Transitional Justice and Peacebuilding on the Ground: Victims and Ex-Combatants (Law, Conflict and International Relations) (10 page)

15
 According to a landmark UN report, transitional justice “comprises the full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation. These may include both judicial and non-judicial mechanisms, with differing levels of international involvement (or none at all) and individual prosecutions, reparations, truth-seeking, institutional reform, vetting and dismissals, or a combination thereof.” Report of the Secretary-General: The Rule of Law and Transitional Justice in Post-conflict Societies, UN Doc. S/2004/616 (23 August 2004), para. 8, available at <
www.un.org/Docs/sc/sgrep04.html
>, accessed 7 June 2011.

16
 Liliana Lyra Jubilut, “Towards a New Jus Post Bellum: The United Nations Peacebuilding Commission and the Improvement of Post-Conflict Efforts and Accountability,”
Minnesota Journal of International Law
, vol. 9 (2011), p. 27.

17
 Adedeji Ebo, “Security Sector Reform as An Instrument of Sub-Regional Transformation in West Africa,” in Alan Bryden and Heiner Hanggi (eds),
Reform and Reconstruction of the Security Sector
(Munster: DCAF/LIT Verlag, 2004), p. 19.

18
 Ibid.

19
 For a review of both tensions and overlap between transitional justice, SSR, and judicial reform, see Alexander Mayer-Rieckh and Roger Duthie, “Enhancing Justice and Development Through Justice-Sensitive Security Sector Reform,” in Pablo de Greiff and Roger Duthie (eds),
Transitional Justice and Development: Making Connections
(New York: Social Science Research Council, 2009), p. 214; Muna B. Ndulo and Roger Duthie, “The Role of Judicial Reform in Development and Transitional Justice,” in Pablo de Greiff and Roger Duthie (eds),
Transitional Justice and Development: Making Connections
(New York: Social Science Research Council, 2009), p. 250.

20
 Sriram
et al
., “Evaluating and Comparing Strategies of Peacebuilding and Transitional Justice,” op. cit., p. 13.

21
 Message by Ms. Navanethem Pillay at the Special Summit of the African Union (22 October 2009), available at <
www.unhchr.ch/huricane/huricane.nsf/0/110E705F1034E04
8C1257657005814CE?opendocument
>, accessed 7 June 2011.

22
 United Nations Security Council Resolution 1645, op. cit., preamble and para. 2(b).

23
 Peacebuilding “involves a range of measures targeted to reduce the risk of lapsing or relapsing into conflict, to strengthen national capacities at all levels for conflict management, and to lay the foundations for sustainable peace and development.” Quoted in McCandless, “Lessons from Liberia,” op. cit., p. 2.

24
 Gerhard Thallinger, “The UN Peacebuilding Commission and Transitional Justice,”
German Law Journal
, vol. 8, no. 7 (2007), p. 696.

25
 Strategic Framework for Peacebuilding in Burundi, op. cit., paras 30–31.

26
 Ibid., para. 16.

27
 IRIN News, “Burundi: Delays in Justice Mechanisms ‘Fuel Impunity’” (3 December 2010).

28
 For a more detailed analysis of the possible reasons behind the delay, see Human Rights Watch, “Seductions of ‘Sequencing’” (18 March 2011), available at <
www.hrw.org/en/news/2011/03/18/seductions-sequencing#&_;Toc288230733
>, accessed 11 July 2011.

29
 Lars Waldorf, “Linking DDR and Transitional Justice,” in Ana Cutter Patel, Pablo de Greiff, and Lars Waldorf (eds),
Disarming the Past, Transitional Justice and Ex-Combatants
, (New York: International Center for Transitional Justice, 2009), p. 18.

30
 United Nations Department of Peacekeeping Operations (DPKO),
Integrated Disarmament, Demobilization and Reintegration Standards (IDDRS)
(New York: DPKO, 2006), sec. 1.2.

31
 These are the United Nations Assistance Mission in Sierra Leone (UNAMSIL, 1999), the United Nations Mission in the Democratic Republic of Congo (MONUC, 1999), the United Nations Mission in Liberia (UNMIL, 2003), the United Nations Mission in
Côte d’Ivoire (UNOCI, 2004), the United Nations Stabilization Mission in Haiti (MINUSTAH, 2004), the United Nations Operation in Burundi (UNOB, 2004), and the United Nations Mission in the Sudan (UNMIS, 2005).

32
 These include: Aceh (Indonesia), Afghanistan, the Central African Republic, Republic of Congo, Niger, Somalia, and Uganda.

