BARTOLOMÉ, A (2004) Blended Learning Conceptos básicos Píxel-Bit.

When societies emerge out of conflict or from the rule of an authoritarian regime, they face enormous social, economic, legal and political problems. A crucial point here is how these problems might be formulated and confronted. In responding to past violations, the society should address questions of importance to the collective as well as its individual members. The understanding of whether and how a society has framed and responded to these questions is essential.266 However, these processes are very challenging in light of the different agents forwarding various and complex needs to new regimes. A discussion of these challenges is useful to the understanding and evaluation of the Ethiopian transitional justice process.

It is suggested that most societies in transition face “conflicting perceptions, demands, hopes, and fears concerning justice, truth, national reconciliation, and the building of more stable democracies.”267

It is clear such perceptions guide many decisions relating to the questions of dealing with past abuses.268 However challenging it may be, the new regime has to make crucial decisions, and whether the decisions are legitimate in answering various demands should be considered in each context. In so doing, there needs to be a general framework for answering the various questions that arise.

The first fundamental and decisive question is whether a society has to address its violent past.269 This relates to the decisions “whether there should be investigations, prosecutions, amnesties, or pardons for particular individuals or crimes.”270 What needs a decision first is not on the choice of modalities. Rather, the first issue is whether one has to deal with the past. The issues regarding mechanisms depend on this first judgement.

265

Although this issue is partly addressed in Chapter 2, we still need to consider people perception of such definition

266

see ELSTER J, Above n 184 at 116. According to Elster, “many of these transitional decisions do not reflect a deliberate choice among alternatives. In negotiated transitions, the outgoing leaders may exclude some options as a condition for handing over power. In other cases, some options emerge only after other solutions have been tried and found wanting.” (p.116)

267 SEGAL, R L, Above n 216 at 433 268 SEGAL, R L, Above n 216 at 433 269 ELSTER, J, Above n 184 at 116 270 SEGAL, R L, Above n 216 at 433

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From an historical point of view, there are many instances where societies have decided not to deal with the past (refraining from opening up wounds) for different reasons. Such was experienced in Spain, Brazil, Chile, Uruguay, and former Soviet Union.271 The reasons for this may be as follows:

In some, the abstention was endogenous and consensual while in others it is attributed to self-amnesty. Still in others, it was out of fear of how former military regimes might react to prosecution. Still in others, it is due to the lack of any organized demand for justice.272

It is, however, important to stress two things. The first is that the existence of amnesty does not in itself mean that the society has let the matter be once and for all. The Chilean experience is a clear example of how societies may eventually ignore the amnesty law to give themselves an opportunity to come to terms with their past as their fears of past regimes subside. Secondly, an amnesty may be granted as a mechanism of dealing with the past as in South Africa where it served as an incentive to uncover the truth and promote reconciliation.

If a society decides to deal with past wrongdoing, it has to address various subsequent questions. These include what is to be achieved by confronting the past and how this is to be achieved. The goals may include justice, truth, reparation, reconciliation or a combination of these. These goals may lead to either the institution of criminal proceedings or the establishment of truth finding institutions or both. It is also noted, “several successor regimes have confronted demands that the new regimes adopt ‘lustration’ or screening laws providing non criminal sanctions....”273

A society may also have to decide “whether to permit civil suits against alleged violators of rights, including torturers and murderers.”274 There are strong and persuasive arguments and counter-arguments in addressing these relatively general issues.275

271 ELSTER, J, Above n 184 at 116 272 ELSTER, J, Above n 184 at 116 273 SEGAL, R L, Above n 216 at 433 274 SEGAL, R L, Above n 216 at 433 275

These arguments will be discussed in the subsequent chapters. For example, we have arguments in support of retributive and punitive courses of actions including criminal prosecution. See SEGAL, R L, Above n 216 and Diane F. Orentlicher. On the other hand, we have strong critics of the punitive/retributive action but support truth commissions. See HAYNER, Above n 175.

