Transitional Justice Paper: Memory, Healing and Transformation in South Sudan

A Working Paper by David K. Deng

July 2014

Contents

“All post-conflict and divided societies confront the need to establish a delicate balance between forgetting and remembering. It is crucial that memorialization processes do not function as empty rhetoric commemorating the dead, while losing sight of the reasons and the context for past tragedies and obscuring contemporary challenges.”  [1]

– Farida Shaheed, UN Special Rapporteur in the field of cultural rights

Introduction

July 22, 2014 (SSNA) — The conflict in South Sudan is approaching its seventh month and there is no end in sight. Tens of thousands of people have been killed, approximately 1.1 million are internally displaced, and more than 400,000 have been forced to flee to neighboring countries.[2] Humanitarian agencies warn that 3.9 million people will face ‘crisis’ or ‘emergency’ levels of food insecurity by August if the fighting continues and if there is no increase of international assistance.[3]

Despite the toll that the conflict is taking on civilian populations, the Government of South Sudan and the Sudan People’s Liberation Movement-in-Opposition (SPLM-IO) have shown little interest in resolving their differences at the negotiating table. Peace talks mediated by the Intergovernmental Authority on Development (IGAD) have resulted in the signing of three agreements—a cessation of hostilities agreement on 23 January, a recommitment to that agreement on 5 May, and a 9 May “agreement to resolve the crisis”—all were violated within days of being signed.[4] Most recently, in June 2014, the SPLM-IO suspended its participation in the talks in protest over the manner in which civil society representatives were selected.[5]

As the parties continue to frustrate efforts to achieve a negotiated solution, the war becomes further entrenched. When and if an agreement is reached, it will take many years to mend the broken lives and relationships that the conflict will leave in its wake. Transitional justice—or the range of judicial and non-judicial processes that states emerging from war or authoritarian rule use to address legacies of massive human rights violations—will be an integral component of these efforts.

This paper is the second in a series of working papers developed by the South Sudan Law Society (SSLS) to stimulate thought on issues of truth, justice and reconciliation in South Sudan’s peace process. The paper explores options for the creation of public memorials to stand as a testament to the shared suffering and resilience of the South Sudanese people.

What is memorialization?

Memorialization is a process through which society acknowledges past human rights abuses and transforms them into tools for understanding both historical and contemporary injustices. Public memorials come in many forms, from museums and monuments that take years to construct and cost millions of dollars to collections of condolence notes, flowers, and pictures of victims at sites where they died or vanished.[6] Graffiti art and photo and poster exhibitions have even been recognized as a form of memorialization in the context of Syria, Peru and Timor-Leste’s transitions from conflict and authoritarian rule.[7]

Memorialization has both private, reflective objectives and public, educational ones.[8] On the one hand, the acknowledgment of human rights violations can be seen as a form of ‘symbolic reparations’ that helps survivors in their process of healing. At the same time, memorials can help post-conflict societies to build a collective narrative of their past and prevent abuses from recurring. According to a 2005 survey in northern Uganda, for example, 93 percent of respondents believed it was important for future generations to remember what happened. The top rationales for remembrance were to honor the victims (44 percent), prevent the violence from happening again (36 percent), and establish a historical record (22 percent). [9]

Timing

With respect to timing of memorialization activities, there are no hard-and-fast rules. Memorials may be initiated during or after conflicts. During conflicts, they can bring attention to ongoing atrocities in an effort to stop the bloodshed. In relation to the conflict Syria, for example, human rights organizations documented the names of 100,000 people killed during the war and read them aloud in front of the White House over the space of 72-hours to push the United States government to take more decisive action against the regime of Bashar al-Assad.[10]

Memorials can also highlight past abuses in order to promote healing, reconciliation and social transformation. The Monte Sole Peace School in Italy, for example, was built on a site where, in 1994, German and Italian troops massacred 770 civilians, mostly women and children. The school brings together people from conflict-affected areas, such as Palestinians and Israelis or Serbs and Albanians, for a three-week camp in which they’re able to use the site’s story as a means of inspiring young people to resist atrocities in their own areas.[11]

Risks

Memorialization is an inherently political undertaking and as such, carries certain risks. Post-conflict societies are fractured and polarized. Narratives of the conflict are hotly contested and states may be reluctant to allow perceptions of events to be shaped through open and inclusive processes over which the state has limited control. Poorly planned memorialization activities sometimes make the mistake of identifying particular groups as victims and ignoring abuses committed against other groups, thereby becoming tools of self-victimization that serve to divide rather than unite. Other times, they glorify as heroes and liberators people who have committed serious abuses during the conflict. 

