In Part I, our analysis was largely based on an inductive approach, looking first and foremost at the practice of transitional justice as it developed throughout Burundi's legal and political history until today. We have shown that, to a large extent, primarily political factors have dominated Burundi's transitional justice history and shaped the legal framework of transitional justice in the country. We have also summarised and contextualised some of the main issues the Burundi case-study raises for law, lawyers and legal research. It is now time to turn our attention to two specific elements: (i) the international legal framework as a source of obligations and rights (field A – Chapter 5), and (ii) the role of Burundi's Constitutional Court as a domestic mechanism of adjudication in transitional justice (located within field B – Chapter 6). This combination expresses a preference for a combination of international norms and domestic enforcement bodies.

Regarding the former element, the growing impact of international law on Burundi's (draft) transitional justice law and (expected) transitional justice practice – within the international context of globalisation of transitional justice – has already been hinted at repeatedly throughout the above analysis. This in itself justifies and necessitates a more systematic and comprehensive analysis of rights and obligations under international law, both of individuals as well as of the Burundian State. We will analyse international law insofar as it gives rise to obligations and rights on behalf of the State or of individuals and insofar as they pertain to the transitional justice objectives of truth, accountability, reparation and reconciliation. This analysis will be structured around two main sections. First, an overview will be given of the general applicability of international law to the case of Burundi. This will be done for international human rights law, international humanitarian law and international criminal law, with reference to their concurrent application and to their current status under Burundian law.

International law of State responsibility will also briefly be referred to. Secondly, an analysis will be made of the obligations and rights under the international legal sources that apply to the Burundian situation. This substantive analysis will be limited to those elements that are of relevance from our transitional justice perspective: truth, accountability, reparation and reconciliation.

In recent years, a growing number of countries have tried to come to terms with a past of large-scale human rights abuses through processes of transitional justice. Among them, Burundi stands out as a case that is largely unexplored in international academic literature. After decades of political violence and civil war, an internationally brokered peace process guided Burundi to democratic elections in July and August 2005. United Nations Security Council resolution 1606 (2005) was adopted shortly before the 2005 elections. This resolution requested the UN Secretary-General to initiate negotiations with the Burundian government with a view to establish ad hoc mechanisms (a Truth and Reconciliation Commission and a Special Court), “convinced of the need, for the consolidation of peace and reconciliation in Burundi, to establish the truth, investigate the crimes, and identify and bring to justice those bearing the greatest responsibility for crimes of genocide, crimes against humanity and war crimes committed in Burundi since independence, to deter future crimes of this nature, and to bring an end to the climate of impunity, in Burundi and in the region of the Great Lakes of Africa as a whole”. As of December 2009, at the time of completion of this monograph, no transitional justice mechanism has been established.

This study analyses how, after the various cycles of violence that have profoundly shaped Burundi's history, national and international actors have rendered (or failed to render) justice for the injustices suffered. In particular, it seeks to understand to what extent and under what conditions law has been a valueloaded source of Burundi's transitional justice policy and/or an instrument that was shaped in accordance with the desired end of the political transformation and with the balance of power among its main constituencies.

Scope, Approach and Methodology

This study analyses the law and practice of transitional justice in Burundi. In order to do so, it adopts a largely inductive, empirical perspective, focusing primarily on what decision-makers and other actors have actually done (or omitted doing) in response to the cyclical outbursts of violence that repeatedly caused mass victimization among the people of Burundi.

In Part I, an inductive perspective was adopted in order to describe the legal and institutional setting of how legacies of large-scale human rights abuses have been dealt with (and are being dealt with). This empirical approach was based on an analysis of legal sources, but also described how as a result of other than legal determinants the past violence was dealt with in practice. It has become clear that what was actually done in the name of justice and remedial action sometimes amounted to injustice (or was, at the very least, perceived by many as being unjust and as a way of inflicting more oppressive violence) and most of the time amounted to a failure to render justice and even to merely reveal the truth about the past. This Part II will focus more in depth on the role of the legal component of Burundi's transitional justice experience. To what extent did legal sources shape Burundi's transitional justice process? And to what extent was law itself instrumentalised, shaped in accordance with the desired political end and made to fit the new balance of power? This obviously raises questions about the limits of both international and domestic law in ensuring truth, accountability, reparation and reconciliation in transitional settings. It also raises questions about the relationship between transitional justice and the establishment (or re-introduction) of the rule of law in transitional States.

