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The early postindustrial development stages demonstrated a trend toward de-securitization of the geography-related factors along with appreciable easing of military threats and vulnerabilities. Today this still remains to be one of the key features of the security sphere of the postindustrial states, which distinguishes them from the traditional states. It would be appropriate to speak of sustainability of this tendency, if not a few “but’s”—irreversibly reducing energy resources of the planet, rise in consumption and related impetuous and universal securitization of energy problems. The postindustrial states have not yet learned to substitute oil and gas reserves, the basic element of the contemporary energy sphere. They remain territorially-conditioned, which adds a geopolitical dimension to the rivalry over access to them. This, in turn, makes it possible to newly comprehend interrelation between security and geopolitics in the world moving toward globalization.
Nani MACHARASHVILI
D.Sc. (Political Science), associate professor at the Ivane Javakhishvili Tbilisi State University
(Tbilisi, Georgia).
IS GEORGIA FOLLOWING INTERNATIONAL EXPERIENCE OF NATIONAL RECONCILIATION BY REJECTING THE RETRIBUTIVE MODEL?
A b s
Reconciliation is a mechanism of conflict settlement and normalization of relations between former opponents. This process facilitates a return to the preconflict situation, which explains why I have undertaken to discuss national reconciliation within the John Lederach transformation model, according to which national reconciliation is intended to transform negative rela-
r a c t
tions into positive or, at least, till the soil for such transformation. Here I will discuss reconciliation as a process through which mechanical harmony is transformed into organic. This is a process in which the vertical relations between the conflicting sides become horizontal and the success of which is indicated by the changes in the sides’ behavior, actions and, generally speaking, relations.
I n t r o d u c t i o n
The observers were in two minds about the decision of the new Georgian leaders, brought to power by the Rose Revolution, to resume investigations of the circumstances in which Zviad Gamsa-khurdia, the first President of independent Georgia, lost his life. Back in June 2004, this was a natural
response: the tragic and enigmatic death of Georgia’s first president1 could not be separated from the events of 1991-1992, an acute civil confrontation between those who sided with the deposed president and the Cabinet that came to power through a military coup and, after March 1992, was headed by former Soviet Foreign Minister Eduard Shevardnadze.
Doubts about several important things persist: was the investigation objective enough; to what extent were those who figured in the case willing to cooperate with the prosecution; will the results and details be published; will all those guilty be punished; is it possible to identify all those guilty of Gamsakhurdia’s death, as well as those who killed him, organized this murder, and paid for it, etc.
The last of the above questions is the key one. Indeed, are the country’s new rulers ready to punish those members of the deposed government who were involved in Zviad Gamsakhurdia’s death and are guilty of the offences that took place during the 1992-1994 investigation?2 The new people in power are still in doubt: they are still not sure whether they want to know the truth, or to punish the offenders for their crimes, or, probably, both.
A closer look at what is going on in this sphere reveals that this is not a particular case of the administration ofjustice—this is a much more complicated many-sided problem of defusing a domestic conflict and searching for the roads leading to national reconciliation. The efforts to settle any type of conflict mean that justice should be restored, while the flawed “victors and losers” psychology formed during the course of the conflict and under its impact uprooted. A democratic government finds it hard to avoid the inner contradictions inevitably present in the process: on the one hand, justice means that any crime should be punished; on the other, the truth should be established.3 These two seemingly inseparable components can and should be separated in practice.
The process can take the road of retribution for past offences or the road leading to the truth. This means that there are two most radical models of restoration ofjustice: “retributive,” which concentrates on administering justice and the conception of national reconciliation, and “restitutive,” which seeks the truth as the basis for compensating those who suffered as the result of a crime.
This is the central issue, which no state seeking to restore justice can avoid. Samuel Huntington has termed it “the hangman problem.” After returning to democratic development, every government has an alternative: either punishment or forgiveness. Indeed, should members of the previous power structures guilty of crimes be brought to court and punished or should their offences simply be forgotten?4
The road of national reconciliation that Georgia has chosen for itself is not unique; it has been covered by many countries that have found the answer to the above dilemma. For this reason, an overview of the theoretical and methodological issues and practice of the national reconciliation policy are appropriate here.
1 According to an official statement of 1994, Zviad Gamsakhurdia committed suicide in December 1993 upon his return to Georgia. According to other sources, the circumstances were less straightforward than that.
2 The case against Zviad Gamsakhurdia was opened in January 1992; at first he was accused of abusing power and stealing state property; in 1993, he was also accused of unleashing a civil war, creating illegal armed units, and committing high treason. After his death, the case was suspended and then closed because of his death. The accusations of creating illegal armed units remained, which interfered with national harmony. A large number of his supporters were accused of belonging to the so-called bandit units and were punished. It was only after the Rose Revolution and Mikhail Saakashvili’s advent to power that in February 2004 the General Procurator’s Office opened another investigation of the case. It demonstrated that the accusations were unfounded; the first president of Georgia was posthumously acquitted.
3 See: A. Neier, Voennye prestuplenia: Genotsid. Bor’ba za pravosudie, Transl. from the English, Yunost Publishers, Moscow, 2000, p. 17. (English edition: A. Neier, War Crimes: Brutality, Genocide, Terror, and the Struggle for Justice, Times Books, New York, 1998.)
4 See: S. Huntington, Tret'ia volna. Demokratizatsia v kontse XX veka, Transl. from the English, Rossiiskaia po-liticheskaia entsiklopedia (ROSSPEN), Moscow, 2003, p. 229 (English edition: S.P. Huntington, The Third Wave: Democratization in the Late Twentieth Century, Norman & L., University of Oklahoma Press, 1991.)
National Reconciliation as a Means of National Harmony in the Post-Conflict and Polarized Society
Director of the conflict transformation program at the University of Eastern Minnesota John Paul Lederach, who spent over 15 years as member of peacekeeping missions all over the world (in Somalia, the Philippines, South African Republic, Colombia, Nicaragua, Northern Ireland, etc.), has made a very special contribution to the study of the national reconciliation issue. He was one of the first to draw attention to reconciliation as a special phenomenon.5
In his Journey Toward Reconciliation (1997), John Lederach was the first to describe reconciliation as restored relationships damaged by a conflict; he also identified four components (verity/ truth, fairness/justice,6 forgiveness, and peace), which together create a social context conducive to reconciliation.