33
 United Nations Development Programme,
Practice Note: Disarmament, Demobilization and Reintegration of Ex-Combatants
(New York: UNDP, 2005), p. 18.

34
 Disarmament, Demobilization and Reintegration: Report of the Secretary-General, UN Doc. A/60/705 (2 March 2006), p. 3.

35
 United Nations Department of Peacekeeping Operations (DPKO),
Integrated Disarmament, Demobilization and Reintegration Standards (IDDRS)
, op. cit.

36
 Waldorf, “Linking DDR and Transitional Justice,” op. cit., p. 16.

37
 The full impact of this lack of coordination is hard to evaluate. In the end, the majority of ex-combatants in Sierra Leone remained willing to participate in TRC activities despite any misgivings. It remains unclear, however, how many more might have participated if such misinformation had been corrected at an earlier stage. Lars Waldorf, “Ex-Combatants and Truth Commissions,” in Ana Cutter Patel, Pablo de Greiff, and Lars Waldorf (eds),
Disarming the Past, Transitional Justice and Ex-Combatants
, (New York: International Center for Transitional Justice, 2009), p. 115.

38
 The victim/perpetrator distinction can be problematic in several respects, particularly in the context of DDR, where many former combatants are both perpetrator and victim at the same time. Nevertheless, the categories are used in this chapter as they continue to have relevance to analysis of policy and programming for both DDR and transitional justice, so long as they are not understood with undue rigidity.

39
 Kimberly Theidon, “Transitional Subjects: The Disarmament, Demobilization, and Reintegration of Former Combatants in Columbia,”
The International Journal of Transitional Justice
, vol. 1 (2007), p. 67.

40
 Report of the Secretary-General: The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, op. cit., p. 4.

41
 United Nations Department of Peacekeeping Operations (DPKO),
Integrated Disarmament, Demobilization and Reintegration Standards (IDDRS)
, op. cit., sec. 2.10.

42
 The concrete impact of any such resentment on reintegration has been disputed, and may vary from country to country. For a fuller discussion, see the chapter by Waldorf in this volume.

43
 Lars Waldorf, “Linking DDR and Transitional Justice,” op. cit., p. 18.

44
 Michael Knight and Alpaslan Ozerdem, “Guns, Camps, and Cash: Disarmament, Demobilization and Reinsertion of Former Combatants in Transitions from War to Peace,”
Journal of Peace Research
, vol. 41, no. 4 (2004), p. 499.

45
 Sami Faltas, “DDR without Camps: The Need for Decentralized Approaches: Topical Chapter of the Conversion Survey” (Bonn International Center for Conversion, 2005), p. 2, available at <
www.sweden.gov.se/content/1/c6/06/54/02/5d16fcf2.pdf
>, accessed 7 June 2011.

46
 Macartan Humphreys and Jeremy M. Weinstein, “Demobilization and Reintegration,”
Journal of Conflict Resolution
, vol. 51, no. 4 (August 2007), p. 549.

47
 Stockholm Initiative on DDR (March 2006), Article 55, available at <
www.sweden.gov
. se/sb/d/4890
>, accessed 7 June 2011.

48
 In Sierra Leone, for example, the Special Court’s outreach efforts included activities targeting ex-combatants to explain the meaning of the phrase “those who bear the greatest responsibility” for crimes within its mandate. The intent was to dispel rumors that the court intended to indict every fighter. Mohamed Gibril Sesay and Mohamed Suma, “Transitional Justice and DDR: the Case of Sierra Leone,” International Center for Transitional Justice (June 2009), pp. 18–19.

49
 Kimberly Theidon, “Transitional Subjects,” op. cit., p. 90.

50
 “Reintegration is the process by which ex-combatants … gain sustainable employment and income. Reintegration is essentially a social and economic process with an open time-frame, primarily taking place in communities at the local level. It is part of the general development of a country … and often necessitates long-term external assistance.” DPKO,
IDDRS
, sec. 4.30.

51
 Nat J. Colletta and Robert Muggah, “Context Matters: Interim Stabilization and Second Generation Approaches to Security Promotion,”
Conflict, Security & Development
, vol. 9 (2009), p. 444.

52
 Tsjeard Bouta, “Gender and Disarmament, Demobilization and Reintegration, Building Blocs for Dutch Policy” (The Hague: Netherlands Institute of International Relations “Clingendael,” 2005), p. 8.

