Transitional Justice and Peacebuilding on the Ground: Victims and Ex-Combatants (Law, Conflict and International Relations) (14 page)

Third, TJ strategies must be clearer on objectives. What objectives do and should TJ mechanisms accomplish and for whom? In terms of TJ policies, there are some hard questions that need to be addressed: what is it for, what social and political functions should the particular approach adopted fulfill, and what actors are—and should be—the beneficiaries? Does the specific mechanism actually
deliver what it is set out to deliver; for example, does it bring the citizenry together (reconciliation) or in fact divide or further polarize the population between the beneficiaries and supporters of the
ancien régime
and its victims? Do trials not only combat impunity and establish accountability but also satisfy that powerful human instinct—revenge? Moreover, what are the institutional implications of court prosecutions for a judiciary that may already be under considerable institutional strain and political pressure? That is, do the policies on TJ strengthen or debilitate state institutions mandated to develop and implement these policies? A wide variety of mechanisms are now included in the TJ “toolkit”—investigations to establish the truth and identify perpetrators, reparations programs for the victims of human rights violations (financial and symbolical, in terms of memory sites), institutional measures to establish mechanisms to prevent recurrence of violations, and of course prosecutions and trials. However, the last few decades of accumulated TJ experience show that it is often not a simple matter of choosing between different TJ mechanisms.

Fourth, when engaging with ongoing conflicts, TJ advocates might consider a stronger focus on rights-abusing behavior in conflict rather than on the broader political dynamics of the conflict itself. Violent conflict is of course part of human history and is likely to remain so for the foreseeable future. Instead, advocates are better served by focusing on certain types of behavior in armed conflict—i.e. atrocity crimes—and to aim to hold perpetrators accountable for having committed grave crimes. That is, more focus should be given to the actual conduct of armed conflict rather than to the broader conflict per se. Too often this distinction is lost in both scholarly and policy debates. This is ultimately a principled (and modest) position that is not easily reduced to impact assessments. True, international criminal law targets the type of behavior (war crimes, crimes against humanity, genocide) that is the result of planning and systematic execution. Hence, it might not be easy to separate individual crimes from the broader conflict dynamics. Yet, making the case for accountability for perpetrators of grave human rights crimes does not have to lead advocates to exaggerated claims that TJ can end or prevent armed conflicts. It is therefore important to focus on abusive behavior in conflict, rather than merely participation in the conflict itself.

Finally, there is a strong normative case that some form of accountability ought to be part of efforts to end ongoing conflict and to build peace. Many TJ advocates argue that peace is not sustainable without some form of accountability. Although there is a lack of compelling evidence to support this claim, the key point to note here, however, is that accountability measures can take different forms. Article 53 of the Rome Statute, for example, highlights the question of whether prosecution is the only appropriate response to international crimes, or whether other mechanisms (such as amnesties and truth commissions) are acceptable alternatives. Non-retributive TJ mechanisms such as truth commissions and other alternative mechanisms also have potential accountability effects. Accountability measures may indeed complicate efforts to reach an end of armed conflict. But without any type of accountability measures as part of a peace settlement,
serious doubts are likely to be cast on the character of the “peace” obtained. In particular, there is a need to expand the focus beyond individual criminal accountability. For example, the relative advantages of human rights mechanisms over criminal justice mechanisms in the context of post-conflict societies include: locating victims at the center; a demonstrated capacity to deal with a larger caseload; and a focus on state accountability, rather than individual accountability. From this perspective, redress goes beyond the individual case and highlights the needs of broader institutional and structural reforms.
⁵¹

Amnesties, for instance, when appropriately designed, can constitute a legitimate form of accountability. It is generally recognized that international law obligates countries to prosecute genocide, crimes against humanity, and war crimes. Developments in international criminal law, in particular, have limited the ability of negotiators to trade off justice for a peace deal (e.g. in the form of blanket amnesties and explicit impunity deals). But, international law and norms also potentially provide common discursive grounds for the formulation of conflict resolution policies and appropriate TJ mechanisms. International law provides norms to enable the formulation of amnesty policies that could assist in efforts to end conflict while staying within its strictures: for example, with regards to certain types of conditional amnesties. The accumulated result of several decades of TJ practice is a broad set of duties of states, rights of victims and families, and obligations to provide reparations that limit the discretion of governments and mediators. Accountability constitutes therefore a key component of any efforts to achieve peace and eventual reconciliation and raises the possibility to promote accountability by other means than criminal prosecutions, such as truth commissions, lustration, reparations, etc. For Snyder and Vinjamuri, for example, properly designed and enforced amnesties have a better track record than trials and truth commissions of ending civil wars and encouraging human rights, democracy, and the rule of law (at least as measured by Freedom House and Polity IV). According to their study, trials only contribute to the ending of abuses when spoilers are weak and where domestic justice institutions are robust.
⁵²

Yet, certain measures are neither legitimate nor appropriate. This raises the question of what criteria should be used to evaluate legitimacy. At the minimum, accountability measures should be sensitive to local contexts and must be driven by and respond to local demands and needs. Therefore, to inform our understanding of what is possible, and even desirable, in societies engulfed in conflict it remains imperative to adequately and modestly recognize local political and historical particularities before using any general “lessons” to advance specific policy recommendations. An emphasis on local needs does not, however, exclude international efforts per se. On the contrary, this may demand such efforts in order to support local attempts to push accountability against entrenched interests. As argued by Seils and Wierda:

However, to really bring conflict to an end, root causes need to be addressed. This is beyond the will and capacity of outsiders and a very long-term process for which there are no quick policy fixes.

