Transitional Justice and Peacebuilding on the Ground: Victims and Ex-Combatants (Law, Conflict and International Relations) (17 page)

As Humphreys and Weinstein suggest, this is more likely to be the case where ex-combatants participated in abusive armed groups, particularly if they are reintegrating into a local community that suffered at the hands of their armed group.

Integration Versus Coordination

Once it is accepted that DDR and transitional justice should be linked, there is still the question of how that should happen. The IDDRS urges integrated planning between DDR actors and other peacebuilding actors. When the UN piloted integrated DDR in Haiti and Sudan, it went further, pushing for integrated implementation.
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The poor results prompted a group of scholar-practitioners to recommend that “alternative approaches emphasizing coordination may be more effective than full-scale integration.”
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As one DDR donor told me: “If you want to design something that’s manageable, don’t be too holistic.”
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Prominent transitional justice advocates differ over whether there should be integration or coordination. Kimberly Theidon argues that “successful reintegration requires … fusing the processes and goals of DDR programs with transitional justice measures.”
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By contrast, Pablo de Greiff contends that “the more ambitious dimensions of reintegration should be carried out by means of
coordination with other programs
rather than being the responsibility and parts of the DDR program.”
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The IDDRS module on transitional justice adopts the latter approach, emphasizing coordination.
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A different, and arguably more realistic, approach would see the coordination of DDR and transitional justice programs in the short term (when transitional justice programs pose the greatest risk to disarmament and demobilization), but leave longer-term reintegration to transitional justice, development, and other peacebuilding programs.

Sequencing

There are often real tensions between DDR and transitional justice and, more broadly, between security and accountability, in the short term. Whereas many ex-combatants (some of whom may have perpetrated international crimes) want amnesty, many victims want some form of justice or truth-telling. Furthermore, ex-combatants and victims compete for scarce resources from the state and international donors. Here, ex-combatants usually win out: of the 22 countries with DDR programs in 2005, not one had a reparations program for survivors.

Some of these tensions can be mitigated by coordination around sequencing. For the most part, there has been very little coordination to sequence DDR and transitional justice. This is largely because DDR programs usually start before transitional justice programs. The UN Secretary-General’s Report on Peacebuilding stressed that “Getting the timing and sequencing right among priorities requires a delicate balance and difficult trade-offs within the framework of a coherent strategy.”
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It acknowledged that elections and security sector reform “if pursued too early after conflict, can undermine a fragile peace.”
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Similarly, specific transitional justice mechanisms (e.g. trials) could jeopardize peacebuilding if they happen too soon.
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The IDDRS module on transitional justice makes some helpful suggestions about how to facilitate greater sequencing.
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For example, it states that “Assistance offered to excombatants is less likely to foster resentment if reparations for victims are provided at a comparative level and within the same relative time period.”
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Specific Transitional Justice Mechanisms

I now want to briefly look at how six key transitional justice mechanisms—amnesties, trials, truth commissions, local justice, reparations, and vetting—might positively influence the social reintegration of ex-combatants, and thus the larger project of post-conflict peacebuilding.
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These are in the nature of claims or hypotheses that will need to be tested empirically.

Amnesties

The short-term tensions between DDR and transitional justice are most apparent when it comes to amnesties for gross human rights abuses. Peace negotiators and DDR practitioners generally view amnesties as useful bargaining chips for getting potential spoilers to sign on to peace agreements and to disarm and demobilize their forces. By contrast, most human rights and transitional justice advocates argue that amnesties are morally unacceptable and (increasingly) legally impermissible. Since the 1999 Lome Peace Accord in Sierra Leone, the UN has taken a principled stance against amnesties for gross human rights abuses—especially for genocide, crimes against humanity, and war crimes.
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The IDDRS has followed this approach: “while national amnesties may be agreed to, the UN system upholds the principles of international law, and cannot support processes that do not properly deal with serious violations of human rights and humanitarian law.”
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Similarly, the IDDRS module on transitional justice rejects the use of amnesties
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—even though a serious case can be made for amnesties as a peacebuilding tool.
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Prosecutions

There is an understandable tendency to think of DDR and prosecutions as mutually exclusive: after all, many combatants will be less willing to disarm and demobilize if they fear being prosecuted for gross human rights abuses. Yet, the tension between DDR and prosecutions has been overstated. Eric Witte found “no evidence that prosecutions have seriously derailed DDR.”
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This is partly because most combatants or ex-combatants have little to fear in the way of prosecution. In certain contexts, DDR and prosecutions may even share a common aim in removing potential spoilers from the peace process. The clearest example of this is Colombia, where those who demobilize as part of plea bargains receive lighter sentences.
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Prosecutions may also help ex-combatants reintegrate in two ways. First, they may enable victims and communities to individualize guilt by differentiating between those combatants who perpetrated gross human rights abuses and those who did not. Second, prosecutions might reduce victim and community mistrust and resentment of ex-combatants by “providing communities with some assurance that those whom they are asked to admit back into their midst do not include the perpetrators of serious crimes under international law.”
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Truth Commissions

