Dianne Orentlicher discusses this issue and notes that on a practical level, the duty to bring perpetrators to justice in transitional structures arguably extends only to persons most responsible directly or otherwise. She concludes that: Customary law should …not require prosecution of every person… Prosecution of those who were most responsible for designing and implementing a system of human rights atrocities or for especially notorious crimes that were emblematic of past violations would seemingly discharge governments customary law obligation…provided the criteria used to select potential defendants did not appear to condone or tolerate past abuses.⁷⁸ Mendez gives pointers to the dilemma of who to prosecute between the superiors and those who carried out the orders a discussion that will dominate Zimbabwe's quest for justice. He observes that whilst it is worthwhile focusing on the most responsible there is need to prosecute even the so-called “trigger pullers”. He argues that it would be regressive to allow everyone else involved down the chain of command to escape prosecution on the grounds of having followed orders. In a persuasive argument Mendez advises that: It would be a tremendous step backward to allow obedience to be used as a valid defense, especially when dealing with orders that exhibited a manifest illegality or when there was a reasonable chance of disobeying these these orders without risking limb or life.⁷⁹ Reparations Reparations to victims of human rights are going to be an essential element of any accountability measures in Zimbabwe. However, the Forum notes that it would be retrogressive for any process that would offer monetary compensation and then suppress all possibilities of justice, truth recovery and institutional reform to be used in any situation. One important point to note will be the need to distinguish between development rights and reparation issues. By keeping the two initiatives separate, in an increasingly poor country like Zimbabwe, there can be avoidance of creating privileges and resentment towards victims. For example, Zimbabwe's economy has been in a downward spiral and that any efforts to give out money will cause further damage. Reform of abusive state security institutions The reform of abusive public institutions through lustration will be one important step in providing justice for victims of past brutalities by state security agents. Any new democratic dispensation requires that institutions be free from individuals who abused the power of those institutions in the past.⁸⁰ Vetting public institutions and excluding abusive individuals serves two purposes: first, it helps to generate civic trust between citizens and their institutions; and second, it increases the State's effectiveness in meeting the challenge of fighting crime and redressing wrongs by allowing it to count on the cooperation of its citizens. Whatever way Zimbabwe's transition will take there are certain fundamentals of justice that will need to ⁷⁸ The reasons for prosecution are canvassed in the groundbreaking article by D Orentlicher “Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime‟ (1991) 100 Yale Law Journal 2551, at 2537. ⁷⁹ JE Mendez, “In Defense of Transitional Justice‟, in AJ MacAdam (ed), Transitional Justice and the Rule of Law in New Democracies (University of Notre Dame Press, Notre Dame 1997). According to the International Criminal Court, crimes against humanity include crimes such as the extermination of civilians, enslavement, torture, rape, forced pregnancy, deportation, persecution on political, racial, national, ethnic, cultural, religious or gender grounds, and disappearances but only when they are part of a widespread or systematic attack directed against a civilian population. ⁸⁰ See generally on the reform of the police in Northern Ireland, M O'Rawe, “Transitional Policing Arrangements in Northern Ireland: The Can't and the Won't of the Change Dialectic‟, (2003) 26 Fordham International Law Journal, 1015 – 1073. Anti-Impunity Report 39