Transitional Justice and Peacebuilding on the Ground: Victims and Ex-Combatants (Law, Conflict and International Relations) (12 page)

Hence, the expansion of both TJ and peacebuilding has created significant normative and operational overlaps between these traditionally distinct fields of theory and practice. There are indeed many shared features within the broader global context of enthusiasm for “liberal peacebuilding” that gained a certain momentum through the 1990s and into the 2000s. For some, TJ policies are closely associated with the rise of state-building.
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For others justice plays a central role “in establishing the foundations for genuine and long-lasting peace.”
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Similarly, for former UN Secretary-General KofiAnnan, TJ and peacebuilding are based on mutually reinforcing imperatives: “Justice and peace are not contradictory forces. Rather, properly pursued, they promote and sustain one another. The question, then, can never be whether to pursue justice and accountability, but rather when and how.”
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Yet, despite the partially overlapping development of TJ and peacebuilding, attempts to bring these fields together have generated significant tensions. Partly, this is due to the fact that not all components of liberal political practice can easily be reconciled and partly to institutional boundaries, professional trajectories, normative commitments, and policy preferences of these fields of theory and practice.
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Demands for accountability have traditionally tended to be construed as obstacles to peace. Indeed, for the recently created UN Peacebuilding Commission (PBC), accountability is not a top priority. For the PBC, it seems, given the absence of TJ in its institutional mandate, accountability should, at best, be deferred until later in peacebuilding processes.

II. Judicial Intervention in Ongoing Conflict

There has been a dramatic shift in the practice of TJ towards the pursuit of accountability, particularly through prosecutions, during ongoing conflict. This
trend of (external) judicial interventions in the midst of conflict and the pursuit of TJ in the absence of an apparent transition can be explained by the combined effects of the developments examined in the previous section. However, from intervention in ongoing conflicts, a number of specific challenges have become particularly acute. First, international judicial interventions are underpinned and reinforced by the belief held by some proponents that the tool of indictments and the threat of prosecution can alter the prospects for achieving peace. Second, judicial interventions during conflict have exacerbated the internationalization of TJ in ways that risk undermining local accountability processes. Third, international judicial interventions have further strengthened the trend towards the increasing judicialization of TJ.

1. Rise of Consequentialism and the Empirical Turn in Transitional Justice Research

The shift in TJ debates over the course of the last two decades has been significant. For advocates such as Diane Orentlicher in the beginning of the 1990s the focus was on the legal status of a
duty
to prosecute.
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Although TJ practitioners were indeed concerned with the potential impact of strategies adopted, particularly with regards to the potentially destabilizing effects of wide-ranging prosecutions on fragile transitional societies, both the policy and scholarly debate was overwhelmingly normative in character. This can be explained in large part by the fact that the TJ agenda was overwhelmingly driven by activists often with personal histories of suffering as opposed to the more professionalized cadre of actors who have subsequently been driving the policy agenda.

In recent years, however, with the practice of judicial interventions in ongoing conflicts, particularly through the ICC, combined with the rise of donors’ “impact agenda,” TJ advocates have increasingly justified their activities on the basis of utilitarian logics in general and the logic of deterrence in particular. Indeed, as Vinjamuri highlights, “recent arguments have emphasized the instrumental purposes of justice, essentially recasting justice as a tool of peacebuilding and encouraging proponents and critics alike to evaluate justice on the basis of its effects.”
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Hence, the decision to pursue justice during ongoing conflict has been justified primarily in terms of its capacity to alter the outcome of the conflict by enhancing the prospects for peace through judicial deterrence. For proponents, the deterrence effect of criminal punishment affects the cost-benefit calculations of potential perpetrators. Credible threats of punishment deter rights-violating behavior and encourage engagement with peace processes. Indicting abusive political leaders may also marginalize, delegitimize, and remove perpetrators and potential spoilers of peace processes.