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Questions that are more specific follow depending on the answers given to the preliminary questions above. For example, an essential decision is required regarding “what and who shall [constitute] wrongdoing and wrongdoers.”276

A specific example is the need to determine the severity of the crime to be prosecuted, which in itself raises a number of questions in light of international law, policy constraints, resources and justice.277

A further question that arises in dealing with the past is the scope of wrongdoing and the wrongdoers to be subjected to the transitional justice process. In certain societies, both the former regime and its oppositions might have possibly committed violence/crime. In this respect, the main question is whether the transitional justice process should address all those who were involved in past violations. In this respect, it is noted that the “delicate question is whether retribution [or truth finding or reparation] shall be one-sided or even-sided - whether acts of wrongdoing shall include only crimes committed by agents of or collaborators with the former regime, or whether crimes committed by the opposition and its supporters to the regime should also be covered.”278

The question of one-sidedness or even-sidedness cannot be confined to prosecution or punitive measures alone, and relates to all measures of transitional justice including truth finding and reparation.

As long as the purpose of transitional justice is to deal with the past, it is logical and appropriate for the process to be all-inclusive. It would appear difficult to support distinctions being made between categories of wrongdoers.279 The South African experience provides useful lessons. In South Africa, both the former regime and the opposition were subject to the same process of transitional justice. In other words, the law setting up the South African Truth and Reconciliation Commission dealt with members of the opposition or liberation movements and of the state security “in an entirely symmetrical manner.”280

Reportedly, Bishop Desmond Tutu “threatened to resign from the Commission unless the African National Congress formally acknowledged that it, too, was responsible for human rights abuses.”281

It is further asserted, “the hearings on Winnie Mandela’s activities made it clear

276

ELSTER, J, Above n 184 at 118

277

See SEGAL, R L, Above n 216 at 433

278

ELSTER, J, Above n 184 at 121

279

The Ethiopian prosecution process is based on the distinction between wrongdoers, because only the Dergue was defined as a wrongdoer/perpetrator, and the justifications for so doing will be evaluated in the later chapters.

280

ELSTER, J, Above n 184 at 121

281

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that the Commission did more than play lip service to this principle.”282

In the run up to the release of the Commission’s report, the ANC was disappointed with the draft report and tried unsuccessfully to get a court order against its publication.283 The fact that the ANC was fighting the apartheid regime did not exclude it from the Commission’s investigation and publication of its involvement in past crimes. Similar approaches were taken in Argentina’s criminal proceedings and Chile’s Truth and Reconciliation Commission.284

The mandate of the Chilean Commission directed it to investigate “disappearances after arrest, executions, and torture leading to death committed by government agents or people in their service, as well as kidnappings and attempts on life of persons carried out by private citizens for political reason.”285

So, the question of even-handedness or otherwise in the transitional process is a crucial one. This question arises regardless of whether a society is aiming at criminal prosecution, truth finding, purges, reparations, reconciliation or a combination thereof.

Purges and compensation measures involve further specific questions. For example, in the case of compensation, it is crucial to identify the loss or suffering that is compensable. In other words, there is a need to decide first what forms of suffering constitute victimhood.286 There are also questions regarding the point of departure in terms off setting the time in compensating past wrongdoing and the mode of compensation.287 The new regime has to make decisions, among others, regarding “whom to try, sanction, and compensate; and how to try, sanction, and compensate.”288Generally, if new regimes make a decision to confront the past, they face consequent substantive and procedural issues. These issues of substantive and procedural nature range from laying down the general framework of transitional processes to the actual operation of the framework in individual cases. Generally, societies in transition need to address multiple and complex questions in responding (or even not responding) to past violations.

These discussions are useful for the analytical part of this study because the transitional justice process of Ethiopia can be examined in light of the manner of adopting the processes.

282

ELSTER, J, Above n 184 at 121

283

HAYNER, PB, Above n 175 at 44. On the other hand, the former President F.W.de Klerk successfully sued to block the commission, at least temporarily, from naming him in the report.

284 ELSTER, J, Above n 184 at 121 285 HAYNER, PB, Above n 175 at 36 286 ELSTER, J, Above n 184 at 127 287 ELSTER, J, Above n 184 at 127-129 288 ELSTER, J, Above n 184 at 129

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The perception of the incoming regime, public participation, the proper determination of wrongdoers and victims, the idea of one-sidedness or even-sidedness, and timeframe are essential points of evaluation of the Ethiopian transitional justice process, as will be undertaken in Chapters 5 and 6.