persons 61 Obasanjo, Olusejun 290, 294 Obioha, Ralph 292 Ocean Venture 277 Ogata, S. 31 oil boom, of 1973 43 oil production, in Africa 38–39 oil production, relation to poverty and conflicts: and authoritarian rule 46–47; beneficial development outcomes 40–41; and civil war 47; experiences of oil-exporting countries 40; management of African oil exporters 48–53; and maritime boundary disputes 47–48; and militarization 46; negative developmental outcomes in 43–45; and non-conversion of oil to wealth 48; oil production management see oil production management, barriers to; recommendations for export credit agencies 54; recommendations for oil companies 53; recommendations for oil-exporting governments 53; recommendations for United States and northern governments 54; recommendations for World Bank and IMF 53; in relation to economic performance of oil exporting countries 45–47; World Bank Report 1997 44 oil production management, barriers to: absence of counter-pressures 42; concentration of power and resources 41; perverse incentives from international policy environment 42–43; prevalence of rent-seeking 42; and “resource curse,” 43–45 “one-size fits all” solution 58 OPEC countries 43 Open Directory Project 216

Open Door Policy 225 Operation Uphold Democracy 259 Operation Urgent Fury 277 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict 108–109, 111–113 Organization for Security and Cooperation in Europe (OSCE) 125–126 Organization of African Unity (OAU) 61 Organization of Petroleum Exporting Countries 41 Orr, Wendy 135–136 Ostergard 31 Oxfam organization 33 Pan African Congress (PAC) 173 “paradox of plenty” problem 49 Parti Démocratique du Gabon 46 Payne, Donald 291, 293 Peace-Building Network of women 65 Peck, Raoul 94 Peloponnesian War 26–27 Pelosi, Nancy 292 people centeredness 30 petrodollars 46, 50 Physicians for Human Rights 70 Pinochet, Augusto 133, 137, 147, 149, 151 Police in the Service of Peace 264 political control: and ethnicity 1; stakes for 1 Porter, John 292 posttraumatic stress disorder (PTSD) 90 preconflict patronage networks 16 Presidential Decision Directive 25 (PDD-25) 258 Presidential Decision Directive 71 (PDD-71) 258–259 Promotion of National Unity and Reconciliation Act of 1995 134, 170 Protocol for the Creation of a Permanent Framework of Cooperation for the Protection of Displaced Persons 62 Protocol to the African Charter on Human and People’s Rights 63, 67, 77 “Publish What You Pay” campaign 53 Putin, Vladimir 21 Quigley, Craig 297

Index 345 Raid, Nimba 214 rape, traditional beliefs of 90 Rawl, John 210 Regional Conference on the Legal Status of Refugee and Internally Displaced Women in Africa 77 Reno, William 3, 13–14, 16, 18, 20, 22; see also arms trafficking Republic of Ingushetia 15, 21 Resolution A/46/746, 212 Resolution WHA54.14, 28 Revenue Oversight Committee 50 Revolutionary Forces of Colombia (FARC) 112 Revolutionary United Front (RUF) 21–23, 154; fighters 21 Robert, Joseph Jenkins 221–222 Robertson QC, Geoffrey 139 Rogoff, Kenneth 205 Roye, Edward J. 40, 213–214, 222 rule of law 146–147 Rwanda 6, 32, 76–77, 86–87, 89, 91–95, 103, 124, 136, 156, 210, 256, 280, 282, 307; competing mechanisms and selectivity 152–153; jurisdictional proceedings in 151–152; role of Truth and Reconciliation Commission in 137–138 Rwanda Patriotic Front (RPF) 94 Sachs, Justice Albie 135 Saddam Hussein 46, 133 Sankoh, Foday 154 São Tomé’s 47, 53 Saro-Wiwa, Ken 292, 294 “school in a box” kits 74 Schroeder, Matthew 8, 284, 286, 288, 290, 292, 294, 296, 298, 300, 302 Sebashahu, Caritas 105 Second World War 87, 95, 213 Secretary-General’s report, on children 109–110 Section 655 report 299 Security Assistance Management Manual 302 Security Council Resolution 1325 5, 104; gender mainstreaming and peacekeeping operations under 97–99; measures against gender based violence 100–102; negotiating and implementation of peace agreements under 100, 102–104; role of Secretary General’s special representative