Skeptics argue, however, that punishment for perpetrators of serious violations undermines efforts to bring violent conflict to an end and precludes the possibility of forgiveness, reconciliation, and other societal goals.
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On this view, attempts to hold individuals to account may prevent possibilities of ending conflicts through negotiation and may provoke a backlash or intensification of political and societal
divisions. The prospects of being held to account for violations leave potential spoilers with little choice than to undermine peace processes. Containing spoilers, not holding them to account, should, on this view, be the top priority of peace negotiators.

The Turn Towards Empiricism

The shift from an emphasis on a putative duty to prosecute to a logic of consequences has shaped debates surrounding “deterrence effects” of international prosecutions in ongoing conflicts and prevention of future conflicts. Since the creation of the ICC the debate as to whether seeking justice for grave international crimes interferes with efforts to resolve armed conflict has undoubtedly intensified as the likelihood and credibility of prospects for prosecution have increased. In particular, the move towards judicial interventions in ongoing conflict, underpinned by a consequentialist logic, has led to demands for empirical support of TJ claims. However, the jury is still very much out when it comes to the empirical evidence to support claims regarding the impact of TJ (or lack thereof).
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For example, several recent studies of the impact of TJ mechanisms on peace have failed to confirm the claim that the pursuit of international criminal justice leads to peace, or that justice initiatives are necessary for sustained peace.
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Undoubtedly, the causal pathways involved in these relationships are highly complex and indeterminate. Still, the lack of robust empirical evidence is clearly problematic for any claim based on the logic of consequences. By the same token, however, there is little evidence to suggest that the anticipated negative consequences of pushing for accountability actually materialize.
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There is, in other words, not sufficient empirical evidence to conclude either that accountability strategies increase the risk of conflict or that they increase the likelihood of continuing conflict.

For some proponents of accountability, the absence of robust empirical evidence that shows that pushing for accountability undermines peace and leads to a deterioration of the human rights situation provides solid grounds for continued advocacy.
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Yet, the absence of robust empirical evidence has forced accountability advocates towards the adoption of “faith-based” policy prescriptions.
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After all, most TJ advocates often have neither the resources nor the training to conduct impact assessment exercises or to collect the necessary empirical evidence. There are also inherent difficulties in identifying and evaluating the many complex variables shaping TJ outcomes and a relative absence of long-term data sets that would allow for comparisons over time. But it is also the case, as argued by Clark and Palmer, that “[t]he field of TJ balances uneasily between analysis and advocacy … [and the] fervent certainty of much human rights advocacy has often hampered the tasks of impartial research and informed policymaking.”
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2. Internationalization of Transitional Justice

The early TJ efforts of the 1980s, particularly in Latin America, were distinctly local in origins and primarily driven by local actors. But starting in the 1990s the
Nuremberg precedent was revived in the form of
ad hoc
, international tribunals. Yet, these tribunals were soon criticized for being far removed from the populations affected by the violations and for the lack of support from domestic judicial systems. Partly in response to these criticisms, on the one hand, hybrid courts combining national and international law were established and, on the other, a permanent international tribunal, the ICC, was eventually created. Yet, the internationalization of TJ activities, in combination with the coercive and highly politicized character of international judicial processes, has created significant tensions between international and local agency.

Global Solutions to Local Problems

The considerable influence of international actors in the TJ field jeopardizes local ownership of and participation in TJ processes. As argued by Nagy in this volume, TJ as a field of practice and “normative inquiry” has become increasingly institutionalized within the broader structures of global governance over the course of the last decade in particular. True, as a partial corrective to this globalizing force, many practitioners have embraced localized, or “traditional,” forms of TJ. Still, considerable tensions and legitimacy deficits exist in the gaps between international and local agency.

First, the influence of international generalist “expertise,” funds, and emphasis on global models tends to shape TJ agendas in ways that often are to the detriment of domestic actors. International donors and consultants, although well-meaning, wield considerable influence in ways that risk the “crowding-out” of local actors. Second, as pointed out by Vinjamuri, “[s]ecuring international justice, securing peace, and devolving justice to national actors are likely to be incompatible goals, especially in states where institutions are weak and a high degree of instability persists.”
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Hence, decisions to judicially intervene in ongoing conflict are likely to be taken by outsiders and may therefore undermine local ownership of justice initiatives. Third, international interventions are often overly ambitious and their ultimate objectives are rarely explicit. This is partly because there is little agreement on what constitutes success, but also the expectations on what TJ processes can achieve are often inflated.