Those who talk about national reconciliation primarily have in mind a definite political course. By its nature, the national reconciliation policy belongs to the category of distributional law and is realized through a redistributional political course. This means that a government guided by the principles of social justice revises the practice of support of oppressed social groups.
National reconciliation is needed to discontinue civil resistance; it is a process that helps reach national harmony. This means that a climate conducive to national reconciliation should be regarded as a starting point of the process of pushing old insults aside and changing the conflict-created context. The national harmony idea is closely associated with the elimination of ruptures. As distinct from the models of managing and resolving conflicts that work toward reducing the confrontation level, the transformation model is also intended to reach peace through restoring the pre-conflict relations between the sides. This means that national reconciliation is a process that not only embraces formal-institutional changes, but also alleviates extremely confrontational relations in society.7
The mechanisms for transforming negative relations into positive are as follows: telling the truth, healing, justice (fairness), and compensation. Today, the academic community is engaged in an active discussion of some of the relevant issues: does successful post-conflict rehabilitation require all these mechanisms or does their choice depend on specific contexts?
Some authors, Wendy Lambourne being one of them, are convinced that the choice of any specific mechanism is unimportant. The chosen mechanisms, they argue, should be adequate to the aim of reconciliation with the context, while the demands of the side that suffered in the conflict should be taken into account. They insist that specific national features (religious, cultural, and social milieu) should be taken into account when models for overcoming the legacy of the past are chosen.
John Lederach and other academics offer an absolutely different conception of building peace: they believe that it is equally important to tell the truth during post-conflict rehabilitation and to ensure justice (fairness), forgiveness, and peace. In their models, these categories are not alternatives,
5 See: Preparing for Peace: Conflict Transformation Across Cultures, Syracuse University Press, Syracuse, New York, 1995; Building Peace: Sustainable Reconciliation in Divided Societies, United States Institute of Peace Press, Washington, DC, 1997; The Journey Toward Reconciliation, Herald Press, Scottsdale, PA, 1999; The Little Book of Conflict Transformation, Good Books, Intercourse, PA, 2003; The Moral Imagination: The Art and Soul of Building Peace, Oxford University Press, New York, 2004.
6 In the context of conflicts, the concepts “justice” and “fairness” are used interchangeably. The same applies to the present article (see: M. Maiese, “Principles of Justice and Fairness,” in: Beyond Intractability, ed. by G. Burgess and H. Burgess, Conflict Research Consortium, University of Colorado, Boulder, July 2003, available at [http://www. beyondintractability.org/essay/principles_of_justice/].
7 See: Ch. Hauss (Chip), “Reconciliation,” in: Beyond Intractability, September 2003, available at [http:// www.beyondintractability.org/essay/reconciliation/].
but parts of a single process in which none can be neglected lest the entire reconciliation process falls through. They are convinced that the commonly accepted opinion that there is a dichotomy between reconciliation and administration of justice (fairness) is false. The latter is a natural outcome of the response to past crimes and thinking along punishment/forgiveness lines. It should be said that works dealing with issues of peace-building tend to avoid Howard Zehr’s “extreme categories” of punishment/forgiveness. They support the model ofjustice that restores rather than destroys society, such as restoring/strengthening justice.8
The different approaches used in the reconciliation process have a common and most important element: the sides involved should change the way of thinking and abandon their ideas about the past and historical enemy.
Reconciliation can be regarded both as a process and a result, which means that reconciliation is an aim and a means. The Lederach model regards reconciliation as a process. I think that a gradual leveling out of the vertical (“victor/loser”) relations between the conflicting sides can be described as national reconciliation. This mechanism helps transform vertical relations into horizontal. From this it follows that reconciliation aims at overcoming John Galtung’s “direct violence” and restoring the social and economic justice violated during conflicts, or as their result.
The relations between reconciliation and democracy are very specific, since effective post-conflict democracy rests on a dual basis: reconciliation offers a foundation for democracy and creates a working atmosphere between the conflicting sides, which is absolutely necessary for success. At the same time, reconciliation needs democracy to bring fairness to the economy and redistribute political and social power.9
National reconciliation is frequently discussed together with such concepts as offering apologies, forgiveness, and harmony. Offering apologies and forgiveness should be seen as the first step toward overcoming confrontation through the national reconciliation process. The scholars working on the problem of reconciliation and harmony tend to blend them into the same category, which is hardly right.
Forgiveness, the foundation of national reconciliation, is often identified with oblivion. Sergey Kovalev, a prominent Russian human rights activist, has pointed out that we should admit that while certain people are capable of forgetting the crimes perpetrated against them, others drive the past from their minds under purposeful political pressure or repression.10 This means that forgiveness should not be interpreted as “wiping away the past,” so-called social amnesia. Memory of the past is important to prevent recurrences of the horrors of the civil war and confrontation. For example, in Spain, the memory of the 1936-1939 civil war played an important role when the country moved toward democracy. This means that there is no reason to identify forgiveness with erasing crimes and law violations from the memory during a civil confrontation.
The nature of the problem with which the national reconciliation policy should cope directly depends on those who carry it out: either the side that has nothing to do with political repressions or the side that was involved in them. In the former case, the new democratic government not associated with crimes of the past should answer the question of whether members of the previous regime guilty of human rights violations should be punished? The latter case poses the question of how the false accusations against political prisoners and political opponents kept in prisons as a result of the “administration of justice” by the “victors” can be revoked? In the former case, amnesty of the members of the previous regime is perceived as negative and is associated with impunity; in the latter, amnesty as the basic demand of the “defeated side” is seen as the first step toward rehabilitation of the repressed.
8 This is referring to the restored relations damaged because of the conflict and during it.
9 See: Reconciliation after Violent Conflict: A Handbook, ed. by D. Bloomfield, T. Barnes, “The International IDEA Handbook” Series, International Institute for Democracy and Electoral Assistance, Bulls Tryckeri AB, Halmstad, available at [ http://www.idea.int/publications/reconciliation/upload/reconciliation_full.pdf].
