Following a discussion of the needs of families of the Missing in Chapter 1, this section will reflect on existing experience of the effectiveness of various transitional justice mechanisms to address those needs.
Exhumations and the truth about the fate of the Missing
Where the Missing are confirmed dead, return of human remains is a priority of families (Section 2.3). However, the scale of the problem, the technical challenges and a lack of resources will often prevent significant action being taken towards identifying gravesites,
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exhuming remains and identification. In some scenarios, bodies are not retrievable; in many cases efforts will have been made by perpetrators to prevent remains being exhumed.8 Such challenges are additional to the political obstacles that must be overcome for such investigations to begin.
The very substantial resources devoted to prosecutions of violations, notably by the International Criminal Tribunal for Yugoslavia, have driven much of the work of exhumations of victims of conflict in recent years. In the decade of the 1990s, “134 anthropologists from 22 nations investigated nearly 1300 sites in 33 countries” (Steadman and Haglund, 2005: 1), in an attempt to retrieve remains of victims in connection with human rights investigations. Tensions have arisen between the legal and evidentiary needs of prosecution and the needs of families of victims, notably over the issue of individual identification, which is often unnecessary in a trial (Stover and Shigekane, 2002). Where exhumation and identification is driven by a humanitarian need to identify bodies, a process of collecting both ante-mortem and post-mortem data is required (Huffine et al., 2001). Where resources permit, in terms of both finance and expertise, DNA testing can be used to confirm matches made between ante and post- mortem data, and such a process has been widespread in the Balkans (Wagner, 2008). In many contexts however where families have a desperate desire to know the fate of missing relatives such resources to identify the Missing are not available.
Culture is a crucial factor in defining the needs of families of the Missing (Section 2.3) since Western concepts of trauma will often fail to resonate in traditional societies which will interpret the impact of loss and ambiguity in ways that derive from their own cultural traditions. Kwon (2008) describes how the ghosts of the Missing in Vietnam from the American war haunt survivors, urging them and aiding them to ensure that they are buried in ways which honour them appropriately. In Zimbabwe, victims of those killed in the Matabeleland violence of the 1980s saw their needs as driven by the ancestral spirits: the greatest issue was to give an appropriate funeral and other rituals to the dead which not been possible for the Missing. They were in graves considered unacceptable, which caused tremendous psychological suffering since the spirit of the dead could not return as an ancestor (Stover and Shigekane, 2002). Exhumations had no legal goal, but were done simply at the request of families:
8
An infamous example comes from Argentina‟s „dirty war‟ in the throwing of live, drugged detainees into the sea from aircraft, so-called „death flights‟ (BBC, 2005).
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[T]he process of exhumation and reburial does physically what psychotherapists in the west do metaphorically - it encourages people to explore their past and see the links with their current experiences. (Eppel, 2002)
This emphasises the extent to which humanitarian responses to the issue of Missing persons should ideally be driven by families and communities, and not be determined by outsiders‟ preconceptions. In some cases, the human rights discourse which drives much work around such crimes, despite its claims to universalism, privileges priorities rooted in cultures other than those in which victims live. This issue is discussed further in Section 9.3.
Truth and acknowledgement
After conflict, truth will emerge subject to both political agendas seeking to advance certain narratives and personal and collective memory, and in turn each will mediate the other. Truth Commissions represent an effort to formalise the construction of such narratives and have become the principal transitional justice mechanism tasked with delivering (or „recovering‟) truth following conflict and political violence. These are bodies authorised by the state that focus on past events and investigate a pattern of abuse over some fixed time period (Hayner, 2011). The Truth Commission emerged as an alternative to trials in contexts where prosecutorial process was not (or not yet) possible due to limiting political factors and so represented: “principled compromises on the transitional justice issue of „punishment or impunity‟” (Teitel, 2000: 81). In practice, truth commissions are a way of mediating memory (Andrews, 2003), determining what should be remembered and what forgotten in the construction of a state‟s post-conflict identity. The early Truth Commissions were able to not only find evidence that a regime had committed violations, particularly concerning disappearance, as in Argentina and Chile, (Aguilar, 2002; Graham-Yooll, 2005), but to recover truths that previous regimes had sought to hide in such a way that society could be confronted with the reality of what had happened, and on that shared understanding move forward.