The Coercive Character of International Justice

There is also the problem of the coercive and highly politicized character of international judicial processes. As the vast literature on “humanitarian intervention” repeatedly points out, politicization and selectivity are inherent in the practice of intervention by powerful states. This can be seen, for example, in the uneven character of international responses to some of the most recent high-profile humanitarian/human rights crisis and conflict situations: Syria (weak condemnation and piecemeal UN sanctions regime); Libya (forceful and immediate ICC/NATO intervention); and Sri Lanka (delayed investigations). Moreover, as recently highlighted in the initial response by the UNSC to the outbreak of civil
war in Libya to refer the situation to the ICC, judicial interventions can also be aimed at replacing diplomacy and attempts at political solutions, hence reinforcing the trend towards judicialization.

Similarly, international judicial interventions are intimately linked to the development of conceptions of “human security” that underwrote practices of interventions in humanitarian crises by Western states following the end of the Cold War. Scholars of “securitization” highlight that the move towards linking human rights with the high politics of international security has a number of problematic implications, including privileging coercive force over political responses to crisis situations. Another problem is related to the potential of international (judicial) interventions to alter power balances and thereby the relative power of the warring parties. Such interventions are of course highly political and, as Vinjamuri points out, “the assumption that justice can be pursued neutrally during conflict is inconsistent with the claim that justice can independently affect the prospects for peace by marginalizing some actors and empowering others.”
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As seen in international judicial interventions in, for example, Libya, Sudan/Darfur, and Uganda, such interventions are not perceived as neutral or driven by legal considerations of selecting situations and cases to investigate in accordance with the Rome Statute. Critics of the ICC also argue that it selectively applies international criminal justice against less powerful states. This criticism is bolstered by the predominantly African focus of investigations initiated thus far by the ICC’s Office of the Prosecutor (OTP).

Transitional Justice in Inhospitable Conditions

The problematic effects of international judicial pressures are exacerbated by domestic institutional fragility. In conflict situations, local capacity to implement accountability strategies is particularly limited. The sheer number of perpetrators in societies afflicted by mass atrocity would overwhelm even a well-functioning judicial system.
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Similarly, the delivery of TJ, particularly when administered in conjunction with peacebuilding programs such as demobilization, is institutionally very complex and burdensome.
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Trial justice, for example, requires robust domestic justice institutions, which in most (post-)conflict societies are absent. In addition, the pursuit of TJ in weakly institutionalized environments is particularly subject to political manipulations.
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As a result, TJ, on its own and without broader institutional and political reforms, is unlikely to assist where it is needed the most. Attempts to implement TJ in inhospitable conditions, including the pursuit of justice initiatives in the absence of any discernible political transition, may mean reaching for the most difficult. TJ as a distinct field of theory and practice emerged in the context of political transition from, primarily, military rule to democratic governments in Latin America. Processes of TJ in Latin America are, however, likely to be quite different from those in countries that are moving from internal armed conflict, or are still engulfed in conflict, in Africa and in other parts of the world. The applicability of TJ findings in the region of Latin America (and in post-Soviet
states) may be limited for a number of reasons including differences in patterns of state formation, colonization and decolonization, civil society activism, legal and judicial traditions, democratization, and socio-economic development. Indeed, for some, “there are grounds to suspect that TJ is best suited to states with relatively strong institutions and a certain minimum level of democracy.”
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This seems to echo the early modernization literature on democratization that viewed only countries that had attained a certain level of socio-economic development as “fit” for democracy. Nonetheless, such tensions are bound to intensify as the attention of international actors is currently undergoing a regional refocus towards the Middle East and the Arab world more broadly.