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 Re: تلخيص: From war to peace and reconciliation in Darfur منتدى عماد الأمين (Re: Elmuiz Haggaz)
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From Gacaca of Rwanda to the Judia of Darfur:
Like pre-genocide Gacaca, the Judia is a quintessential institution and a repository of a traditional system evolved for tackling day to day conflicts during peaceful times. As in the post-genocide Rwanda, the Darfur crisis introduced new nuances and fresh realities that transcend the traditional competence of the Judia. Hence, there is a need for some modifications in Judia with the aim of its transformation into an institution capable of contributing to justice and reconciliation in post war Darfur. Fortunately, we do not have to reinvent the wheel. Gacaca provides an impeccable template whereby a basically similar institution has been called upon to play a role analogous to what is demanded of the Judia. In tuning the Judia to suit the new context of post-war Darfur, caution must be made to avoid pitfalls of the Gacaca. The new Judia will undoubtedly be a hybrid defying purists of traditional customs and disappointing those who aspire for unadulterated modern judicial system.
Manoeuvring through the riddle of the number of those involved Darfur atrocities is not an easy task. Even if we are able to gauge a reasonable margin of error, the number of those implicated in the atrocities will still be confounded with peculiarities and differences of execution of Darfur crimes. At the moment (June 2009), Gacaca has already delivered over 1.5 million cases. Roughly speaking, and assuming that many of Darfur offenders cannot be identified, the Judia will still probably have to deal with a fourth to fifth of that number (200,000 to 375,000). This number is further reduced by removing those involved in homicide/ fatal injuries as I will propose later. The challenge is formidable but not insurmountable.
In the Gacaca case, 266,000 judges were appointed to sit in 10,000 courts. While this number may seem vast, the courts had to deal with a colossal amount of work with an adverse effect on performance, enthusiasm and availability for economic activities. The Judia must avoid this pitfall. If the number of Gacaca courts is used as a template, Darfur will require 2,000 to 2,500 courts. The problem of excessive work experienced in Gacaca can be eliminated by doubling the number of Judia courts to 4,000 to 5,000. This will also speed up the work, fast-track the reduction of the number of detainees and lead to a more efficient reconciliation and reconstruction of communities.
The poor training of judges that accompanied the work of the Gacaca courts must not be repeated in Darfur. As reported, Gacaca judges received an average of 36 hours of training each (Haile, 2008:20; Hansen, 2005:2; Amnesty International, 2002b:6). Moreover, judges sitting on Gacaca Appeal Tribunals did not receive better or longer training than other trainees. This deficiency must be overcome in Darfur. The quality of training must not be sacrificed for expediency.
Amnesty International was justified in raising the issue of the failure of Gacaca to adhere to the principle of a fair trial in its proceeding (Amnesty International, 2002a). Like many traditional legal systems, Gacaca lacked what is akin to the modern principle of “presumption of innocence”. This principle must be enshrined into the revamped Judia if it is to deliver justice that is worthy of pursuit.
The Judia also lacked a space for lawyers, a pitfall experienced in Gacaca. While it may not be feasible to include lawyers in the Judia, this shortcoming can be addressed by boosting the role of counter witnesses. Defendants should be allowed to commission relatives who are more articulate and with a better command of the intricacies of local jurisprudence to represent them in courts. It is perhaps unrealistic and albeit unnecessary to replicate Rwanda’s employment of “judicial defenders” in trials. Judicial defenders are pseudo-lawyers with six months of training. Nonetheless, some form of training for “traditional judicial defenders” with the aim of improving their sense of justice should be considered (Amnesty International, 2002b).
Many experts raised concerns about the law, if not totally defective, standard of evidence employed in Gacaca and with the result that many defendants were convicted on basis of hearsay and circumstantial proofs. Care must be given to this issue in the training of Judia judges. Judia appeal tribunals in particular must be empowered and perhaps augmented with modern judges to attenuate this tendency in the Judia. Alternatively, a supreme appeal tribunal can be created within a reorganised national justice system to act as a final stop for contested Judia verdicts. Variations in standards of the law of evidence are not peculiar to traditional legal systems. As the trials of O. J. Simpson have shown, modern courts are also inconsistent in their application of the law of evidence. Simpson was pronounced “not guilty” in criminal court but later convicted in a civil court. Simpson’s case is said to have inspired relatives of the 29 victims of Omagh, Northern Ireland, bombing by the Real IRA in 1998. Having failed in secure conviction in a criminal court in 2001, the plaintiffs renewed their case under a civil court leading to a successful conclusion on June 8th, 2009. Four of five defendants were found responsible for Omagh atrocities. The civil court prosecution, highlights the marked differences where “in a civil case, the burden of proof is on the balance of probabilities rather than the higher burden of a criminal case of beyond reasonable doubt” (Coulter and Keenan, 2009; Coutler 2009a and b).
Improving the justice potential of the Judia presupposes some degree of modernisation, bringing the institution closer to international justice system. In so doing, efforts must be exerted not turn the Judia into a retributive system akin to modern courts. The value of the Judia lies in its drive for restitution and reconciliation. Pushing the Judia too much into the realms of the modern courts with their emphasis on punishment is imprudent and counterproductive (Shema, 2009). The challenge then is how to improve the justice delivery of Judia while maintaining at least some of its traditional ethos.
Despite the scale of atrocities in Darfur, it is anticipated that the Judia will face less work in comparison to Gacaca. Hence, overseers of the Judia can afford to limit its deliberations to relatively minor offences. All crimes leading to fatalities can be removed from Judia jurisdiction and be transferred to the national justice system. Cases of rape too should be taken out of the Judia. The gravity of war rape is demonstrated by its historic classification as war crime in the ICTR. As such, the Judia will then be mandated to deal with damage to property including theft and #####ng, non-fatal injuries, terrorising and intimidations of civilians.
There is no doubt that the Darfur crisis represents a conflict between the centre and a periphery. Nonetheless, the crisis manifested itself in the region pitting one broad coalition of groups against another. This division is bound to resonate in the constitution of the Judia tribunals. More often than not, an administrative territory which constitutes a base for a Judia court may coincide with a single dominant ethnic group. Judia courts must be prevented from acting as mechanisms for forwarding the narrow interests of a dominant ethnic group to the detriment of others. Hence, modalities guaranteeing a fair ethnic mix of Judia courts must be envisaged prior to the constitution of these courts. This will increase fairness and pre-empt possibility of the Judia falling into what Hansen refers to as “victor’s justice” Hansen, 2005:4).
Blatant interference by the post-genocide Rwandan government is widely reported. The government intervened in the mandate of Gacaca, its deliberation process, in the availability and release of detainees to be tried and intimidation of its judges (Hansen, 2005; Amnesty International, 2002b:6-7). This scenario is likely to be attempted by post-war government in Darfur. Insulation of the Judia from negative government interference must be ensured and clearly embedded in Judia rules.
As I have alluded to before, the Judia has evolved to deal with conflicts of peace time. The war in Darfur creates a new context that presents the Judia with new challenges. One of those is the challenge of having to do with unconventional clients including minors, rape victims and sufferers of post-war trauma. Judia judges must be trained to isolate these cases and accommodate them in its deliberations. But mere sensitivity of judges to these cases alone is not sufficient. A mechanism whereby the Judia can make use of trained personnel in the areas of post-war trauma, rape problems and minors must be provided.
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Elmuiz Haggaz
فيس بوك
تويتر
انستقرام
يوتيوب
بنتيريست