53
 These practices are sometimes referred to as “traditional practices.” Some scholars object to the use of the word “traditional” both because it can be read to suggest that practices are static, rather than dynamic, and because it can also have pejorative implications. In this chapter, I have chosen to use the word “local” to avoid these suggestions, and yet to try to distinguish these practices from those more often associated with formal, “modern,” or Westernized legal systems.

54
 Roger Duthie, “Local Justice and Reintegration Processes as Complements to Transitional Justice and DDR,” in Ana Cutter Patel, Pablo de Greiff, and Lars Waldorf (eds),
Disarming the Past, Transitional Justice and Ex-Combatants
(New York: International Center for Transitional Justice, 2009), p. 233.

55
 See generally Patrick Burgess, “A New Approach to Restorative Justice—East Timor’s Community Reconciliation Process,” in Naomi Roht-Arriaza and Javier Mariezcurrena (eds),
Transitional Justice in the 21st Century
(Cambridge: Cambridge University Press, 2006).

56
 For example, crimes committed by the Rwandan Patriotic Front, the Tutsi-led military force that stopped the genocide, are excluded from the
gacaca
process. See Christopher Le Mon, “Rwanda’s Troubled Gacaca Courts, Human Rights Brief,” vol. 14, no. 2, p. 16, Winter 2007, available at <
www.wcl.american.edu/hrbrief/14/2lemon.pdf
>.

57
 In this, local practices are not unlike more formal legal systems, though the checks and balances in both systems are likely to be different, and highly variable from state to state.

58
 Roger Duthie, “Local Justice and Reintegration Processes as Complements to Transitional Justice and DDR,” op. cit., pp. 243–45.

59
 See the chapter by Nagy in this volume.

60
 Johanna Herman, “Reintegration, Justice and Reconciliation in the Great Lakes Region: Lessons from the Multi-Country Demobilization and Reintegration Program” (paper prepared for the Annual Convention of the International Studies Association, San Francisco, CA (March 26–29, 2008), pp. 2–3.

61
 Report of the Secretary-General: The Rule of Law and Transitional Justice in Post-conflict Societies, para. 36. Similarly, the
IDDRS
provides that “[re]integration programmes for ex-combatants should … support the establishment of local conflict-resolution mechanisms,” while also providing that “any connection to locally based processes must respect international human rights norms.” DPKO,
IDDRS
, sec. 2.30 and 4.30.

62
 Gerhard Thallinger, “The UN Peacebuilding Commission and Transitional Justice,” p. 699.

63
 Review of Progress in the Implementation of the Strategic Framework for Peacebuilding in Burundi, para. 21.

64
 Ibid.

65
 Report of the Peacebuilding Commission on its Fourth Session, UN Doc. A/65/701-S/2011/41 (28 January 2011), para. 34, available at <
http://www.un.org/peace/peacebuilding/docsandres.shtml
>, accessed 7 June 2011.

66
 Human Rights Watch, “Seductions of ‘Sequencing,’” op. cit.

67
 Review of the United Nations Peacebuilding Architecture, op. cit., paras 57–59.

  3
Transitional Justice and Ongoing Conflict

Par Engstrom

Introduction

The field of transitional justice (TJ) emerged out of attempts to give theoretical meaning to
ad hoc
accountability policies adopted as part of broader processes of political democratization in Latin America and Eastern Europe. From these beginnings TJ has dramatically expanded in scope and ambition. The hugely increased normative ambitions of TJ are nowhere more apparent than in practices of judicial intervention in situations of ongoing conflict. Such interventions have brought the field of TJ into much closer contact with the related, but distinct, fields of conflict resolution and peacemaking (or peacebuilding). Peace-builders have also dramatically expanded their policy objectives beyond the cessation of armed conflict to include the establishment of a sustainable peace, the neutralization of the incentives for a return to conflict, and the realization of a variety of accountability and rule of law strategies. This chapter accounts for the expanding normative ambitions of the field of TJ and evaluates the implications for TJ of its involvement in ongoing conflicts. It also suggests some tentative ways for TJ to recast its engagement with ongoing conflicts.

The chapter is divided into three parts. The first examines the ways in which TJ is increasingly embedded in conflict resolution and peacebuilding efforts and evaluates the relatively recent trend towards judicial intervention in ongoing conflicts. It examines two main underlying trends that drive these developments: the intractability of contemporary armed conflict, and the dramatic development of the “global accountability regime” and the associated expansion of the rights of victims. It also briefly assesses the normative and operational overlaps inherent in the ambitious agenda of “liberal peacebuilding.”