GENERAL OVERVIEW

Burundi's transitional justice law, policy and practice, as described in Part I, was based on four input factors, the combination of which has determined the way in which legacies of large-scale human rights abuses have been dealt in the case of Burundi. Each of the input factors constitutes a source of Burundi's transitional justice process and can be visualised through the four Fields (A, B, C and D) in the following scheme.

The central Field is the result of the combined input (visualised by the four arrows) from the four individual Fields. Before focusing on the two ‘northern’ Fields, some general comments should be made on the above scheme. First, it has become clear from the description in Part I that the impact of the individual Fields has varied over time. Compared to Burundi's transitional justice experience in the first three decades after its independence, the impact of Fields A and C has generally increased since the early nineties.

You are holding in your hands, dear reader, an absolutely fascinating piece of work – what I believe to be a true milestone in legal scholarship of transitional justice, as well as in our understanding of Burundi. It is very well researched and written, complete and nuanced, thoughtful and creative. It is a true joy in every respect of the work, a brilliant piece of legal scholarship – without doubt the best of its kind I have ever seen.

The case of Burundi is largely unexplored in the international academic and legal scholarship. This is a pity, for Burundi represents a fascinating case of a successful negotiated transition to peace, in which the international community played a major and positive role. There are not many cases where international peacemaking and peacekeeping can be clearly said to be a success, but Burundi is one, and it deserves to be known better for that reason alone.

But this book is important – and brilliant – for far more than merely being about an understudied and interesting case. It truly sets the standard in what to expect of the contemporary legal analysis of transitional justice.

For starters, this work contains a gorgeous historical analysis. This is done far too little. Most studies of transitional justice may give us a short overview of the nature of the crisis, and then they focus solely on contemporary legal and political issues. It is true that in the contemporary period the tools of transitional justice are far more sophisticated and salient than they were in the past (Burundi, as documented by Vandeginste, is no exception to this). But it is equally true that what preceded the contemporary period is not gone, forgotten, or irrelevant. Vandeginste's detailed study of Burundi's post-Independence period shows how transitional law was always a political device for power holders; it also shows the complacency and inefficacy of the international community to make any difference in this sorry situation. Nobody in Burundi has forgotten this – it is only the outsiders for whom history only starts with their arrival. This lengthy section in the book is a model of detail, nuance, and insight, a truly fascinating historical lesson in judicial real-politik.

In so doing, Vandeginste does what he calls, following McEvoy, “thick” legal research, i.e. a combination of legal empirical and doctrinal research with sociopolitical and historical knowledge.

No one could have anticipated the evolution of the Sierra Leone Truth and Reconciliation Commission. After unpromising beginnings as a second-best alternative to trials, with lukewarm support from politicians and former proponents and scant attendance at its early hearings in Freetown, the TRC began to draw packed houses in former occupied areas. Whereas in early hearings senior RUF officials were cautiously questioned and expressed no remorse for their involvement in the brutal insurgency, just three weeks later TRC chairman Bishop Humper carried out a near crusade, imploring collaborators to confess and apologise for their complicity with the rebels.

In this chapter I will briefly describe the origins, mandate and public perceptions of the Truth and Reconciliation Commission and its sometimes problematic relationship with the Special Court. My main purpose, however, is to describe the evolution of the TRC hearings during the two weeks and a day that I attended them in Freetown, Bo and Kailahun over a period of three and a half weeks. I will also discuss the TRC report, which was publicly released on August 8, 2005, and its potential contribution to reconciliation in the country.

THE ORIGINS

With the collapse of the Abidjan Peace Agreement, the AFRC's eight-month takeover of government in 1997–1998, and the brutal January 6, 1999 attack on Freetown, civilian leaders realized that peace would require renewed negotiations and that amnesty would be part of the final deal. In January 1999, government and civil society leaders, who had fled to Conakry, Guinea, began to discuss the potential of a truth and reconciliation commission to address responsibility for the war (Bennett, 2001).

The first meetings were sponsored by the newly-created Sierra Leone Human Rights Committee, a joint eff ort involving government and civil society leaders in exile, the UN and international organizations. The committee struck up a TRC working group which operated under the National Forum for Human Rights, an umbrella group of human rights NGOs in the country. The government human rights commission, the National Commission for Democracy and Human Rights (NCDHR), also began exploring the prospect of a TRC (HRW, 1999b; interview, NGO head, Freetown, April 10, 2003; Bennett, 2001).