10 See: A. Neier, op. cit., p. 6.
This means that the side that won and the side that suffered defeat may become potential vehicles of the reconciliation policy together with the neutral side, which, while being neutral in the past confrontation, is influenced either by victors or losers. This reduces the possibility of achieving national harmony through the national reconciliation policy. The model in which neither the victors nor the losers, but the societies from both camps that survived the conflict have a role to play in the process offers the greatest potential for achieving genuine national harmony.
Reconciliation and Justice: Should it be Retributive or Restorative Fairness?
Justice and reconciliation play an important role in peace-building. According to Marcia Hartwell, there are traditional and relatively innovative approaches. Under the former view, justice/law is identified with fairness, while the latter regards justice/law as reconciliation.
Most of the conceptual constructs of post-conflict social rehabilitation (which reproduces, with certain deviations, John Lederach’s primary scheme) have decidedly distanced themselves from retributive justice and accepted the opposite restorative justice as the foundation for possible peaceful coexistence of previously conflicting sides.
When investigating the problem of identifying justice and reconciliation, Mahmud Mamdani offers a paradigm of social reconciliation based on restorative justice. This is a method that can reconcile two opposite and extreme practices: on the one hand, there is justice without reconciliation (a retributive model of national reconciliation, which tends toward punishment); on the other, reconciliation without justice (a restitutive model of national reconciliation, which stresses compensation of the victims of political violence as important based on revealing the truth about the past). Rwanda, East Timor, Sierra-Leone, Cambodia, and Yugoslavia are examples of the former; the Latin American countries, of the latter. Mamdani’s ideal model is social reconciliation based on justice/fairness understood as reconciliation.
Mamdani’s model of social reconciliation corresponds to the approach known as restorative justice, which is directly opposite to retributive and restitutive justice. His model brings us closer to a situation in which fairness can be achieved and, at the same time, is conducive to reconciliation. This means that the methodology used to achieve justice during the course of reconciliation is different from the conventional (legal) approach. In this way, both sides mutually complement each other and finally transform their negative relations into positive.
From the point of view of post-conflict transformation and peace-building, none of the types of justice studied by social sciences was as polemic as retributive justice. In this chapter, the far from unambiguous question of relations between reconciliation and justice is illustrated with the components of justice: retribution, on the one hand, and establishing the truth, on the other.
A cursory glance at international experience offers a conclusion: rejection of retributive justice in favor of restitutive justice based on establishing the truth is a general trend of the national reconciliation policy.11 The Latin American countries supplied the most outstanding examples of how to concentrate on finding the truth during a transfer from political tyranny to a democratic state ruled by law, where justice was restored by nearly complete rejection of retribution for the crimes of military dictatorships.
11 Greece in 1974-1976 under the Karamanlis Cabinet is the only country that succeeded in restoring justice through the retributive model.
Latin America
The Latin American experience of national reconciliation pays less attention to legal responsibility for the crimes committed during and as a result of confrontation. According to the opinion generally accepted in the region, retributive justice is fraught with unpredictable negative repercussions and undermines the state’s stability. This explains why it was rejected. Argentina as a textbook example of an uncompleted process of justice restoration added to the general conviction. In this country, democratically elected President Raul Alfonsin, who undertook to administer retributive justice, had to cut short the process under the threat of a new military coup.
In 1983, President Alfonsin set up a commission headed by writer Ernesto Sabato to investigate the crimes of the preceding authoritarian regime. It registered 8,960 cases of the disappearance of people and acquired information about 365 secret detention places in which torture had been carried out. According to eyewitness accounts, it turned out that about 1,800 cases should be opened. The results published in the book entitled Nunca Mas (Never Again) laid the foundation for the legal prosecution of those who had violated the law. The Alfonsin government insisted on the promulgation of the laws that supplied the cases against human rights violators in the army and the police with a legal foundation.12 It was believed that nowhere in the world was the struggle for human rights as intensive as it was in Argentina.13 Sixteen officers (members of the ruling military junta among them)14 were brought to court. Ten were sentenced to various terms in prison for human rights violations, while General Videla was sent to prison for life.
Two thousand private criminal cases were also opened. The government divided the supposed offenders into three categories: those who gave orders to violate human rights, those who carried out the orders, and those who even went beyond the limits of what was ordered. This means that retributive justice was aimed at all those guilty of human rights violations, which contributed to the failure of the legal process.
When it came too close to intermediate and junior officers, the military community was stirred up and put up resistance. Over a span of seven years, the Alfonsin presidency survived three aborted coups carried out under the banner of amnesty for those who had violated human rights during the so-called dirty war. The public, on the other hand, was losing interest in the subject. Under the threat of another coup, the Alfonsin Cabinet had to abandon its attempts to administer justice. The law that established a limitation period for the crimes was followed by a law that released intermediate and junior officers from criminal responsibility. Finally, under President Carlos Menem, the military and members of the military junta convicted under the previous government were amnestied.15
Assessing the results of legal prosecution in Argentina, Samuel Huntington has written that the attempts at administering justice in Argentina favored neither justice nor democracy. They merely created moral and political chaos. Even in 1990 they remained a factor of dissent in Argentine society.16
12 See: S. Huntington, op. cit., p. 241.
13 See: A. Neier, op. cit., p. 74.
14 This group included three generals—Jorge Rafael Videla, Roberto Eduardo Viola and Leopoldo Galtieri, who served consecutive presidential terms during the seven years of military rule.
15 Elected in October 1989, President Menem pardoned 60 guerillas and all the military and policemen accused or potentially accused of human rights violations, with the exception of five imprisoned members of the junta. On 29 December, 1990, President Menem pardoned them, as well as Montenero, a guerilla leader and general extradited from the United States and detained for trial for committing 38 murders. General Carlos Guillermo Suarez Mason, who had power over the lives of the abducted people kept in detention centers, was also released from prison (see: S. Huntington, op. cit., p. 243).
16 See: S. Huntington, op. cit., p. 239.
What happened in Argentina echoed across Latin America: the idea appeared that the administration of retributive justice is unwise at best and dangerous at worst.17 The democratic leaders of South America resolutely rejected the idea of retributive justice.