98–99; and women in peace process 104–106 security dilemma, of Africa 13; African peace keeping efforts 281–282; African traditional roles 276–278; and France 279–280; manipulation of identities 282–283; and “prism of pain” 282; and United States 280–281; with respect to African nationalism 278–279 Selection Assistance Teams (SATs) 256 self-defense, arm for 13 Senate Armed Services Committee 288 Service de Documentation Exterieur et de Contre-Espionage (SDECE) 280 sexually transmitted diseases 102 Shearer 94 Shonekan, Ernest 291 Shroeder, Matthew 8; see also US security assistance, for sub-Saharan Africa Sierra Leone 15, 21–23, 32, 74, 87, 101; hybrid tribunal in 6, 109, 113, 115, 138, 145, 154, 159; internalized justice at home 153–154; role of externalized form of justice in 149–151; role of justice after transition in 145–149; role of Truth and Reconciliation Commission in 113, 138–139; special court for 154–159; UN mission in 101 Silaidzic, Haris 308 small arms and light weapons 13; assault rifles 16; global norms for trading of 13; incentives for individuals 14; private arsenals 15; role of, in the regions of former Somalia 16–19 small pox 26 Small Wars Manual, 248 SMART 249 Smith, Robert 224 Somali national reconciliation process 17 Somalia, former 15–19, 21; Egal, Mohamed Haji Ibrahim, administration strategies of 17; and inoculation strategy against threats 23; and political networks of Barre, President Siad 17–18; and smuggling networks of Tuur, Abdirahmaan Ali 19 Sonis, Jeffrey 171 South African Constitutional Court 141 South African Defence Force (SADF) 173, 177 South African Police (SAP) 173, 177 South African Truth and Reconciliation Commission: case analysis of 7, 133–136,

346

Index

South African Truth and Reconciliation Commission (Continued) 140, 166–168, 194–195, 229; commission’s role in different cities 191; expressions of victims at different points 185–186; factors in statement submission 180; initial optimism of victims 183–185; involvement of victims in proceedings 187–188; methodology 171–173; optimistic expressions at different phases 186–187; profile of survey respondents 173–178; result analysis; general responses 178–180; result analysis; personal experiences 180–191; sequence of assessment 181; study population 171; victims and outcomes of the process 189–191; victims’ views on staff members 188–189 Soviet political networks 20 Soweto rebellion 94 “Special Cohi” unit 102 Special Committee on Peacekeeping Operations 98 Special Court, for Sierra Leone 109, 113; and disputes related to validity of amnesty in Lome peace accord 157–158; general mandates 154–155; legacy of 158–159; other mandates, powers and funding 156; relation to Truth and Reconciliation Commission 155; relationship with national authorities 155–156; statutes for prosecuting child victims 157; time frame 156–157 Sriram, Chandra Lekha 6; see also Sierra Leone; Special Court, for Sierra Leone State Department’s and Department of Defense’s sections of the 2002 report 299–300 State University of New York 293 Status of Forces agreements 254 Stewart, Thomas McCants 223 Stockton, Captain Robert Ford 213 Sudan 2, 34, 39, 47, 62–63, 66–67, 70–72, 77, 86–87, 89, 95, 100–101, 112, 125, 141, 248, 307 Sudan People’s Liberation Army (SPLA) 39, 66, 112; policy of 62 Swedish Commission, on international police activities 271, 275 syphilis 102

Tarr, Byron 7, 200, 202, 204, 206, 208, 210, 212, 214, 216, 218, 220, 222, 224, 226, 228, 230, 232, 234, 236, 238, 240, 242, 244; see also Liberia, dysfunctional governance structure and institution of; Liberian governance reconstruction agenda Taylor, Charles 139, 156, 199, 200, 203, 241, 290 Teage, Hilary 218 Telhami, Shibley 282 The Treaty on European Union 261 “third wave” of democratization 166 Thucydides 26 Tolbert, William R. 213–214 Tosch, Peter 201 Toure, Ahmed Sekou 210 Transparency 298–299 Transparency International Survey 2002 41 True Wig Party (TWP) 214–216, 219 Truth and Reconciliation Commission: and amnesty approach 134–136; background of 166–168; importance of context 139–140; prosecution options 137–139; recommendations for 140–142; relation to Special Court for Sierra Leone 155; South African Case Study 169–191 Tubman, William, V.S. 213 Turshen, Meredith 4; see also war, impacts of Tutu, Archbishop Desmond 133, 135, 170, 308 Tuur, Abdirahmaan Ali 16–17 UK Pinochet proceedings 147, 149, 151 UN CivPol system 7, 250, 255 UN Criminal Justice Standards for Peacekeeping Police (UNCJS) 252 UN Department of Peacekeeping Operations (DPKO) 252, 256–257 UN High Commissioner for Refugees 307 UN mission in Sierra Leone (UNAMSIL) 101 UN Programme on HIV/AIDS 73 UN Security Council 3, 27–28, 78, 138, 227 UN Special Rapporteur on Violence Against Women 77 UNAMSIL 154 UNICEF 89, 93–94, 114