Even if there is no overt political agenda at work, it can be very difficult to develop memorials that speak to the many diverse experiences within post-conflict societies. Communities are not monolithic and stories employed in memorials must necessarily represent a particular viewpoint. If the memorial does not highlight a narrative that resonates across many different sectors of society, it may fail to fulfill its purpose and leave people feeling alienated and excluded.

Principles

The following principles provide an initial set of criteria to guide the thinking of anyone engaged in memorialization activities in South Sudan. They are informed by established principles of international law, including the rights to know the circumstances surrounding the disappearance or death of a loved, to justice and to reparation and guarantees of non-recurrence, as well as from observations by civil society actors and survivors of abuses committed in South Sudan.

Integrity

A central goal of memorialization is to preserve the collective memory from extinction. Memorial designers thus have a duty to meet the highest standards of honesty, accuracy and impartiality. They must weigh conflicting priorities and find ways of balancing between those localized narratives that are most meaningful to people and more broadly applicable stories that resonate with a national audience. This requires rigorous research and analysis at every stage of the process.

Designers of memorials must also guard against the development of revisionist histories that negate experiences that may diverge from the official narrative.There is often a temptation in transitional states to use memorials to obscure a history of state-sanctioned human rights abuses and control definitions of victims and perpetrators. Memorials should not be used to further these sorts of political agendas. Instead, they should be framed in a manner that reflects the complex realities of large-scale conflict. They should avoid simplistic definitions of victims and perpetrators and seek to humanize all those that have been affected by the conflict. They should also recognize the heroic acts the people do to assist their fellow man and woman and not only the harms that were done.

Victim-centered and Inclusive

Designers of memorialization projects should coordinate closely with victim groups and survivors and ensure that their input is taken into consideration at all stages of planning, constructing and operating the memorial. As Farida Shaheed explains, the empowerment of victims is of central importance:

“This means promoting their recognition not only as victims but as full actors of their rehabilitation and important contributors to wider societal actions to overcome the tragedies of past events. All too frequently, once their testimonies have been gathered, victims receive no feedback on decisions taken and are left within their victim status, rather than being empowered through actively participating in establishing the memorial.”  [12]

In addition to victims’ groups, memorialization initiatives should provide for the involvement of a broad range of other stakeholders. The participation of public authorities who are responsible for managing the public space and developing national strategies to guide memorialization efforts over time is often vital to the success of a memorial, but designers should also engage with other civic actors who can contribute specific skills sets. Human rights activists can help connect the site and its stories to proposed or existing justice and accountability mechanisms, urban planners can help to ensure that the memorial is designed in accordance with land use plans, and educators can integrate the site and its history into school curricula.

Integration

Memorialization should be seen as complementary to, not a substitute for, other transitional justice initiatives. If properly planned, memorials can support truth commissions, criminal tribunals, institutional reforms, reparation schemes and vice versa. Truth commissions in El Salvador, Germany, Guatemala, Peru, Morocco and South Africa and the commission of inquiry in Chad have all included memorials among their recommendations. According to the Commission for Historical Clarification in Guatemala, for example:

“[T]he historical memory, both individual and collective, forms the basis of national identity. Remembrance of the victims is a fundamental aspect of this historical memory and permits the recovery of the values of, and the validity of the struggle for, human dignity.”  [13]

Courts too may require states to construct memorials as a remedy for human rights abuses. The Inter-American Court for Human Rights, for example, has ordered the construction of memorials in several instances. In Miguel Castro-Castro Prison v. Peru, the court ruled on a monument dedicated to the victims of the Peruvian civil war, stipulating that Peru “must guarantee, within a one-year period, that all persons declared as deceased in the present Judgment are represented in the monument called The Eye that Cries.”[14]Similarly, in 19 Merchants v. Colombia, the Court ordered Columbia to construct a memorial for 19 traders that were detained, disappeared and executed by Colombia in 1987, and in the Case of the Río Negro Massacres v. Guatemala, the Court requested the establishment of a museum to honour the victims of the internal armed conflict.  [15]