This approach developed into impunity for those in the repressive structures who had engaged in torture and committed murders. Restored fairness was limited to enumerations of instances of violence and other forms of human rights violations. National reconciliation in Latin America followed restitutive justice: truth and reconciliation commissions were set up that sought the truth and completely ignored retribution of the crimes they investigated. It was decided from the very beginning that those guilty of these crimes would not be prosecuted. The commission set up by Patricio Aylwin in Chile in 1990 announced that it would limit itself to “disclosing the crimes.” The commission’s report never mentioned the problem of bringing to justice those guilty of the crimes it investigated; nothing was done to establish the guilt of specific people; in fact, in most cases they were exempt from prosecution. The commission refused to publish the names under the pretext that this would violate the rights of the guilty.18 In this way, establishment of truth rather than personal responsibility was treated as a priority.
The Chilean commission was in fact guided by the idea of prominent Chilean lawyer and human rights activist José Zalaquett offered at the November 1988 conference on the problem of establishing responsibility for state-committed crimes, who insisted that the policy in relation to human rights violations committed in the past should pursue a dual aim: to prevent their recurrence and do everything to remedy the harm.19 In the light of modern moral values, Zalaquett rejected other aims, such as vengeance and retribution.20
Other Latin American countries followed suit. Any commission, each of which was normally called the Truth and Reconciliation Commission, was set up to investigate crimes and offences of the past. The damage inflicted on the victims of crimes of the past was repaired by revealing the crimes and publishing the truth, rather than instituting criminal prosecution against the offenders and punishment according to the principle of the penalty befitting the crimes. These activities are intended to reveal the facts in order to console the victims and their families, expose and hold the hangmen up to shame, and teach the public to prevent such crimes in the future. Neier believes that when informed about what happened, the nation is given the chance to honestly discuss how and why such awful crimes took place at all.21 The commissions were set up to heal the society and prevent similar horrors. NuncaMas, the title of the report supplied by Ernesto Sabato’s commission, has put in a nutshell the message and aims of such commissions.
Samuel Huntington has pointed out that in the final analysis, the politics of the third wave countries disrupted the attempts to prosecute and punish authoritarian criminals. In many of these countries, several people were promptly brought to court. In nearly all of them, there was no intention of instituting effective prosecution in courts or meting out punishment.22 Latin America answered the question raised by President of Uruguay Sanguinetti: What is more important—to strengthen peace in the country, which guarantees human rights, or to seek fairness after fact, which might endanger peace?23 by abandoning punishment and retribution and by amnestying the criminals.
17 See: A. Neier, op. cit., p. 78.
18 For the sake of comparison it should be said that the Ernesto Sabato commission published all the names.
19 It is for this reason that this model of national reconciliation is called restitutive.
20 To a great extent, the negative treatment of punishment takes into account the Argentine experience. An opinion commonly accepted by the philosophy of law that says that the idea of punishment based on retribution is condemned plays no important role. Negative treatment of the idea of punishment (the aim of which is to prevent more damage from the same criminal or to keep others from committing similar crimes, which corresponds to the contemporary idea of “incapacitation”), is discussed in the works by Cesare Baccarini and H.L.A. Hart.
21 See: A. Neier, op. cit., p. 78.
22 See: S. Huntington, op. cit., p. 233.
23 See: A. Neier, op. cit., p. 148.
The decision to reject the administration of retributive justice in Latin American countries is largely prompted by the fear of military coups.24 Former leaders of the military juntas that remained in control of the army could use this resource to move against the democratic leaders, which, in the final analysis, would have undermined the democratization process.25
President of Uruguay Julio Sanguinetti was convinced that stability was more important than justice: If punishment creates worse social effects than impunity, the harshness of legal punishment should be alleviated.26 He argued that voluntary rejection of punishment is a method of administering justice.
It should be said that the Latin American approach to administering justice has not destroyed the problem of restored fairness. Today, it remains a topic of heated discussions as a factor that splits society into two camps—those who favor legal prosecution of the criminals of the military dictatorship period and those who disagree with it. Chile is one of the best examples. The problem of whether Augusto Pinochet, responsible for numerous human rights violations between 1973 and 1990, should have been brought to court or not still stirs up mixed feelings inside the country and remains a dividing factor.27 We can say that the refusal to administer retributive justice in Latin American countries ignored the overall public demand to punish those guilty of human rights violations.
The Latin American experience convinced the public that very often the administration of justice is very hard to achieve, especially in divided states with an inadequate democratic political culture in which such attempts threaten the country’s peaceful future. According to Neier, the attempts to raise the question of the crimes the conflicting sides committed during the civil war would have immediately resumed it.28 The Latin American experience has testified that the truth without retribution of crimes, with sharp criticism of the fact of the crime, is an outcome of this situation. The latter serves as a warning against repeating the mistakes of the past. The search for the truth serves as the starting point for administering so-called restitutive justice and paying compensation to the victims of the crimes of the past.
The South African Republic
The South African Republic under Nelson Mandela provided an example of how to deal with the problem of partial administration of justice and overcoming the contradictions between retributive and restitutive justice. The reconciliation process went on under the slogan “amnesty instead of the truth.” Nelson Mandela never tired of repeating that his conception of reconciliation did not envisage legal prosecution; yet it did not exempt the guilty from responsibility, as was the case in Latin America. Amnesty was granted to those who voluntarily admitted their crimes and demonstrated penitence.
24 See: Ibid., p. 142.
25 What Pinochet and the leaders of the top brass in Chile had to say on this score are the best illustration of this idea: “The day when any of my people is affected will spell the end of law and justice in the state” or “If they try to put us in the pillory as this happened in Argentina this will incur the gravest of repercussions” (see: S. Huntington, op. cit.,
p. 235).
26 See: A. Neier, op. cit., p. 148.
27 Under the decision the Santiago court of appeal passed in June 2005, Augusto Pinochet could be brought to court not for the repressions and murders, but for financial machinations. The former Chilean dictator was deprived of jurisdictional immunity in connection with the investigation of tax offences. In relation to the crimes against humanity, the same court passed a decision to discontinue the process against Pinochet in connection with the crimes committed within the lamentable Operation Condor. The trial against the 89-year-old general connected with it was discontinued for health reasons. In the 1970s-1980s, the military regimes of Argentina, Brazil, Paraguay, Uruguay, and Chile carried out this operation to exterminate their opponents (see: PDA-lenta novostey site Izvestia.Ru, available at [http://pda.izv.info/world/ news96075], 8 June, 2005).