The linking of the Truth Commission to concepts of restorative justice (Section 1.2) and the emergence of a narrative of „truth as healing‟ can be traced to the South African Truth and Reconciliation Commission (TRC) where amnesty was explicitly given to perpetrators in exchange for truth. As a result of the South African TRC truth and reconciliation and, more explicitly, truth as reconciliation, has become a dominant
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narrative of transitional justice. This claims that the public telling of truth leads to healing for victims individually, and through the broader truths that emerge, healing and reconciliation for the nation as a whole: what has been called a „therapeutic ethic‟ (Colvin, 2003). The TRC claimed to be „victim-centred‟, as a result of this process being primarily performative, institutionalising the truth claims of victims through public truth- telling with the social goal of reconnecting victims and society (Humphrey, 2003). In addition to the product, i.e. its final report, the TRC emphasised the importance of the
process of truth recovery. Trauma as the lens through which to understand societies
emerging from mass violence has led to a medicalisation of the understanding of the impact of war on civilians (Summerfield, 2004), dominated by approaches that co-opt psychoanalytic concepts of cathartic release and apply them to societies as a collective. This entirely Western lens largely neglects indigenous or grassroots approaches to addressing the impact of conflict, privileging prescriptive solutions imported from a global discourse that “analyses political, economic and social issues in terms of cycles of emotional dysfunction” (Pupavac, 2004). The trope of truth as reconciliation underlies a broad range of recent transitional mechanisms and yet appears to be rooted in little empirically tested practice. The relevance to victims of a discourse of truth as healing is discussed in Section 8.2 in the light of the findings of this study, which represent an effort to empirically test the claims that, for victims, truth (and explicitly the truth of a Truth Commission) is healing. Beyond the claims of „healing‟, Truth Commissions can potentially address the needs of families of the Missing in several ways:
Acknowledging the fact of disappearance, and the responsibility for it; Learning the fate of the Missing;
Instigating exhumations;
Giving a public forum in which families can present their testimony; Initiating compensation and reparation schemes;
Naming perpetrators and initiating prosecutions.
Despite the South African TRC having been the object of huge study rather little data is available about how its work is perceived by victims.9 The most comprehensive study of victims‟ responses to the TRC, by the Centre for the Study of Violence and Reconciliation (1998), suggested that victims wanted those perpetrators who had been amnestied to contribute to their reparation and rehabilitation. Victims expressed the view
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that their role in the TRC process was not sufficient, and that they would be interested to meet with perpetrators: an echo of the idea of encounter that is a pillar of restorative justice (Section 1.2). It has been suggested that exposure to discussion of trauma, and the potential retraumatisation, in such a forum can be damaging for victims (Silove et al., 2006; de Ridder, 1997). Many victims‟ families were angered by perpetrators walking free (Gibson and Gouws, 1999), but South Africans in general found amnesty to be unfair but necessary (ibid).
More recent truth commissions have reflected a growing global intolerance of impunity and typically have a connection to a prosecutorial mechanism. In most cases, a Truth Commission is not able itself to address the need for the truth about the fate of the Missing. Investigations, exhumations and identification require substantial dedicated resources, technical expertise and a long timescale, making the Truth Commission approach imperfect for the task. In practice, Truth Commissions have been able to demonstrate the fact of disappearances and to document representative cases. In the most successful contexts this has then served to initiate the action required to learn the fate of the Missing, and address other needs of families. The South African TRC was able to conclude from testimony that the state was centrally involved in sanctioning and planning disappearances (Republic of South Africa, 2003: Section 4:1). As a result, a number of exhumations were made by the TRC itself (ibid: Section 4:2) and, on its recommendation, a Missing Persons‟ Task Team created to make further investigations, to confer victim status on the disappeared, allow families access to reparations, identify gravesites and facilitate exhumations (EAAF, 2008; Republic of South Africa, 2008).
