National reconciliation and unity unattainable without justice, accountability: international experts

Two experts involved in the justice process during political transitions in Africa and Latin America share their insights in Dhaka

Two leading experts on transitional justice have underscored the importance of justice and accountability in fostering national unity during a country's transition.

On Thursday, Yasmin Sooka, a South African human rights lawyer, and Carlos Castresana Fernandez, a seasoned lawyer and prosecutor with experience in Latin American legal systems, shared their experiences while speaking at a discussion on transitional justice at the Supreme Court Bar Association auditorium in Dhaka.

The event titled, "Truth, Justice, Accountability, and Reparations for Crimes against Humanity: Comparative Experiences from Africa and Latin America", was co-organised by the Bangladesh Legal Aid and Services Trust and the South Asian Institute of Advanced Legal and Human Rights Studies.

Sooka, known for her work in countries such as South Africa, Sierra Leone, and Sri Lanka, emphasised the need for justice as the cornerstone of national reconciliation.

"A big lesson," she offered, "is that you cannot achieve reconciliation or national unity without justice. Justice and accountability are key elements in this process.

“When we talk about accountability for crimes, we have to remember that it is very difficult in many countries,” she added.

Fernandez, who has worked in Argentina, Guatemala, and Colombia, cautioned against pursuing a blanket approach to justice in post-conflict situations.

He warned that attempting to try everyone could destabilise the law and order of a newly transitioning country.

He suggested that trials should be conducted in a manner that marks a clear turning point for a nation.

"You can do something important like — showing that you cannot completely fix the past, but you can restore law and order and create preventive measures to prevent such things from happening in the future."

Fernandez remarked, "You cannot punish everyone. However, everyone will understand that you have been able to ensure justice in some major areas."

Sooka, a former member of the Truth and Reconciliation Commission of South Africa and the Truth and Reconciliation Commission of Sierra Leone, has also served as a member of the UN Secretary-General’s Panel of Experts on Accountability.

During her tenure as a member of the panel, she was tasked with investigating war crimes committed during the final stages of the Sri Lankan civil war. She currently chairs the UN Commission on Human Rights in South Sudan.

Fernandez, with over 30 years of experience as a lawyer, magistrate, investigating judge, and prosecutor, currently serves as the UN Commissioner for Human Rights in South Sudan. He is also an advisor to the Special Jurisdiction for Peace in Colombia. He has previously served as a Commissioner for the International Criminal Court in Guatemala.

Sooka emphasised the importance of holding perpetrators accountable for their crimes, framing it as a central challenge that societies must confront.

"In my country (South Africa), I have worked to resolve more than 200 cases through the courts over the past 15 years since the political transition," Sooka said.

"The goal has always been to ensure that affected families receive justice against those responsible."

The South African human rights lawyer also outlined the four fundamental pillars of transitional justice - the right to know the truth, the right to a fair trial, the right to redress, and the assurance that such incidents will not happen again.

"That is, if you can fix the first three - create new institutions, reform security forces, and root out bad people - then you can say that you can guarantee that there will be no recurrence.”

Sooka also pointed to the troubling acceleration of delays in justice in countries where corrupt political elites seize control of state institutions.

"I have seen this in many places, including my own country, where corrupt political figures take control of key state institutions," she said, citing the justice system in South Africa as a prime example.

"We cannot expect the judiciary to act independently when it is under the influence of those who control the prosecution and investigative systems, as well as other key state institutions."

The human rights lawyer noted that in South Africa, such institutional control had contributed to a cycle of crime and violence, a phenomenon that has occurred in numerous countries globally.

While acknowledging that delivering justice in such an environment is extraordinarily challenging, she insisted that it is not impossible.

"If the affected people can access both domestic and international justice mechanisms, there is a path forward," she explained.

The former Sri Lankan civil war crimes investigator also identified the lack of evidence as a significant barrier to securing justice, emphasising the need for training prosecutors in digital forensics. "In cases where corrupt officials or human rights violators are shielded from prosecution, international courts may provide a viable alternative for justice."

Reflecting on South Africa’s experience, Sooka said: "In South Africa, there were arguments suggesting that peace must first be established before justice could follow," she recalled.

"Many, including those from the apartheid regime, believed that establishing peace and resolving conflicts should precede justice. But for the victims, the main concerns were about redress, accountability, and bringing the perpetrators to justice."

She also noted the complexities of pursuing justice in a system where trying everyone could risk the collapse of the entire structure.

"In such a scenario, we offered an opportunity for individuals to come forward voluntarily within a set timeframe and confess their crimes," she explained.

"If they could prove that they had committed crimes under the direction of the state, they would be pardoned and would not have to go to jail."

The human rights lawyer shared that the South African Truth and Reconciliation Commission was a groundbreaking moment in global history.

"It marked a pivotal moment because it was the first such commission in the world.

"This wasn’t just about examining individual rights; it was also about understanding the broader historical context. Through this process, we uncovered the conditions under which these rights had been violated," Sooka added.