28 See: A. Neier, op. cit., p. 82.
The truth and reconciliation commission freed from criminal prosecution those who gave honest and detailed descriptions of the crimes in which they had been involved. Amnesty was the means of finding the truth and identifying verity. The commission members argued that those who had information about the crimes of the past would never supply complete and exhaustive information without the guarantee they would be exempt from criminal prosecution.
The process of restoring fairness was not limited to identification of the truth—it also aimed at partial punishment. We should say that the administration of retributive justice in South Africa followed an indirect source. Amnesty was individual; hearings were public. The crimes were made public; society held the criminals up to shame. Aryeh Neier has described it as follows: Identifying the guilty and revealing everything they did means holding them up to shame and is punishment in itself; identifying the victims and restoring the memory of tortures and murders means to recognize their honor and dignity.
Spain
Anyone wishing to analyze the methods tested when restoring justice in different countries should take into account the Spanish experience. In Spain, justice violated by the civil war of 19361939 was restored forty years later during the democratic transformations.29 Like the Latin American countries, Spain rejected the retributive model, but for different reasons.
I have written above that Latin America abandoned the administration ofjustice for the sake of stability under direct pressure from the military and the forces responsible for human rights violations and, most important, while completely ignoring the nation’s demand to punish the guilty. In Spain, the side that lost the war and was repressed by the Franco regime rejected the retributive model. To prevent bloodshed, the victims of repression dropped the idea of revenge and settling scores. There was no anti-Franco hysteria against those who carried out the repressions. Informers were not prosecuted; those who supported the dictatorship were not branded as “enemies of the nation,” they were even allowed to legally promote their ideas.30
In this way, in the course of achieving national harmony, Spain restored justice on a voluntary, rather than imposed, rejection of the retributive model. The fact that the nation overcame the confrontational political culture and gradually arrived at a culture of harmony played an important role in these developments. Institutionally, this transformation was brought about by the nonto-talitarian nature of Franco’s regime and the process of gradual liberalization started in the 1950s. When the country started its transit to democracy, these two factors brought the sides in the past military confrontation closer. There is the opinion, however, that certain non-institutional factors played an important role in the transition from the confrontational political culture to the culture of harmony.
Indeed, the fear of repetition of the civil war horrors that scarred the nation’s psychology was one such factor. When looking into the problem, Paloma Aguilar divided the collective memory of the Spanish about the civil war into several components: conviction that everyone involved was
29 In the country divided into the “victors” and “losers,” in which the ideas of revanchism were dominant, under Franco, the idea of national reconciliation was identified, with good reason, with the betrayal of the ideals of freedom and reconciliation with the regime brought to power after the civil war. Symbolic events, such as burial of victims of the civil war side by side, etc. were obviously not enough to overcome the clearly vertical relations created by the civil war of 1936-1939 and based on unilateral advantages for the victors. Despite the slogan “there are neither victors nor losers,” the government did nothing to achieve reconciliation. General Franco was against any real steps toward rehabilitating the “losers.” This was sham reconciliation; the agreement reached under Franco is often described as a “quasi-consensus.”
30 In Spain, national reconciliation was undertaken after an actual voluntary transformation of the regime. We can even say that this was not so much reconciliation as capitulation of the old Franco Spain.
equally responsible, determination to avert a repetition and the firm conviction that it would not happen, and a national agreement that the road toward democracy and general harmony should be a peaceful one.31
Time was also instrumental in the gradual emergence of the culture of agreement. The forty years that separated the civil war from the moment of genuine reconciliation achieved during the course of the democratic changes were used to revise and reassess the past tragedy. The nation, which had buried the past, was resolved not to seek and prosecute those guilty of the past crimes. Spanish society turned this page of its history and never revived any discussion about it. The sides cooperated outside the historical context of the 1936-1939 events.
Franco’s death ended the tragic period of Spanish history; the relations between the opposing sides noticeably improved; a semblance of cooperation became possible; the democratic changes helped the opponents to forget the old grudges and to concentrate on mutually acceptable solutions.
In Spain, society wholeheartedly supported the rejection of the retributive justice model: the civil war had exhausted the nation.
The Latin American experience demonstrated that administration of justice that combined two functions—retribution and establishing the truth—was realized separately in the form of partial administration ofjustice. It was based on finding the truth and completely ignored the second function, that is, retribution. In legal terms, this meant harboring criminals; no matter how wise this may have been from the political point of view, it insulted those who expected a fair approach. On the other hand, the administration of retributive justice, ideal from the legal viewpoint, cannot be realized in real political conditions. The failure of the attempts to carry out criminal prosecution in Argentina is the most convincing proof of this.32
To sum up. On the one hand, the national reconciliation policy calls for justice and establishment of the truth, which in real life turns out to be harboring criminals and amnestying those involved in the past crimes. On the other hand, it can be described as administration of retributive justice through criminal prosecution. The Republic of South Africa remains the only example of a successful combination of the two opposite models of justice administration in the course of national reconciliation.
Georgia
The Georgian model of national reconciliation places the country in the category of states in which the “victorious” side long pursued a national reconciliation policy; after the Rose Revolution, this function went to the neutral side not involved in the conflict.
This means that the national reconciliation efforts in Georgia passed through three stages: two of them coincided with the presidentship of Eduard Shevardnadze. The first of them, an analogue of the quasi-consensus of Franco’s Spain, was replaced by the unfinished process of postconflict rehabilitation, which was easily completed with Mikhail Saakashvili’s advent to power. The new rulers, however, had their own dilemma to deal with: should criminal cases be opened against those who were involved in the political repressions against the Zviadists under Shevardnadze? Georgia’s case has confirmed Samuel Huntington’s hypothesis that any new democratic power faces the dilemma of whether to punish or not to punish the members of the preceding regime guilty of human rights violations. Georgia is no exception: it had already rejected the retributive justice model.
31 P. Aguilar, “Collective Memory of the Spanish Civil War. The Case of the Political Amnesty in the Spanish Transformation to Democracy. Democratization,” A Frank Cass Journal, Vol. 4, No. 4, Winter 1997, p. 93.
