Transitional Justice and Peacebuilding on the Ground: Victims and Ex-Combatants (Law, Conflict and International Relations) (15 page)
Authors: Unknown
13
United Nations Secretary-General,
The Rule of Law and Transitional Justice in Conflict and Post-conflict Societies
, UN Doc. S/2004/616 (3 August 2004).
14
Rome Statute, preamble, available at <
http://untreaty.un.org/cod/icc/statute/99_corr/preamble.htm
>, accessed 12 October 2011.
15
See, further, Chandra Lekha Sriram’s contribution to this volume.
16
For an excellent overview, see Richard J. Ponzio,
Democratic Peacebuilding: Aiding Afghanistan and Other Fragile States
(Oxford: Oxford University Press, 2011).
17
Gerhard Thallinger, “The UN Peacebuilding Commission and Transitional Justice,”
German Law Journal
, Part I/II, 8 (2007), pp. 681–710, available at <
www.germanlawjournal.com/index.php?pageID=11&artID=843
>, accessed 12 October 2011. The literature on state-building is extensive; see, for example, Richard Caplan,
International Governance of War-Torn Territories: Rule and Reconstruction
(Oxford: Oxford University Press, 2005); Simon Chesterman,
You, The People: The United Nations, Transitional Administration, and State-Building
(Oxford: Oxford University Press, 2004); and Dominik Zaum,
The Sovereignty Paradox: The Norms and Politics of International Statebuilding
(Oxford: Oxford University Press, 2007).
18
M. Cherif Bassiouni, “Searching for Peace and Achieving Justice: The Need for Accountability,”
Law and Contemporary Problems
, vol. 59 (1996), pp. 9–28.
19
United Nations Secretary-General,
The Rule of Law and Transitional Justice
, op. cit., para. 21.
20
On the limits of transitional justice vis-à-vis peacebuilding, see Wendy Lambourne, “Transitional Justice and Peacebuilding after Mass Violence,”
International Journal of Transitional Justice
, vol. 3 (2009), pp. 28–48.
21
Diane Orentlicher, “Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime,”
Yale Law Journal
, vol. 100 (1991), pp. 2537–615. Orentlicher has subsequently partly revised her position by emphasizing the
scope
of the duty to prosecute. Diane Orentlicher, “‘Settling Accounts’ Revisited: Reconciling Global Norms with Local Agency,”
International Journal of Transitional Justice
, vol. 1 (2007), pp. 10–22. See also Carlos Nino’s reply to Orentlicher: Carlos Nino, “The Duty to Punish Past Abuses of Human Rights Put into Context: The Case of Argentina,”
Yale Law Journal
, vol. 100 (1991), pp. 2619–40.
22
Leslie Vinjamuri, “Deterrence, Democracy, and the Pursuit of International Justice,”
Ethics and International Affairs
, vol. 24 (2010), pp. 191–211.
23
Jack Snyder and Leslie Vinjamuri, “Trials and Errors: Principle and Pragmatism in Strategies of International Justice,”
International Security
, vol. 28 (2003/04), pp. 5–44.
24
For an overview, see Oskar N. T. Thoms
et al
., “State-level Effects of Transitional Justice: What Do We Know?”
International Journal of Transitional Justice
, vol. (2010), pp. 1–26.
25
See: Tove Grete Lie, Helga Malmin Binningsbo, and Scott Gates, “Post-Conflict Justice and Sustainable Peace,”
Post-Conflict Transition Working Paper
, World Bank Policy Research Working Paper (April 2007); Eric Brahm, “Uncovering the Truth: Examining Truth Commission Success and Impact,”
International Studies Perspectives
, vol. 8 (2007), pp. 16–35; Oskar N. T. Thoms, James Ron, and Roland Paris, “The Effects of Transitional Justice Mechanisms: A Summary of Empirical Research Findings and Implications for Analysts and Practitioners,”
Centre for International Policy Studies Working Paper
, April 2008.
26
See, however, James Meernik, “Justice or Peace: How the International Criminal Tribunal Affects Societal Peace in Bosnia,”
Journal of Peace Research
, vol. 42 (2005), pp. 271–90.