Locally-driven

As with any transitional justice initiative, memorialization activities are most successful when they are locally-driven and tailored to meet the demands, needs, expectations and aspirations of affected populations. International actors can play an important role in supporting memorialization initiatives through technical assistance, financial help, or facilitation in bringing contending parties together, but they need to be clear about the limits of their role. As Judy Barsalou and Victoria Baxter explain:

“It is essential that survivors of conflict, rather than the outsiders who come to help them, initiate memorial projects. Outsiders, especially international actors, may feel that they are more objective or balanced in their understanding of the conflict, particularly in its immediate aftermath, but their efforts to create memorials are likely to be greeted by either indifference or hostility. If memorials are to help reunite a society, they must be the outgrowth of a consultative process dominated by survivors.”  [16]

To create an environment conducive to locally-driven initiatives, time and resources should be devoted to consultations with a broad cross section of South Sudanese society prior to embarking on memorialization initiatives. In these consultations, attention should be paid to both top-down processes and fostering state ownership over the memorialization initiative, as well as bottom-up processes initiated by grassroots organizations and affected communities.

Options for Memorialization in South Sudan

The term ‘memorialization’ covers a broad range of practices. In order to provide a framework in which to consider possible approaches in the South Sudanese context, the subsections below examine four types of memorials: authentic sites, symbolic sites, documentation and activities.

Authentic Sites

Authentic site memorials take locations where atrocities occurred, such as massacre sites, detention facilities and mass graves, and transform them into places of knowledge. Survivors and people who lost loved ones can come to these places to remember their loss and seek healing. People may also visit the sites to better understand the events that took place and engage in discussions about how to prevent similar occurrences in the future.

Such memorials may also serve functional purposes. The Constitutional Court in South Africa, for example, was built in a structure called The Fort, a prison that in over its near century of existence held hundreds of thousands of inmates, including famous figures such as Mahatma Gandhi and Albert Luthuli. The site was chosen specifically for this torturous past. As Nelson Mandela remarked at the ceremony to announce the winner of the architectural competition that was used to select the individual who would design the court:

“The Constitutional Court building, indeed the entire Constitutional Hill precinct, will stand as a beacon of light, a symbol of hope and celebration. Transforming a notorious icon of repression into its opposite, it will ease the memories of suffering inflicted in the dark corners, cells and corridors of the Old Fort Prison. Rising from the ashes of that ghastly era, it will shine forth as a pledge for all time that South Africa will never return to that abyss. It will stand as an affirmation that South Africa is indeed a better place for all.” [17]

Designers of authentic site memorials have to balance a number of competing interests. All memorials must find a way to publicly recognize people’s suffering and portray the significance of the acts committed while maintaining respect for the dead. This challenge is heightened for authentic sites. Since they may contain human remains or other evidence of the facts and circumstances surrounding the death or disappearance, authentic sites must weigh considerations about the type of memorial to construct against the need to preserve an area as a crime scene. The authorities may also attempt to close sites where atrocities took place or destroy them in order to erase the memories attached to the site and to cover up the crimes that took place.[18] Authentic site memorials must counter any such efforts.

The 23 January cessation of hostilities agreement provides an entry point for memorials such as these in South Sudan. In the agreement, the parties agreed, “to provide an enabling environment to facilitate decent burials of the dead and memorialization, support reunion of families, and any such acts that promote human dignity.”[19] This could provide space for immediate actions to secure authentic sites and carry out the necessary investigations while assessing their viability as memorials moving forward.

There are numerous locations in South Sudan that could be developed into authentic site memorials. Mass graves, abandoned villages and illegal detention facilities, each with their own unique stories, can be found throughout the conflict areas. The Giyada military barracks in Juba, for example, has been a central location of human rights abuses and conflict since the previous 22-year civil war in Sudan. During the last war, government authorities imprisoned countless numbers of people in Giyada, often on suspicion that the individuals were allied with the SPLM/A. When people went in, they rarely came out. The current conflict also originated in Giyada, when a dispute erupted among competing groups in the presidential guards in December 2013. Once the conflict is over and a transitional government is established, one option for a public memorial could be to take the barracks at Giyada and convert them into public memorial that tells the story of South Sudan’s history of conflict and brings attention to the suffering that it has inflicted upon the people of South Sudan.