32 See: A. Neier, op. cit., p. 85.
To answer all possible questions, let us look at the national reconciliation policy realized under Eduard Shevardnadze and then discuss the arguments the present Georgian rulers invoked to reject retributive justice.
A Brief Description of Georgia’s National Reconciliation Experience
As distinct from the Latin American countries where the people brought to power through democratic procedures and not responsible for the crimes of the military dictatorships restored justice, in Georgia, the “oppressors” themselves were involved for many years in restoring justice. This factor played an extremely negative role in the national reconciliation policy, because the idea as such, under these conditions, is interpreted in the interests of the “victors.”
The civil confrontation33 of the early 1990s in Georgia is conventionally divided into two periods. During the first period, the military confrontation in Tbilisi of December 1991-January 1992 removed Zviad Gamsakhurdia, the legally elected president, from power. The second period was full of the armed clashes between the two opposing camps that took place in 1992 and 1993. The side that won the civil war had to overcome the stubborn resistance of those who supported the president deposed by the military coup.34 The events of 1991-1992 triggered confrontation between the supporters and opponents of the Gamsakhurdia government and turned the Zviadists into political outcasts.
There are many reasons to describe the military confrontation in which Shevardnadze’s supporters defeated the Zviadists and everything that took place in Georgia in the 1990s as a zero sum conflict: it merely created the “victors/losers” psychology. The sides involved in the past in the military confrontation turned out to be involved in relations with a so-called unequal status, the losers being acutely aware of injustice.
The “victors” not only refused to reject repression against the supporters of Zviad Gamsakhurdia—they transformed the armed opposition into a latent conflict; criminal prosecution of the opponents was instituted against the background of talk about national reconciliation.35
Repressions of the “losers” took the form of criminal prosecution of members of Gamsakhur-dia’s structures and his supporters. The very fact of involvement in the confrontation of the early 1990s, irrespective of the gravity of the crimes committed by the supporters of the first president of Georgia, incurred harsh criminal prosecutions. The repressive machine of the “victors” favored legal, rather than illegal, forms and methods of struggle. The political struggle against the political enemies took the form of criminal prosecution that lasted from 1992 to 2000 with various intensity.
The Latin American methods of struggle against political opponents were unknown in Georgia: people did not disappear en masse for political reasons. This side of the question, however, has not been investigated in detail.
While the “victors/losers” psychology, the result of acute civil confrontation, remained dominant, the national reconciliation policy announced by the Shevardnadze government did nothing to change anything in the opposing sides’ relationships. The random pardons were interpreted as confirmation of the victors’ triumph.
For a long time, until 2000, the Shevardnadze government refused to admit that criminal prosecution of the Zviadists was politically motivated; in fact, the authorities flatly denied that there were
33 There is a more or less general agreement to use the term “civil war” to describe the events of the early 1990s. In fact, according to most parameters, they should be described as a civil confrontation.
34 See: V.M. Gefter, S.A. Kovalev, A.V. Sokolov, Gruzia: neobkhodimost shirokoy politicheskoy amnistii. Doklad raboty issledovatel’skoy kommissii Pravozashchitnogo tsentra “Memorial” v Gruzii, Moscow, 1997, p. 12.
35 Eduard Shevardnadze and his government launched their policy as soon as he returned to Georgia in August
1992.
political prisoners in Georgia. Those who the Memorial Human Rights Center and other human rights organizations described as political prisoners were punished and kept in prisons as common criminals. This was interpreted as continued civil opposition.
The national reconciliation policy of 1992-2000 offers a conclusion that the Georgian interpretation was incomplete: the victors were seeking unilateral advantages that had nothing in common with genuine reconciliation. At that time, any decision made within the framework of this policy (the 1992 Manifesto, the release of the Zviadists, the repeated attempts to set up the Darbazi (Council) of National Harmony and commissions to investigate the 1991-1992 events, etc.) was tarnished by the victors/losers psychology. All documents of the time favored the victors. It was obvious that the authorities were trying to shift the entire blame onto the Zviadists; the country’s rulers were driven by short-term considerations aimed at defusing the threat of escalation coming from the Zviadists.
At that time, the authorities wanted nothing but to fortify their position and protect their gains. In 1992-2000, they refused to carry out a sweeping amnesty in order not to bury the “victors/losers” complex. In fact, at that time reconciliation proved unattainable—at best the nation could reach a quasi-consensus.
The Years 1998-2000: A Radical Turn in the National Reconciliation Policy
Under pressure from the international community, on the one hand, and the Zviadists, on the other, the national reconciliation process was restored to its true meaning, while post-conflict rehabilitation of those who had supported Zviad Gamsakhurdia became real. The years 1998-2000 can be described as transitional: on 20 April, 2000, the parliament passed a decision that marked the first steps toward real post-conflict rehabilitation of the Zviadists.
The “unfair” treatment of the Zviadists invited numerous statements coming from international human rights organizations. The international community called on Georgia to promptly revise the cases and carry out a widespread amnesty campaign with respect to those who had been involved in the civil confrontation and armed conflict irrespective of the political circumstances and incriminated crimes. In April 1998, the U.N. Human Rights Committee issued a document that obliged the Georgian authorities to revise the files of the political prisoners. At the same time, in view of Georgia’s obligations as a Council of Europe member and the international recommendations, the country’s leaders assumed the responsibility of revising the criminal cases relating to the 1991-1992 events within two years; they pledged to make the process as transparent as possible. Despite the national reconciliation policy that the Georgian government announced in 1992, the criminal prosecution of political opponents was widely practiced until the parliamentary decision of April 2000. The international community insisted that this practice should be discontinued.
The “losers,” in turn, persisted in their efforts to force the authorities to announce an amnesty: the Zviadists were involved in a long chain of actions, such as hunger strikes and other no less radical measures, including the use of force, to attract international attention to the problem of the 1991-1992 confrontation and criminal prosecution for political reasons. This and international pressure forced the Georgian leaders to retreat and release the political prisoners.