VICTIMS ENSURED JUSTICE

Fernandez underscored the crucial role played by victims, their families, and human rights activists in ensuring the trial of the two dictators in Argentina and Chile.

He pointed out that in many instances, the perpetrators not only committed crimes but also worked to absolve themselves of responsibility by taking control of state institutions and manipulating the justice system.

"30,000 people disappeared in Argentina," Fernandez recalled.

"When Raúl Alfonsín assumed power and sought to bring the military junta to justice, there were two coup attempts during the trial. Following that, two amnesty laws were passed, and a presidential pardon was issued. Jorge Rafael Videla, despite being sentenced to life imprisonment, was released."

Despite these setbacks, Fernandez noted that the victims did not relinquish their demand for justice.

"The victims never gave up hope," he said.

"This is crucial—the victims continuously demanded justice, and their persistence ensured that justice was eventually served."

Fernandez then went on to describe how justice was eventually achieved in Argentina after initial setbacks. He explained that Videla, after being released due to amnesty laws and a presidential pardon, was retried in Spain under the international jurisdiction of his 1984 trial.

Meanwhile, in Argentina, the situation shifted, and the amnesty law was repealed, leading to his retrial. Videla was ultimately sentenced to life imprisonment and died in prison.

Turning to Chile, Fernandez discussed how, instead of facing an immediate trial, a transitional remedy was established through the Truth Commission.

He pointed out that General Augusto Pinochet, who ruled Chile for 17 years, was able to shield himself from accountability due to this arrangement.

"Pinochet became a successful dictator and received lifelong immunity despite committing heinous crimes," he said.

"He ruled for 17 years, and within the first days of his regime, 3,000 people were killed and 1,200 disappeared. After losing a referendum in 1988, he managed to secure his own immunity from prosecution. Through parliament, he obtained lifelong immunity, ensuring he could never be tried during his lifetime."

However, Fernandez noted that, similar to Argentina, the victims in Chile did not abandon their pursuit of justice.

"Chilean human rights activists kept fighting," he said. "They brought charges against Pinochet in Spanish courts, including allegations of genocide, terrorism, and torture."

He continued, "Specific allegations were made about 200 disappearances, and over 30,000 torture charges were filed. Evidence was presented in British and Spanish courts. Yet, the British High Court granted Pinochet immunity, citing the principle that heads of state are immune from prosecution in international courts. But we did not give up. We took the case to the House of Lords, continuing to press for justice."

Fernandez described how the legal battle over Pinochet’s immunity played out, recounting that the Spanish court ultimately ruled that the case fell under international jurisdiction.

"The Spanish tribunal decided that since Pinochet was no longer the head of state, he was no longer immune," he said.

"Moreover, the crimes of torture could not be exempt from international law."

He then went on to explain the pivotal moment in the legal fight.

"After relentless efforts by human rights activists, the House of Lords ruled in 1999 that Pinochet should be extradited to Spain for trial, with the condition that the charges of torture after 1988 would be pursued."

While acknowledging that Pinochet was never fully tried due to various legal challenges, Fernandez emphasised the importance of the legal shift in Chile.

"The cancellation of Pinochet's immunity in the Chilean parliament marked a significant change as the transitional period passed," he noted.

"Although numerous attempts were made to bring him to trial, he was ultimately never prosecuted. However, this legal fight marked a turning point: Pinochet could now be held accountable through international justice mechanisms."

Reflecting on the complexities of prosecuting crimes committed in transitional societies, he noted that in some instances, it is not possible to try perpetrators in the country where the crimes occurred.

"In some cases, you cannot try the crime where it was committed," he said.

"You have to take it elsewhere. It has long been established that international criminals can be tried internationally."

He pointed to the broader framework that allows for international justice, specifically under the International Covenant on Civil and Political Rights, which was signed in 1976.

"This covenant established international access to justice for crimes like genocide, torture, and disappearances," Fernandez explained.

He also elaborated on the obligations countries have under the covenant.

"Countries are committed to protecting their citizens and ensuring that human rights are upheld. If violations occur, they must investigate, prosecute, punish, and provide remedies to victims."

However, he acknowledged the immense difficulty of carrying out such obligations in a transitional period.

"It’s incredibly challenging to do this during a transition," he said.

"The judiciary, security situation, prosecutorial authority, and prison systems are often part of the problem, not part of the solution. In these cases, you must find alternative ways to ensure accountability and justice."

Fernandez emphasised that the central goal of justice and accountability in transitional contexts is "moving from conflict to coexistence, and through that, restoring law and order”.

He clarified that while justice cannot undo the wrongs of the past, it plays a crucial role in ensuring accountability for crimes.

"Justice ensures that perpetrators are punished and, importantly, demonstrates that institutions must function properly. Moving from conflict to coexistence and restoring the rule of law are fundamental steps in the process,” he added.

BLAST Honorary Executive Director Sara Hossain said, “Bangladesh is going through a critical time when it is crucial to ensure that justice and reconciliation go hand in hand. Often, courts are overstretched and it shows how civil society can help ensure interim justice.”

BLAST Vice-Chairman Shamsul Bari chaired the discussion.