Conclusion

The normative expansion of the field of TJ is particularly evident in practices of judicial intervention in situations of ongoing conflict. The combined effect of an increasingly intrusive international legal architecture, the rise of victims’ movements and their NGO support networks worldwide, and the intractability of contemporary armed conflict, has moved international judicial proceedings forward, with interventions taking place not after, but during, ongoing conflict. International judicial interventions are also spearheaded by practical constraints posed by the ICC’s temporal limitation in investigating cases prior to July 2002. As a result, TJ has become an integral part of the political and legal context in which conflict resolution and peacebuilding strategies are formulated and implemented.

This chapter has highlighted a number of particularly pressing challenges that have become increasingly apparent in the cases of international judicial interventions in ongoing conflict to date, including: the dearth of robust empirical evidence to support the belief held by many advocates of judicial interventions that the tool of indictments and the threat of prosecution can alter the prospects for achieving peace; the risks of undermining local accountability processes inherent in international interventions, particularly in situations characterized by ongoing conflict and institutional fragility; and the privileged status of retributive forms of justice and the judicialization of TJ strategies at the expense of other potentially complementary strategies.

These challenges notwithstanding, the TJ field is undoubtedly continually evolving and the practice of judicial intervention in ongoing conflict is fairly recent. It may therefore be an opportune juncture to reflect on what prudent, incremental, and politically attuned strategies of TJ engagement with ongoing conflict may look like. This chapter has sought to outline some of the key dimensions that such an engagement might need to consider. Yet, whatever the merits of this approach to the complex issues that shape the pursuit of accountability strategies during ongoing conflict may be, the complexity inherent in the field of TJ means that consensus regarding foundational issues is unlikely and probably undesirable.

Notes

The author is grateful to Olga Martin-Ortega for helpful comments on earlier drafts and for coaxing the chapter from me. Chandra Lekha Sriram, Caroline Holmqvist-Jonsäter, and Thomas Pegram offered very constructive comments on a previous draft.
The participants at the authors’ workshop at the School of Oriental and African Studies, University of London, provided the ideal intellectual environment for the discussion of many of the themes covered in this chapter. The author has also greatly benefitted from the discussions over the years with members of Oxford Transitional Justice Research (OTJR), particularly Phil Clark and Nicola Palmer, and the co-chairs of the London Transitional Justice Network, Chandra Lekha Sriram, Iavor Rangelov, and Leslie Vinjamuri. The usual caveats apply.

1
 For analysis of justice trends, see Leslie Vinjamuri and Aaron P. Boesenecker, “Accountability and Peace Agreements: Mapping Trends from 1980 to 2006,
Centre for Humanitarian Dialogue Report
, September 2007.

2
 When it comes to the scope of the ICC’s prosecutions, Moreno Ocampo argues: “The ICC’s mandate to select the most serious crimes committed after July 1, 2002, requires that we engage in judicial proceedings in relation to conflicts even before they have ended. Working in these circumstances can mean conducting investigations in situations where physical access is sometimes impossible or where there is a total collapse of functioning institutions. My Office has to pursue its justice mandate when there are negotiations for peace with the worst perpetrators or when the allegations are against the members of the government.” Luis Moreno Ocampo, “Transitional Justice in Ongoing Conflicts,”
International Journal of Transitional Justice
, vol. 1 (2007), p. 8.

3
 On the role of private economic interest in such wars, see further: Kal Holsti,
The State, War, and the State of War
(Cambridge: Cambridge University Press, 1996), and Mary Kaldor,
New and Old Wars: Organized Violence in a Global Era
(Cambridge: Polity Press, 2002).

4
 With regard to civilian casualties in contemporary armed conflict, figures in the range of 80–90 percent of civilian war victims are frequently cited. For a nuanced discussion of these figures and the inherent difficulties assessing civilian war casualties, see Adam Roberts, “Lives and Statistics: Are 90% of War Victims Civilians?”
Survival: Global Politics and Strategy
, vol. 52 (2010), pp. 115–36.

5
 For Freedman: “the prototypical conflict now is a function of the weak state. States are weak because of the fragile nature of the civil society upon which they have been built, their undeveloped institutional structures, which are often unable to contain and channel political tensions, and their problems of poverty and economic adjustment. These weaknesses can lead to breakdowns of law and order, to secessionist movements, to outright civil war.” Lawrence Freedman,
War
(Oxford: Oxford University Press, 1994), p. 359.

6
 For an opposing perspective and for the likelihood of inter-state war, see John J. Mearsheimer, “The Gathering Storm: China’s Challenge to US Power in Asia,”
The Chinese Journal of International Politics
, vol. 3 (2010), pp. 381–96.

7
 Martin Shaw,
War and Genocide
(Cambridge: Polity Press, 2003).

8
 For an excellent analysis of post-Cold War narratives of conflict from the perspectives of primarily Anglo-American theorists, see Caroline Holmqvist-Jonsäter,
Policing Wars: A Twenty-First Century Discourse on War
(PhD dissertation, King’s College London, 2010),
Chapter 1
.

9
 Some studies show, for example, that about half of all countries that emerge from war lapse back into violence within five years. Paul Collier
et al
.,
Breaking the Conflict Trap: Civil War and Development Policy
(Washington: World Bank, 2003).

10
 Paige Arthur, “How ‘Transitions’ Reshaped Human Rights: A Conceptual History of Transitional Justice,”
Human Rights Quarterly
, vol. 31 (2009), pp. 321–67. On TJ as a form of global governance see, further, Rosemary Nagy’s chapter in this volume.

11
 Bruce Broomhall,
International Justice and the International Criminal Court: Between Sovereignty and the Rule of Law
(Oxford: Oxford University Press, 2004).

12
 Paul Seils and Marieke Wierda, “The International Criminal Court and Conflict Mediation,”
International Center for Transitional Justice Occasional Paper Series
, June 2005.