On February 5th, the New York Times ran a piece by Thabo Mbeki on the closure of civil wars, and the role of courts in the reconstruction period. Mbeki was President of South Africa from 1998-2008, and witnessed the nation’s difficult recovery from Apartheid. In the closing paragraph of the article, Mbeki states:
“The United States also had a civil war. Its fault lines were already visible nearly a century before, at independence. Americans would do well to remember that the country’s political leadership was wise enough to rule out court trials for the defeated at the end of the Civil War and instead opt for Reconstruction.”
Mbeki’s sentiment is laudable, but flawed. Although I hate to jump into historical civil wars, there are a few reasons to do so in this case:
1) Civil wars have changed drastically in terms of actors, motivation, resources, size, and several other notable factors since the start of the Cold War, let alone the time of the American Civil War. The comparison is anachronistic.
2) Reconstruction in the United States was not a smooth journey of reconciliation – it was a bitter journey that included the Military Reconstruction Act of 1867, which divided the defeated South into 5 militarily-ruled territories. These territories were ruled by martial law, with troops actively in place. Johnson’s impeachment was actually tied to the reconstruction process, a result of displeasure among the Radical Republicans.
3) Henry Wirz, a confederate soldier of Swiss origin was executed as a result of his management of Camp Sumter during the war. His trial and execution took place after the war ended, and was for war crimes. He is the most famous case of an execution and trial following the war, but not the only one. Robert Cobb Kennedy and Champ Ferguson were also executed following the war for their involvement as confederate leaders.
The divisions between the North and South are still visible in many modern political debates. They definitely are not a guide post for Reconstruction in post civil war states.
South Africa’s post civil war reconciliation movement had its roots in restorative justice, an idea that definitely warrants study, and shows promising results in the settings where it has been implemented. The Truth and Reconciliation Committee had its flaws, but was one of the first (if not the first) initiatives of its kind. To compare it to the American post civil war reconstruction cheapens its actual impact on post-conflict reconstruction.
The role of courts, as Mbeki suggests, isn’t necessarily conflict resolution. The idea of restorative justice and reconciliatory movements can have a notable and worthwhile impact, however. If courts are encouraged to push for restorative justice in post-conflict scenarios, they may be able to play an important role. What doesn’t belong in the post-civil war setting is the traditional incarceration-based justice system used in many modern states.
Why not incarcerate individuals for their involvement in civil wars? There are many reasons, but the most pressing of all is the lack of resolution and closure provided to either party when incarceration or execution is used. On the contrary, results with reconciliation and restorative justice practices are promising. See the discussion of Mogamba spirits on the post civil war period in Mozambique for more on this dynamic, particularly those found in the book Traditional Justice and Reconciliation after Violent Conflict: Learning From African Experiences.
For more on restorative justice and its role in post-insurgency and post civil war environments, see the following resources:
Jus Post Bellum and Transitional Justice (2013) May and Edenberg
The Guilt of Nations: Restitution and Negotiating Historical Injustices (2000) Barkan
Burying the Past: Making Peace and Doing Justice After Civil Conflict (2003) Biggar
Justice and Reconciliation in Post-Apartheid South Africa (2009) du Bois and du Bois-Pedain