27
Payam Akhavan, “Are International Criminal Tribunals a Disincentive to Peace? Reconciling Judicial Romanticism with Political Realism,”
Human Rights Quarterly
, vol. 31 (2009), pp. 624–54.
28
Thoms
et al
., “State-level Effects,” op. cit., p. 5.
29
Nicola Palmer, Phil Clark and Danielle Granville (eds.),
Critical Perspectives in Transitional Justice
(Antwerp: Intersentia, 2011).
30
Vinjamuri, “Deterrence,” op. cit., p. 202.
31
Vinjamuri, “Deterrence,” op. cit., p. 203.
32
In Liberia, as pointed out by Raddatz in her contribution to this volume, the capacity of the domestic legal system to try alleged perpetrators remains constrained.
33
As highlighted by García-Godos in this volume.
34
See, for example, Brown’s chapter in this volume.
35
Thoms
et al
., “State-level Effects,” op. cit., p. 25.
36
Clark and Palmer, “Challenging,” op. cit.
37
See, further, Roberto Gargarella, “Human Rights, International Courts and Deliberative Democracy,” in Palmer, Clark and Granville (eds.),
Critical Perspectives
, op. cit.
38
Ralph Henham, “International Sentencing as a Force for Achieving Peace through Justice,” in Oxford Transitional Justice Research (OTJR) (eds),
Critical Perspectives in Transitional Justice
(Antwerp: Intersentia, 2011).
39
Clark and Palmer, “Challenging,” op. cit.
40
See, for example, Jo-Marie Burt, “Accountability after Atrocity in Peru: The Trial of Former President Alberto Fujimori in Comparative Perspective,” in Palmer, Clark and Granville (eds.),
Critical Perspectives
, op. cit. See, more generally, Kathryn Sikkink,
The Justice Cascade: How Human Rights Prosecutions are Changing World Politics
(New York: W.W. Norton & Company, 2011).
41
See, generally, Juan Méndez, “Accountability for Past Abuses,”
Human Rights Quarterly
, vol. 19 (1997), pp. 255–82.
42
Moreno Ocampo, “Transitional Justice in Ongoing Conflicts,” op. cit. p. 8.
43
Ruti G. Teitel,
Transitional Justice
(Oxford: Oxford University Press, 2000).
44
Take the example of retributive and restorative forms of justice. Carolyn Hoyle argues that “[w]hile there is by no means consensus on the compatibility of restorative and retributive justice, it is clear that restorative justice (on the whole) does not necessarily reject all punitive measures associated with retributive justice and
vice versa
, and that there is more common ground between the two forms of justice than is often recognised.” Carolyn Hoyle, “Can International Justice Be Restorative Justice? The role of Reparations,” in Palmer, Clark and Granville (eds.),
Critical Perspectives
, op. cit.
45
See, for example, Snyder and Vinjamuri, “Trials and Errors,” op. cit.
46
As Annan argued, “sovereignty implies responsibility, not just power.” KofiAnnan, “Intervention,” Ditchley Foundation Lecture XXXV, 1998, p. 2.
47
Jennifer Welsh, “Implementing ‘The Responsibility to Protect’: Where Expectations Meet Reality,”
Ethics and International Affairs
, vol. 24 (2010).
48
Martha J. Finnemore and Stephen Toope, “Alternatives to ‘Legalization’: Richer Views of Law and Politics,”
International Organization
, vol. 55 (2001), pp. 744–47.
49
Tricia D. Olsen, Leigh A. Payne, and Andrew G. Reiter,
Transitional Justice in Balance: Comparing Processes, Weighing Efficacy
(Washington: United States Institute of Peace, 2010).
50
Article 53(1)(c) of the Rome Statute expressly recognizes that a prosecutor must consider whether “taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice.”
51
On this point, see further, Antoine Buyse, “Hybrid Human Rights Mechanisms in Post-conflict Transitions: The Experience of the Bosnian Human Rights Chamber” in Palmer, Clark and Granville (eds.)
Critical Perspectives
, op. cit.
52
Snyder and Vinjamuri, “Trials and Errors,” op. cit.
53
Seils and Wierda, “The International Criminal Court and Conflict Mediation,” op. cit.
