Dealing with the Past and Mediation

1. Dealing with the Past and Mediation Schloss Hünigen, MSP/FDFA 19.3.09 Mô Bleeker Senior Advisor Dealing with the Past /genocide prevention, FDFA

2. Dealing with the Past (DwP) and Mediation: Challenges and Opportunity for a sustainable Peace!

3. Overview of presentation: • Importance of DwP • Conceptual framework of DwP • DwP in mediation process • Final remark

4. 1. Importance of Dealing with the Past • establishment of facts / truth (vs. myths) • individualization of guilt (vs. collective guilt) • culture of accountability (vs. impunity) • restatement of the law (vs. anarchy) • restoring confidence and ownership (vs. mistrust and marginalization) • restoring dignity to victims and perpetrators (vs. victimization) • deterrence and prevention (vs. recurrence of violence)

5. Danger of recurrence of violence after signing peace agreements: • Rwanda: The breakdown of the 1994 Arusha Accords in Rwanda was followed by a genocide of some 800,000 people.  ~ 50 times more deaths than had occurred in the 1990-1993 civil war • Angola: 350,000 dead after peace agreement • Liberia:150'000 dead after several peace agreements

6. Overview of presentation: • Importance of DwP • Conceptual framework of DwP • DwP in mediation process • Final remark

7. Reconciliation Rule of Law Right to justice Right to know • Individual penal prosecution • International tribunals • Domestic and "hybrid" courts • Witness protection • Trial monitoring • Truth commissions • Commissions of inquiry • Documentation • Archives • Exhumations conflict transformation conflict transformation Victims ex-combatant de victimes Citizen Citizen citoyen Guarantee of non-recurrence Right to reparation • Disarmament, demobilization, reintegration • Institutional reform • Democratical control of security institutions • Lustration/vetting • Rehabilitation, Compensation, Restitution • Memorials, public apologies, Commemorations, • Educational material No Impunity Guarantee of non-recurrence FDFA 2006, taken from the Joinet principles and SG report 2004

8. The Right to Know: Knowledge of the truth and duty to remember

9. The Right to Justice: Right to a fair remedy and duty to investigate and prosecute

10. The Right to Reparation: Reparation on an individual level and collective forms of reparation

11. The Gurantee of Non-Recurrence: Vetting/Lustration Institutional Reform

12. Overview of presentation: • Importance of DwP • Conceptual framework of DwP • DwP in mediation process • Final remark

13. 5 key points to remember for mediators: • Holistic approach and inter-linkages • Context-specific • Timing and sequencing • Inclusion and Ownership • Implementing, monitoring &evaluating

14. Pre negotiation phase: Suggestion for mediators: • inform the negotiating parties that this is the agenda item that will address a range of accountability issues all along the process; • inform the negotiating parties about international legal norms which forbid blanket amnesties for war crimes, crimes against humanity, and genocide; • Rather than focusing exclusively on justice mechanisms, however, point out that a range of restorative measures exists to adress accountability.

15. Negotiation phase: Suggestion for mediators: • ensure that dealing with the past issues are presented in a consistent and coherent way to the extent possible during the negotiation phase; • include - at a minimum - an agreement in principle on dealing with the past in the peace agreement and refer its implementation and details to an annex/commission/committee; • ensure that any mechanism created for dealing with the past has a clear mandate and provisions for implementation and monitoring

16. Implementation phase: Suggestion for mediators: • verify that the previewed mechanisms are implemented in a transparent and accountable manner; • verify that the combination of short- and long-term goals is realistic and reinforces the whole peace process; • facilitate a dialogue among relevant stakeholders, including state and non-state actors regarding the decision-making and implementation of dealing with the past.

17. Key challenges: • A commitment to justice for those who have committed international crimes and/or serious human rights violations; • A general commitment to end impunity may not be enough, specify as much as possible; • Amnesty regime that encompasses crimes of sedition and the like, and lesser offenses that do not constitute international crimes; • Prisoner exchange; • Human rights-based vetting mechanism for security forces; • Restitution, rehabilitation, reintegration and compensation programs for victims and survivors, commemorative efforts and reintegration programs for former combatants.

18. Concrete example: Kosovo • Option 1: Government Liaison Office on Dealing with the Past (DWP) • Priority Issues: Missing Persons, Prosecution of War Crimes and Crimes against Humanity, Truth-seeking Mechanism, • Documentation, Victim Compensation, Amnesty for Non Prescriptive Acts, Vetting for Public Employees • Option 2: Independent Working Group in Kosovo on DWP • Priority Issues: Same as Option 1 • Option 3: Government Liaison Office and an Independent Working Group on DWP • Priority Issues: Same as Option 1 • Option 4: Independent Mechanisms on Specific DwP Issues • Priority Issues: Missing Persons, Prosecution of War Crimes and Crimes against Humanity, Non-Judicial Truth-Seeking Mechanism, Victim Compensation

19. Overview of presentation: • Importance of DwP • Conceptual framework of DwP • DwP in mediation process • Final remark

20. Final remark: The objectives of peace-building and the mechanisms of accountability work in complementary ways.

21. Thank you for your attention!