An alternative path to truth for families of the Missing is through a mechanism that explicitly engages with perpetrators of disappearances, using confidential channels to encourage disclosure on a humanitarian basis. Such mechanisms, typically called Missing Commissions or Working Groups, are generally established after conflict by the concerned state or states, often with an international or neutral third party presence:
The commission‟s mandate should be independent and humanitarian, focusing on the provision of remedies and information. It should be in contact and approachable by the families. Its first goal should be seeking to clarify the status of the missing. It should answer the question of whether someone is dead or alive, if dead the circumstances of the death and the location of the human remains. It should as well work on proper exhumation of the
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human remains and on identification of the recovered remains. (Werntz, 2007, discussing the possibility of a Missing Commission in Nepal)
To function effectively such mechanisms have to engage with those persons, usually the political leadership of the parties to the conflict or their successors, who have access to the information needed to resolve the fate of the Missing. The element of engagement with perpetrators is crucial, and an inability to do this is the most frequent cause for the failure of such mechanisms, often exacerbated by the political use of the Missing issue. At their most successful, such mechanisms offer truth and the return of remains, but not prosecutorial justice. The Commission on Missing Persons in Cyprus (CMP), containing representatives of both main communities on the island, is leading a non-sectarian process that, after years of inactivity, has in recent years led to hundreds of exhumations and identifications of the Missing (Kovras, 2009). Following the Dayton Peace Accord of 1995, in Bosnia and Herzegovina a Working Group on Persons Unaccounted for brought together representatives of the Governments of Bosnia and Herzegovina from the three principal communities. Using information gained from the Working Group, and the identification technology of the Sarajevo based International Commission on Missing Persons (ICMP), the mortal remains of more than 5,500 persons have been returned to families (ICRC, 2008a).
Reparations and memory
Reparation refers to the obligation of a wrongdoing party to redress the damage caused to an injured party (Permanent Court of International Justice, 1928), and international law has established a „right to reparations‟ (Joinet, 1997). Reparations encompass three main types of remedy: restitution, compensation and satisfaction. Restitution aims to restore the conditions that existed prior to a violation, something impossible of course where a missing person does not return, but where efforts can be made to address some of the impacts on a family. Compensation involves monetary payment for material or moral injury, while satisfaction addresses non-material injuries and may involve official apologies; assurances of non-repetition of the offence; judicial proceedings; and truth and reconciliation commissions (Bradley, 2006). In many transitional contexts, where justice is absent or incomplete, reparations may be the most tangible manifestation of the state addressing harms suffered by victims of conflict (de Grieff, 2008). Reparation also has a significant socio-political role, to impact on the broader society through the drawing of a line under past violations and the reinforcing of a commitment to the rule of
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law. Indeed, it is seen that the reparative demands of victims often demand the changing of state behaviour.
Reparations are an approach to political violence that attempt to link the addressing of individual needs, emotional, psychological and livelihood related, with norm-setting processes in society that aid recovery. The victim-centred approach taken here will focus on the impact of reparations on victims, but will also consider implications for the broader community. Reparations are the one mechanism that should be intrinsically victim-centred and such efforts will fail to be reparative if victim needs are not considered. Yet very often reparation schemes fail to consider victims‟ wishes in their design and implementation (Waterhouse, 2007). The literature of reparation consistently blurs boundaries between the rights of victims as outlined in legal instruments and their needs as they express them (Cullinan, 2001). The Basic Principles (UN General Assembly, 2006) do not mention the word „need‟, but state that “[r]eparation should be proportional to the gravity of the violations and the harm suffered” (7: IX, 15). This is an acknowledgement that needs must play a role, even though there is a reluctance for the rights vocabulary to accommodate such language on the understanding that it is the violation that creates a right to reparation and not the harm suffered (e.g. Mario-Rubin, 2008).