In the peace negotiations and cease-fire agreements that led to the civil war's end, negotiators layered the institutional elements of a shared peaceful future, the first form of political reconciliation. Two important reintegrative and conciliatory institutions emerged directly from these talks: the National Committee for Disarmament, Demobilization and Reintegration (NCDDR), which worked together with UN peacekeeping forces (UNAMSIL) to transform excombatants from soldiers into peaceful citizens; and the Truth and Reconciliation Commission (TRC). Two other institutions are also significant for reintegration: the Special Court and the National Commission for Social Action (NaCSA), NCDDR's counterpart aimed at helping civilians.

These four institutions, taken together, formed the mainstay of Sierra Leone's official security, reintegration and reconciliation strategy immediately after the war. Sierra Leoneans would see little justice for the massive crimes committed during the war. Only the few deemed most responsible for these crimes would be indicted by the Special Court and of these, with the exception of Charles Taylor, the leading indictees died in prison or before their arrest. For the tens of thousands of displaced people, war wounded and excombatants, reintegration was driven by the necessity of placating potential spoilers of peace. And it was guided and justified by a tradition-inspired ideal articulated in the much-quoted saying: “There is no place to throw away a bad child.”

Chapter eight examines the ontological vision captured by this expression, the reintegrative work of NCDDR and NaCSA, and the experiences of excombatants returning home. Chapter nine focuses on the TRC's reintegrative and conciliatory roles. And chapter ten looks at the gaps in these processes and the informal ways in which people build trust in the absence of opportunities for direct communication.

When writing about war and the transition to peace it is tempting to relate the basic ‘facts’ of the war – key players, the political and economic circumstances that led to the conflict, the nature of the divisions – as if one size fits all. We might mention that the war targeted certain groups in different ways, and that children, women and men may have played different roles in the conflict. But this still is not enough. The routes to war and peace were shaped by the patrimonial social structures – entrenched in law – that pervade Sierra Leone. To understand the experiences of men, women and children during and after the war, we need a sense of the social structures that shaped their existence.

Mariane Ferme's (2001) ethnographic research in a Mende community helps explain the hierarchical, interdependent and communitarian social structures that exist, with variations, in much of Sierra Leone. Although Krio and Lebanese communities are more individualistic, they still need to operate within this dominant, interdependent system, especially outside the capital.

Ferme (2001) writes that in Mende society, “everyone must be accounted for by someone else –… everyone must be linked in a relationship of patronage or clientship” (p. 106). Unattached people (such as strangers) or those not ruled by traditional, male-dominated power mechanisms (women without husbands) are viewed as “elusive and noncompliant agents” (p. 107) and thus potentially dangerous. These dependency relations are rooted in “the emergent legacy of (domestic) slavery” (p. 82), which colonial officials banned in the protectorate in 1926 and 1927. With the ban, slavery evolved into other forms of dependency as masters married slave women, incorporating them and their relatives into polygamous families. This created a complex network of clientship and patronage that transformed slaves into “‘cousins’ through the politics of marriage” (p. 81). Ferme writes:

The taxi driver is unforgiving and unrepentant. It is March 2003 and we are on Kissy Road, Freetown, Sierra Leone, 14 months after President Tejan Kabbah announced the official end of the country's 11-year civil war. As he inches the cab through the throngs clogging the street around the old clock tower, our driver points proudly to the charred remains of the Eastern Police Station. “Do you see that building there?” he asks. “We burned that down.” The whole judicial system is corrupt, he says, explaining his hatred for the police, who comprise the front line and provide the easiest targets of public frustration with government corruption. Police frequently harass motorists, he says, and while poor men can serve years in prison for minor off ences, wealthy, powerful people go free after committing major crimes. The January 6th 1999 ‘rebel’ invasion of the city – an orgy of murder, mutilation, rape and abduction – provided a chance for revenge. “The only time you could exercise your power was at that time – with the barrel” (of a gun).

Our driver says his ‘brother’ was killed by soldiers of the government-allied West African peacekeeping force, ECOMOG. He boasts that he transported goods for rebel forces during the war and therefore could drive unharrassed in this region. He speaks fondly of the late rebel leader, Foday Sankoh. And he boasts, “In 1,000 years, peace will not come because we will tell our children” about the war and the reasons for it. For all his bravado, his calls for generations of revenge seekers are unconvincing. It simply was not that kind of war.