4
Just Peace? Integrating DDR and Transitional Justice
Lars Waldorf
1
Introduction
Since 1989, there has been a remarkable proliferation of disarmament, demobilization, and reintegration (DDR) programs and transitional justice mechanisms in post-conflict states.
2
Yet, even as both became common features of “liberal peacebuilding,”
3
they continued operating along parallel tracks. This was hardly surprising given their differing objectives, beneficiaries, and constituencies. After all, DDR focuses on security and ex-combatants, while transitional justice emphasizes accountability and victims. In other words, DDR and transitional justice were seen to inhabit different sides of the “peace-versus-justice” debate.
4
That began changing with the UN Secretary-General’s 2004 report on transitional justice. There, KofiAnnan sought to shift the debate from peace
versus
justice to peace
and
justice:
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.
5
Annan committed the UN to promote transitional justice and the rule of law throughout its peacebuilding programs.
6
In 2006, the UN adopted an “integrated” approach to DDR that links security, human rights, and development. The resulting Integrated Disarmament, Demobilization and Reintegration Standards (IDDRS) recently added a module on the linkages between DDR and transitional justice. The module aims to promote “more systematic and improved coordination between DDR and transitional justice processes, so as to best support the successful transition from conflict to sustainable peace.”
7
This chapter explores how transitional justice may contribute to DDR’s “ultimate aim”: to “prevent a return to violent conflict, i.e. to make peace irreversible.”
8
It begins with an overview of DDR. The chapter then looks at reintegration, as that is where transitional justice may be able to make a contribution. It next examines how specific transitional justice mechanisms—amnesties, trials, truth commissions, local justice, reparations, and vetting—may benefit DDR. Finally, it concludes by arguing that DDR would be better off leaving reintegration to transitional justice and other peacebuilding programs.
Disarmament, Demobilization, and Reintegration (DDR)
Overview
DDR has become a regular feature of negotiated peace agreements and peacekeeping missions since its first formal appearance in 1989.
9
DDR has been part of UN peacekeeping missions in countries such as Burundi, Cote d’Ivoire, Democratic Republic of Congo, Haiti, Liberia, and Sudan. The UN has also been involved with DDR even where it does not have a peacekeeping presence, such as Aceh (Indonesia), Afghanistan, Central African Republic, Somalia, and Uganda. The UN concluded that the “[d]emobilization of combatants is the single most important factor determining the success of peace operations.”
10
In 2005, over 1.2 million ex-combatants (and their dependents) participated in DDR programs in 22 countries at a total cost of US $1.9 billion.
11
DDR is designed to transform combatants into civilians and to ensure that they do not take up arms again (whether as combatants or bandits).
12
It has three constituent parts—disarmament, demobilization, and reintegration—which need not occur in any particular sequence.
13
Disarmament involves the collection, registration, storage, and often destruction of small arms and light weapons. It is “a highly symbolic act that signifies the ending of an individual’s active role as a combatant.”
14
Demobilization is more complicated as it encompasses both physical and psychological processes of transforming combatants into civilians.
15
It usually consists of two stages: (1) processing combatants in cantonment sites or temporary centers; and (2) providing a support package, commonly called reinsertion, which can last for up to a year.
16
Reintegration is the long-term process whereby ex-combatants become reintegrated into civilian society.
17
During the disarmament and demobilization phases, combatants are screened to make sure that they are eligible for DDR and for program assistance.
18
While the eligibility criteria are usually laid out in peace accords or national legislation, DDR programs still face difficult choices when it comes to defining and identifying
bona fide
combatants, especially in the context of civil wars, where many combatants are irregulars, part-time, or coerced.
19
A program that is underinclusive risks instability by leaving behind a reserve pool of armed combatants, while an overinclusive program may be seen as unfair and corrupt.
Women and children pose particular challenges for DDR.
20
Early programs often restricted eligibility to those with ownership of, or expertise in, weapons.
21
Yet, many women and children who accompany fighting forces (and who provide support as porters, cooks, messengers, “war wives,” etc.) are unarmed. Even those women who are armed combatants often have their weapons taken away and given to male non-combatants at the start of DDR processes “for personal financial or political gain.”
22