Reparation, whilst potentially providing material compensation to victims, is primarily about acknowledgment of what has happened and the responsibility for it, and is thus intimately linked to concepts of truth (see above); in some contexts victims seek that the state or perpetrators themselves provide such recognition. The financial component is a way of demonstrating this, and not an end in itself. Where reparations have been financial, putting a value on a life is problematic, and the families of some victims have rejected such payments (Femenia, 1987). Reparations can equally be symbolic, and involve the state supporting restorative processes such as death certificates to families of the Missing or the facilitation of exhumations. Symbolic or non- financial reparations can include formal acknowledgement of the truth regarding the Missing, official apologies, designating days of remembrance, granting the Missing an official legal status, construction of memorials and appropriate reburial services (Jelin, 2004). Thus, reparation can have a beneficial effect on victims as part of the rehabilitative process (El-Sarraj, 1995), although the impact of reparations on victims is little studied:
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A major gap in the literature found to date is in the area of follow-up studies of survivors who have (or have not) received reparation. In the absence of studies into the effects of reparation, one is faced with speculation and generalizations. (Cullinan, 2001: 50)
One study with ex-political prisoners in the Czech Republic (David and Choi Yuk-ping, 2005) showed that only a minority of victims was satisfied with financial reparation, but that money increased access to rehabilitation and symbolised social acknowledgement and justice (ibid.). In South Africa, a study found that victims regarded reconciliation and reparation as linked, and were generally in favour of symbolic reparation (Centre for the Study of Violence and Reconciliation, 1998). A review of reparations processes (Waterhouse, 2007) suggests that reparation that prioritises action by perpetrators rather than the recovery of victims replicates the role of victims as passive objects: “programs that enable victims to play a part in critical societal institutions offer a more thorough remedy to past harms by fostering victims‟ moral agency.” (ibid: 2).
Memory is the way in which truth is assimilated into narrative, both individual and collective (Assman, 2006). The literature of transitional justice however has little room for individual memories, focusing on collective memory and the impact of institutional processes, such as the reports of truth commissions and national memorials (e.g. Jelin, 2007; Hutchinson, 2009), rather than processes that are enacted in the social spaces of family and community. Even in societies where the spiritual is not greatly relevant, the Missing can be said to haunt the present, there but not there at both a personal and a political level:
A missing person is a human being without a body, a voice which cannot be heard, but is always there, a memory which refuses to go away. (From a leaflet of the Pancyprian Committee of Relatives of Undeclared Prisoners and Missing Persons, Nicosia, Republic of Cyprus: Quoted in Sant Cassia, 2005: 83),
Whilst there is clearly a connection between a family‟s traumatic memory of an individual disappearance and national schemes to remember the dead and the Missing (Bell, 2009), little has been written of how individual events of violence, and experience of them, are transformed by politics and power into formal memorialisation. Indeed, the focus of memory scholarship on events that collectively traumatised the West such as the first World War and the Holocaust appear to drive the study of such issues away
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from the individual and towards an emphasis on scale and the collective (e.g. Winter, 2010). This study will take a converse view and study memories and the need for memorialisation within families and infer how processes of remembrance and institutions can serve these.
Memorialisation traditionally serves the powerful in society as part of the politics of a transitional process (Jelin, 2007) and as such is rarely done exclusively on the terms of victims. Sant Cassia (2005), for example, has written powerfully about how in Cyprus memories of the Missing have been manipulated by the state to reinforce certain narratives that directly impacted how families perceived the fate of missing relatives. This echoes the great distance between private memory and public representations found in the authoritarian societies where disappearances occur. However, memorials can also promote social repair through acknowledgement, and have the potential to be restorative (Barsalou and Baxter, 2007). For families of the Missing, where human remains may not be retrievable a memorial can be a space for mourning and remembrance while physically refuting the effort at disappearance. Pollack (2003) discusses the attitudes of the families of the Missing from the Srebrenica massacre, who believe that the memorial located at a mass burial site where killings occurred, takes precedence over individual identifications. As part of reparative process, a memorial can endorse and institutionalise those narratives regarding the past privileged by victims.
Trials and judicial process
It is almost universally presumed that prosecutions benefit victims and that impunity is in itself traumatic for survivors. Where no measures are taken against those who caused the injury; some authors (Edelman, 1996; Rauchfuss, 2008) contend that a life of repetition of the trauma is created and that impunity is devastating for the health of the survivor:
Impunity interrupts the normal process of healing of the survivor of repression, the grief of the families of disappeared victims, and the process