The Zviadists tried to interfere with the official policy of dismissing the problem of criminal prosecutions for political reasons and political prisoners as nonexistent. Rallies, which were never as large as in Spain, proved to be the most effective tool. They brought together the losers and their supporters who demanded that the repressions be stopped and a sweeping political amnesty launched.
In 1998-2000, the Zviadists finally achieved their aims. Political prisoners were gradually released and the national reconciliation issue appeared on the agenda. The Shevardnadze government
entered into negotiations with its opponents on releasing the political prisoners. The parliamentary decision of 20 April, 2000 was a direct result of the talks.
The document supplied a political assessment of the 1991-1992 events and condemned “the attempts to resolve political problems by force, as well as the efforts to overthrow legitimate power.” This was an indirect confirmation that criminal prosecutions were used for political reasons and an equally important admission that there were political prisoners in Georgia. The General Procurator’s Office was instructed to revise and settle the “problem of prosecution of all those subject to criminal prosecution and all those in Georgia and outside it against whom criminal cases were instituted in connection with the events that had taken place between 1991-1992 and the present day.” The document contained a telltale phrase: “in connection with the changed circumstances,” which meant that the national reconciliation process had reached a new stage. The same document mentioned the need to set up a temporary parliamentary reconciliation commission to put an end to the civil confrontation and to stick to the demands, principles, and the general sentiments of the 20 April, 2000 decision.
The problem that cried for settlement and that should have been settled by 2000 was criminal prosecution of the members of the deposed government and its supporters for political considerations. This explains why the national reconciliation policy concentrated on this problem, while the parliamentary commission focused on sorting out the political prisoners issue. Much less attention was paid to the assessment of the 1991-1992 events and all the other related issues.
The national reconciliation policy in Georgia did not envisage legal responsibility of those guilty of criminal prosecution of the Zviadists. Restored justice was limited to correcting the judicial mistakes of the past; significantly, it was within this process that those guilty of the politically motivated crimes were released from responsibility. The Georgian leaders and President Shevardnadze did nothing to punish the guilty. The Georgian model of national reconciliation firmly rejected any legal appraisals of what happened during the period of civil confrontation and concentrated on the political assessments of the past. This is amply confirmed by the 20 April, 2000 parliamentary decision, which, while condemning the fact of deposing the legally elected government, passed over the guilt of those involved in silence.
Georgia under Shevardnadze and Spain under Franco pursued more or less similar national reconciliation policies, yet in Georgia the state admitted its own crimes and tried to remedy them. True, admission was not public: there were no demands to achieve reconciliation, no apologies, no matter how superficial, and no direct admission of the crimes. This found its way into the parliamentary decision of April 2000, albeit in an indirect form. This document registered the changes in the conduct of both sides and encouraged further changes in their relations. Nothing of the sort happened in Spain, where Franco, until his death, refused to release the political prisoners. In 2000-2003, the Georgian authorities not only refused to continue criminal prosecution of the former opponents, but also formulated, in the April 2000 document, the conditions indispensable for remedying the errors of the past.
The Criminal Prosecution Problem Removed
The national reconciliation policy carried out under Eduard Shevardnadze can be described as the state’s refusal to subject their former opponents to criminal prosecution; it can also be described as an attempt by the Georgian leaders to exonerate themselves by releasing the illegally imprisoned Zviadists. It should be said that this was done under international pressure and because the aggrieved party demonstrated a lot of activity. Shevardnadze’s government was guided by pragmatic considerations when it abandoned criminal prosecution; the leaders directly or indirectly involved in the crimes of the past wanted to protect themselves against possible accusations. These steps can be described as the Georgian rulers’ attempt at self-amnesty.
No matter what prompted these steps, the national reconciliation policy brought tangible results and somewhat alleviated the tension. The Zviadists were rehabilitated, their political rights restored, and
the vertical relations between the sides became horizontal, which meant that their status became more equal. The justice of the victors, as administered in 1992-2000, was replaced with fair court trials, which put the sides on an equal footing. As a result, latent civil opposition developed into a political struggle. This means that, under Shevardnadze, the national reconciliation policy was carried out under the slogan of remedying the crimes of the victors against the losers and was regarded as the basis on which national reconciliation could triumph. On the one hand, the corrected mistakes promoted national reconciliation, while on the other, social rehabilitation of the Zviadists and their reintegration into public activities became possible. The harmful “victors/losers” psychology was finally wiped out.
As in Latin America, the National Reconciliation Commission of Georgia rejected the model of retributive justice from the very beginning. At first glance, it seems that this paved the way toward establishing the truth, just as happened in Latin America. In the Georgia of the Shevardnadze period, the national reconciliation process had no future and did not follow the Latin American example. The authorities refused to investigate the crimes and concentrated on uprooting the practice of criminal prosecution of the losers and condemning the past crimes. This was the only way to protect themselves. In Latin America, on the other hand, in order to protect themselves, those who committed crimes against their political opponents had to resort to illegal forms (threatening a military coup) of pressure on the democratically elected leaders who threatened them with criminal prosecution. In Georgia of 2000-2003, the Georgian leaders and the president in control of the process could easily protect themselves.
The Georgian variant of 2000-2003 excluded a quest for the truth. There was the general conviction that all attempts were fraught with destabilization and another round of confrontation. In fact, the conviction that any assessment of the 1991-1992 events would turn out to be destructive played the same role in Georgia as the fear of destabilization did in Latin America.
The Prospects of National Harmony after the Rose Revolution
With the advent to power of Mikhail Saakashvili, a political figure unrelated to the bloody events of1991-1992 and the period of criminal prosecution for political reasons of the representatives and supporters of the first president of independent Georgia, the process of national reconciliation acquired a new impetus.36 The present Georgian rulers, however, tend not to give a legal assessment of the offences of the previous rulers and particularly of Eduard Shevardnadze, which causes a lot of discontent among the Zviadists. Today the situation is far from perfect: the people at the helm have not yet decided what they should be looking for, while investigating the death of the first president. Retributive justice has not yet been removed from the agenda.
The Declaration on National Harmony and Reconciliation, the first document President Saakashvili signed in January 2004 after inauguration, is the most adequate document for an analysis of whether Georgia might follow the retributive justice model.