But also unconvincing are declarations of ‘forgiveness’ and ‘reconciliation’ that I hear repeated like mantras across the country from people who suff ered terribly during the war. “Let's forgive and forget.” “Leave the past behind.” “Swallow the bitter pill” (of no justice for most perpetrators). “Let sleeping dogs lie.” After all that Sierra Leoneans went through during this bitter war, can they really forget the past that easily, or are these the words of people resigned to no justice and determined to get on with their lives in a country rated by the United Nations Development Program (UNDP) as the poorest in the world (UNDP, 2008)?

“YOU ARE A BLOODY REBEL!”: ON THE FRONT LINE

Reconciliation has two faces and two ways of knowing. One face looks out at the world and deals with it in rational terms; the other looks inward and its truths are held in the body and emotions. This latter face understands intangible intelligences – physical, spiritual and emotional – that are no less valid because they are felt. Its vocabulary centres around ‘trust;’ emotional and psychological ‘healing’ and ‘coming to terms’ with events, words that apply to individuals and their relations with others.

When a person learns to trust herself, her community or someone who betrayed her, she will know that trust first in her body, in the same way that she will identify pangs of distrust. She may say she trusts, forgives or is reconciled; she may give logical reasons why someone who has harmed her can now be trusted; but the trust is felt and may not correspond with rational processes. A restorative approach to reconciliation deals with these intangibles. It is, above all, about healing and trust building in the context of human relationships, with all the give and take that human interdependence requires.

That give and take demands something of both off enders and the off ended. To Lederach (1997) reconciliation after a conflict orinjury requires an interplay of truth, justice, mercy and peace. Truth requires acknowledging wrongs and validating losses and pain. But truth is paradoxically linked to mercy, which involves accepting what happened, forgiving, “letting go, and a new beginning.” Justice requires “the search for individual and group rights, for social restructuring, and for restitution” but it is connected to peace, which stresses “interdependence, well-being and security” (p. 29). In these relationships past and future are joined in processes involving reasserting just institutions and a positive peace12 – a concept of peace that includes justice – at the national level, and accountability and personal healing at the individual and group levels.

Acknowledgement of the past but the need to forgive; justice but the need for peace and security: these elements of post-violence recovery arise time and again. Each alone is inadequate.

After mass atrocity, most victims, perpetrators and bystanders must find a way to live together again, at least as fellow citizens. The term that describes this process: ‘reconciliation,’ is one of the most promising and contested words in post-war peacebuilding, yet it has been used so loosely that it has been rendered almost meaningless. Because of this ambiguity, practices designed to achieve reconciliation too oft en bear little relation to peacebuilding goals.

Broadly defined, reconciliation is a process in which individuals or groups that have had a serious conflict or abusive relations attempt to create or restore a “minimally acceptable” relationship (Kriesberg, 2001, p. 48). It implies some kind of ‘coming together’ of conflicting parties but what this actually looks like is heavily debated.

There are limits to the universal conclusions that we can draw about conciliatory processes. Atrocities and war dynamics may look strikingly similar but if we are really to reconcile the tensions that spawned the conflict and recognize paths to peace, we need to step deeply into the politics and culture that preceded the violence itself. We need to merge the skills of the comparative political and social analyst with those of the anthropologist who carefully observes ideologically-bound processes of integration and marginalization in peacetime and is sensitive to the feelings and views of ordinary people. And then, perhaps unlike the anthropologist, we need to return with these insights to the big picture and judge how to move forward.

The Sierra Leone Truth and Reconciliation Commission (TRC) report (2004) recognizes the centrality of local contexts when it states, “There is no universal model of reconciliation that can apply to all countries. Reconciliation is not a concept that can be imported to a country from abroad. It has to emerge from within the society and be owned by the society” (vol. 3b, chap. 7, §6).

Before we focus exclusively on Sierra Leone in parts two to five of this book, the language and concepts surrounding reconciliation need to be clarified. This language should be appropriate for analyzing multiple contexts even as reconciliation needs within those contexts diff er.

Part one draws from the literature on post-conflict transitions to suggest a concrete way of discussing reconciliation that can be applied in many transitional contexts.