Index 347 United Nations 1, 3, 8, 13, 27–28, 30–32, 35–36, 40, 47–48, 53, 59, 61, 66, 68–69, 71, 77–78, 81, 97, 100, 103, 128, 133, 153–154, 156, 158, 199, 225, 232–233, 247, 250, 252, 255, 258, 268, 270, 281, 293 United Nations Children’s Fund 102 United Nations Development Fund for Women 103 United Nations Development Program and the International Center for Transitional Justice 158 United Nations High Commissioner for Refugees (UNHCR) 59, 68–69 United Nations Mission in the Congo (MONUC) 102–103, 105 United Nations Operation in Burundi (ONUB) 104 United Nation’s peace operations systems: Brahimi panel proposals for enhancing CivPol capacity 256–258; constabulary police vs European Union 265–269; constabulary policing capacity and peace operations 262–265; other approaches for enhancing capacity 269–270; post conflict policing 248–249; problems with UN CivPol system 250–255; and public security gap 247–248; role of European Union in policing and peace operations 260–262; US approach to enhance CivPol capacity 258–259 United Nation’s Refugee Agency’s Executive Committee 105 Universal Declaration of Human Rights 123 universalism 30 University of Liberia 202 UNMIK 267–269 UNTAC (UN Transitional Authority in Cambodia) 251 Urgent Interim Reparations (UIR) 189 US African Growth and Opportunity Act 54 US European Command (USEUCOM) 281 US National Energy Plan 38 US National Intelligence Council 36, 51 US Presidential Decision Directive 71, 8 US security assistance, for sub-Saharan Africa: achieving balance in 296–301; arms transfer program 285–286; challenges of security assistance

programs 289–296; military assistance programs 286–288; other assistance programs 289; other security assistance programs 288–289 USAID-funded program 203 Wald, General Charles F. 39, 281 Wall Street Journal 39 war, impacts of: on African women and children 86; altered political environment 94–95; and child trafficking 88; on democracy 95; demographic changes 92; fall out of war 91–93; fate of children in wartime 88–89; female life expectancy in war-torn countries 93; food insecurity 92; gender discriminations of 86–88; health profiles 92; historical legacies of conflict 93–94; and infectious diseases 89; maternal mortality rate 93; poverty 91; public expenditure 95; on scientific research 95; widowhood during 88; women as household heads 88 Washington, George 215 Washington Post 293 Webster, Daniel 215 Westphalian system 27 WEU Petersburg declaration 1992 261 “white elephant” projects 43 Whittington, Sherrill 5; see also Security Council Resolution 1325 “winner-take-all” mentality 1 “woman in politics” program 126 women: in Africa 59; Bosnian 86; Dinka 95; Efik 95; Ibibio 95; Mozambican 91 “women can do it” multiethnic training program 126–127 Women Network for the Defense of Rights and Peace 105 Women Organized for a Morally Enlightened Nation (WOMEN) 127 women participation, in political decision-making 120–122; in Algeria 129; in Arab countries 128; of East Timorese 125; legislative measures complementing participation 122–127; in Nordic countries 128–129; Sudanese 66; in Sweden 129–130; Vietnamese 94 Women Waging Peace 66 Wood, Bretton 209–210

348

Index

World Bank 2, 9, 43–45, 49, 91, 94, 159, 203, 206, 217, 233; Highly Indebted Poor Country program for debt relief 45 World Corruption Index 43 World Food Program 69, 307 World Health Assembly 28, 35 World Health Organization 3–4, 27–28, 34, 37, 92

xenophobia 95 Yeltsin administration, in Moscow 20 Yugoslav Republic of Macedonia (FYROM) 261 Zyazikov, Murat 21