The Declaration favors administering justice and bringing members of the previous regime to court. It described those who suffered in the early 1990s (the representatives and supporters of the Gamsakhurdia regime), on the one hand, and the new leaders together with President Saakashvili brought to power by the Rose Revolution, on the other, as instrumental in putting an end to the confrontation caused by the 1991-1992 events and achieving national harmony.
The victors of the 1991-1992 civil confrontation are not mentioned as entities of the national reconciliation process. This means that the new leaders probably treat the administration of justice
36 Zviadists left their forest bases and returned to their families to become equal members of Georgian society. About 30 prisoners still kept behind the bars were released; the new government instituted the national reconciliation commission under Guram Absnadze, who served as finance minister under Zviad Gamsakhurdia.
with respect to those who, if not directly involved in the 1991-1992 events, were indirectly involved and responsible for them (including the first president’s death and its investigation) as a priority.
The Declaration specially mentioned the use of armed forces of other states in domestic conflicts and power struggle, which directly referred to the special units of the Russian Transcaucasian Military District37 Eduard Shevardnadze relied on when he returned to Georgia to fortify his power in the context of the civil confrontation of the early 1990s. The document signed in January 2004 was aimed at uprooting the practice of using the armed forces of other states in domestic conflicts and power struggle and forming an adequate legal basis. The possibility of court proceedings against those who ruled the country under Shevardnadze and who used Russia’s armed forces is confirmed by the new leaders’ resolution to prevent similar anti-state activities in the future.
The Declaration offered a new interpretation of the 1991-1992 events, which are described as the “communist nomenklatura’s revenge.” This completely coincides with the new course and the leaders’ intention to uproot the last vestiges of Soviet mentality. We can assume that this is an indirect indication of the possibility that retributive justice will be used against those at the helm under Shevardnadze. The document hints that retributive justice could be administered, but today there are no reasons to apply this model. Georgia is demonstrating that justice can be achieved within the restorative justice model; this is largely explained by the fact that the new leaders took into account the international experience of national reconciliation.
C o n c l u s i o n
Theoretically, there are two more or less real alternatives.
1. The events could develop along the Latin American scenario: justice is ignored, while the state concentrates on finding the truth. The Georgian leaders are prepared to exchange an objective investigation of Zviad Gamsakhurdia’s death and cooperation of those who worked with the prosecution structures with Shevardnadze for complete amnesty and the promise not to disclose their names. The public will learn only certain details of the first president’s death. In return, the country’s leaders promise adequate compensation to the victims of political repressions.
2. The events could follow the Spanish scenario of burying the past: investigation of Gamsakhurdia’s death will be suspended as soon as certain circumstances calling for legal action are disclosed. Mikhail Saakashvili explains this decision by the need to let bygones be bygones in a country that is crying for national reconciliation. The new leaders describe the need to remedy the faults of the previous rulers and prevent their recurrence as the main achievement of the investigation.
Each alternative is possible. The fact that in the fall of 2005 the Georgian legislators refused to set up a commission to investigate the first president’s death on the grounds that the Georgian public knows everything there is to know favors the second alternative. More than that: in the spring of 2006 the state national harmony and reconciliation commission was disbanded. The decision of 20 May, 2005 of the Tbilisi City Assembly (Sakrebulo) to extend one-time financial aid to the victims of the political repressions of 1991-1992 and the later period points to the first scenario.
No matter how different, both alternatives have one thing in common—they reject retributive justice. Even though the Declaration on National Harmony and Reconciliation of January 2004 offers enough ar-
37 “V sobytiakh dekabria-ianvaria 1991-1992 godov v Gruzii prinimal uchastie spetsnaz rossiiskogo Zakavkazsko-go voennogo okruga,” Sobesednik, No. 4-5, 1994; “Vinovatoy, razumeetsia, mozhet byt tol’ko Rossia, kotoraia smogla vziat Bunker,” Izvestia, 27 October, 1989; “Da, ia pomog E. Shevardnadze po ego sobstvennoy pros’be,” Svobodnaia gazeta, No. 1, 1998.
guments to expect retributive justice, the leaders are unlikely to use it against the members of the previous regime. They will be guided by the same arguments that were used in most Latin American countries: continued stability. We should never forget that the Georgians are less insistent in their demands to put Shevardnadze’s people into the dock than the Latin Americans, therefore the present Georgian rulers’ obvious unwillingness to use retributive justice is highly justified. This is justified, among other things, by the removal of Eduard Shevardnadze (whom the Zviadists never accepted as a legitimate president) from the political scene. We cannot exclude the possibility that Shevardnadze left in exchange for specific guarantees; besides, it will be hard to support the accusations with concrete evidence.
This means that the retributive justice model was rejected because, on the one hand, the practice of criminal prosecution was discontinued and the Zviadists released from prison under Shevardnadze and, on the other, by the fact that he was removed during the Rose Revolution. More than that, the people at the helm today have many more serious concerns.
The Georgian leaders are obviously trying to avoid the “punish or not to punish” format. This explains why they are demonstrating restraint when assessing the events of 1991-1992, showing no haste in investigating Zviad Gamsakhurdia’s death, concealing the details from the public, limiting their financial support of the victims of political repressions by social protection measures, and refusing to institute court proceedings and repay their losses. This is explained by the fact that the legal responsibility issue and legal prosecution (no matter how unrealizable) should follow if the above measures are realized.
The rejection of the retributive justice model in relation to the members of the previous regime does not exclude, or even presupposes, that the course toward stronger justice will be carried out in relation to all other issues of the past. Since the national reconciliation issues in Georgia are inevitably connected with reconciliation between the Georgians, Abkhazians, and Ossets, we can expect that the process will continue in keeping with the restorative justice model.
Archil GEGESHIDZE
Ph.D. (Geogr.), Senior fellow at the Georgian Foundation for Strategic and International Studies
(Tbilisi, Georgia).
THE CONFLICT IN ABKHAZIA IN THE CONTEXT OF GEORGIA’S INTEGRATION INTO NATO
A b s t
This article aims to analyze the possible cause-and-effect relations between Georgia’s integration into NATO and dynamic settlement of the conflict in Abkhazia.
r a c t
The author believes that, in this context, a course aimed at membership in the North Atlantic Alliance is the best way to promote Georgia’s state-building and modernization.