Another option could be to establish a memorial to remember the victims of the mass killings committed by security forces in Juba in the early days of the conflict. In one particularly egregious incident, hundreds of people were rounded up and taken to a police facility in the Gudele neighborhood. Several times over the course of a night, unknown individuals shot through the windows and door into the group of men in the room. After the shootings, individuals in uniform went inside the room and shot again or killed with knives anyone found alive.[20] Establishing a memorial on the site could serve as a powerful reminder of the horrors that South Sudanese have inflicted on one another and damage that violence has done to the social fabric in the country.

One factor to bear in mind in considering authentic sites in South Sudan is that many of the places where atrocities have taken place serve functional purposes. Given the limited infrastructure in the country, hospitals, schools and churches where atrocities have been committed may still need to be used after the conflict has ended. In such circumstances, the concerned authorities and affected communities could consider integrating some recognition of what happened in these locations in order to honor those who were lost while still retaining the functionality of the structures.

Symbolic Sites

Symbolic sites include various types of structures that symbolize aspects of a nation’s struggle to transition from conflict or authoritarian rule, such as monuments or museums. Often documentation centers or archives are established near such memorials to provide additional information on the context or space for people to engage in discussions about the memorial. As with authentic sites, symbolic sites can also be formed with functional uses in mind. Consultations with people affected by the violence in different parts of South Sudan can be used to determine the type of symbolic sites that resonate most with people’s experiences.

Documentation

The documentation of the facts and circumstances surrounding human rights abuses is a necessary precursor to other forms of memorialization, but documentation activities can also serve as a form of memorialization in and of themselves.[21] Documentation efforts come in a variety of forms, including press coverage, responses from regional or international actors such as the African Union (AU) or United Nations (UN), the documentation of oral testimonies, public archives or the documentation of atrocities by public authorities themselves. This information is often vital to inform future efforts at justice and accountability, but it may also be of value to victims in its own right.

The investigation and documentation of human rights abuses is particularly important in the South Sudanese context. The AU’s Commission of Inquiry on South Sudan may provide a starting point in this regard, but due to its short time period and the limited scope of its engagement on the ground in South Sudan, it is unlikely that the Commission will be in a position to provide a comprehensive narrative of the conflict. In order to develop a more thorough account, South Sudan would need to establish a truth, justice and reconciliation commission and provide it with a robust mandate to systematically document the war.

Such a commission could not be established until the fighting stops and there is a degree of stability in the country. In the meantime, documentation efforts by South Sudanese and international actors can help to build a body of data to support future efforts at truth and justice while memorializing the abuses that continue to occur. In a recent assessment of justice, accountability and reconciliation measures in South Sudan, the American Bar Association (ABA) recommended the deployment of independent and professional investigation teams staffed by experienced international investigators to augment and support the efforts of the AU Commission of Inquiry.[22] If such a recommendation were followed through upon, South Sudanese investigators could be added to the investigation teams to help build local capacity and to ensure that the investigations are responsive to local realities.

Activities

Memorialization can encompass a broad range of activities, such as commemorative days, artistic displays and other initiatives that do not require the construction of a physical structure. For example, one of the first commissions of inquiry in Africa, conducted in Chad from 1990 to 1992, recommended that the second Sunday of December be declared a day of prayer and contemplation for the victims of repressive acts committed during the rule of Hissène Habré. Other examples can be seen in Argentina in the 1980s, where the mothers of people who were disappeared by the Pinochet regime would hold daily gatherings to call for the return of their missing children, and in Apartheid South Africa in the 1980s, where citizens used protest theatre to make claims for justice and draw attention to the injustices of Apartheid.  [23]

Naming individuals who were lost to a conflict can be a powerful method of bringing attention to the circumstances of their death or disappearance. In describing the symbolic power of naming those that were lost to the conflict in Syria, Lina Sergie Attar, a Syrian-American architect and writer, wrote:

“When you call someone by their name, something materializes that transcends the ephemeral utterance. The concrete syllables of one’s name represents everything that person is or was supposed to be. As we read 100,000 names, our dead gain the weight of recognition that they deserve but were never granted. Name after name, hour after hour, days through the nights, from reciting with a microphone in front of a bustling street audience to whispers alone in the dark surrounded by a slumbering world: we render each name visible and heard for a moment in time before it disappears once more.”  [24]

Similar projects have been initiated in South Sudan. A number of individuals have been gathering names of people killed in different locations. Lists of people killed in Juba in the early days of the conflict, in Bor and in Malakal have been circulating for months. A Sudanese newspaper also published the names of people killed in a massacre at a mosque after SPLM-IO forces captured Bentiu. While these lists an important source of information on the scale of the conflict, one of the problems with the ad hoc compilation of names that has taken place thus far is that the lists tend to focus on specific communities. As a result, people only see the suffering of their own communities and do not fully appreciate the harm that the conflict has done to the nation as a whole.

To remedy this shortcoming, a group of South Sudanese civil society actors have initiated a project called, Naming Those We’ve Lost, in an effort to compile the names of everyone dead or missing since 15 December 2013 as a result of the conflict. Once a sufficient number of names have been compiled and the accuracy of the information is verified, the group plans to memorialize the names in various ways, such as by reading them over the radio and publishing them in newspapers and on websites. Eventually, the names can be featured on public memorials constructed somewhere in South Sudan.

Conclusion and Recommendations

In the nine years of relative peace that followed the signing of the Comprehensive Peace Agreement (CPA) in 2005, little effort was made to address the legacy of conflict, violence and human rights abuses in South Sudan. This failure to address the past was one of the factors that contributed to the outbreak of the current conflict. If the parties manage to reach a negotiated solution and the violence stops, they should not repeat the same mistake. In order to secure a lasting peace, South Sudan must reckon with its history of massive human rights violations. Memorialization initiatives should be an integral part of any such process. While some memorialization activities would have to wait until there is a greater deal of stability, others can start immediately. To support efforts in this regard, the SSLS recommends the following:

1. Immediately take steps to protect mass graves and commemorate the dead – In line with the requirements of the 23 January cessation of hostilities agreement, the Government of South Sudan, the SPLM-IO and other stakeholders should take steps to immediately identify and preserve mass graves and other sites where human rights abuses took place. They should also support civil society efforts to commemorate and memorialize the dead through activities such as the Naming Those We’ve Lost project discussed above.

2. Increase efforts to document violations of international humanitarian and human rights law – Documentation efforts should be promoted on all fronts. The AU Commission of Inquiry may provide a starting point, but given the scale of the violations and the limited scope of the AU’s inquiry, additional action in required. The parties to the conflict and South Sudan’s international partners should support efforts by other South Sudanese and international actors to document human rights abuses in the country and build a more full and accurate narrative of the conflict. The information compiled should be publicized as a form of memorialization in and of itself and to support future efforts at truth and justice.

3. Include language in a peace agreement regarding memorialization activities – Stakeholders involved in the IGAD-led peace talks currently underway in Addis Ababa should include language regarding memorialization activities in any peace agreement that comes out of the process. The creation of public memorials should be among the tasks mandated to the transitional government in its efforts to promote truth, justice and reconciliation in South Sudan. The provisions of the 23 January cessation of hostilities agreement regarding the facilitation of “decent burials of the dead and memorialization” should be incorporated into the final peace agreement.

4. Create a truth, justice and reconciliation commission to conduct research and make recommendations on memorialization activities – The peace agreement should require the transitional government to establish a truth, justice and reconciliation commission in order to build a narrative of the facts and circumstances surrounding the conflict in South Sudan and to make recommendations for how the country can address legacies of violence. The truth, justice and reconciliation commission should be mandated to make recommendations on memorialization activities that can be pursued in a complementary manner to other transitional justice initiatives.

5. Conduct research to identify victim and survivor preferences for memorialization – Research should be conducted to better understand the type of memorialization activities that resonate with populations in South Sudan and how memorialization can be incorporated into transitional justice strategies in the country.