Truth commissions may aid the social reintegration of ex-combatants by giving them a forum where they can apologize to victims and communities, and explain their actions (including coerced participation).
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For example, many ex-militia in Timor Leste sought local hearings (through the truth commission’s Community Reconciliation Process) to reduce their stigma, avoid retribution, and achieve legal
finality—even though most had already self-demobilized and returned to their communities.
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Those hearings provided some measure of shaming and reintegration: “In a number of hearings it was evident the [perpetrators] were ‘lowering themselves’ before their communities, and that the hearing was at one level a public process of shaming, that concluded with the official re-admittance of the [perpetrators] back into the family.”
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Anecdotal evidence suggests that those hearings have helped some low-level ex-combatants reintegrate into their communities.
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In one small study, a number of ex-militia “felt that community members were no longer suspicious of them or called them ‘militia.’”
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Truth commission reports may also aid the political reintegration of ex-combatants. By recognizing the political abuses of previous governments, the Sierra Leone Truth and Reconciliation Commission’s final report arguably helped the political reintegration of the RUF rebel group “by signalling that addressing RUF political grievances was deemed integral to the formation of a more equitable Sierra Leonean political landscape.”
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The final report also recommended new institutions and processes to give more political voice to Sierra Leonean youth, whose marginalization had helped fuel the civil war in the first place.
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Local Justice

“Local justice” is informal, accessible, and participatory dispute resolution, which runs the gamut from cleansing ceremonies in Mozambique and Northern Uganda to state-controlled community courts in Rwanda.
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In numerous post-conflict settings, purification rituals have been used to help reintegrate former fighters back into their communities.
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Kees Kingma flagged early on that “[t]hese rituals have an important impact on acceptance by the community, as well as on the state of mind of the ex-combatants themselves.”
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In addition, local justice processes are being increasingly used in conjunction with other transitional justice mechanisms, such as amnesties (as in Uganda) and truth commissions (as in East Timor and Sierra Leone).

Not surprisingly, the IDDRS, with its emphasis on community-based reintegration, has stated that “[r]eintegration programmes for ex-combatants should … support the establishment of local conflict-resolution mechanisms that can work towards finding equitable and sustainable solutions to potential conflict about access to land and other resources.”
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However, that support for local justice has to be read alongside its injunction that “DDR programmes shall not reconstitute traditional power structures that may have contributed to the outbreak of violent conflict in the first place, but instead shall encourage reconciliation and the inclusion of all stakeholders.”
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The new IDDRS transitional justice module makes the point emphatically: “Before establishing a link with locally based processes, DDR programmes must ensure that they are legitimate and that they respect international human rights standards, including that they do not discriminate, particularly against women, and children.”
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This seems to rule out the use of local justice, given that most of these mechanisms violate international human rights standards.
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Reparations

Reparations programs, where they exist, are largely disconnected from DDR. Pablo de Greiff argued that “Providing benefits to ex-combatants without attending to the claims of victims not only leaves victims at a comparative disadvantage but gives rise to new grievances, which may exacerbate their resistance against returning ex-combatants.”
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Reparations may also provide a (partial) solution to a problem that bedevils DDR programs: the low numbers of female ex-combatants enrolled. Annan and Patel have suggested that “Reparations programmes can provide benefits to women and children associated with armed groups and forces who experienced high levels of victimization, but are averse to participating in a DDR process that may again put them into close proximity with ex-combatants.”
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Vetting and Screening

Many DDR programs offer some ex-combatants the opportunity to be reintegrated into the (supposedly reformed) security sector. Vetting those ex-combatants for human rights abuses ensures that they are not employed in the public sector. The IDDRS’s transitional justice module proposes that DDR programs “consider” screening ex-combatants (essentially, a preliminary vetting) for gross human rights abuses—even though it recognizes that, in some contexts, “it will deter combatants from entering the DDR programme.”
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It further recommends that, “at a minimum,” ex-combatants credibly alleged to have engaged in gross human rights abuses should not receive DDR benefits.
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In practice, DDR programs have been very reluctant to engage in any human rights screening. The initial World Bank strategy recommended screening ex-combatants in the Democratic Republic of Congo for war crimes, but the UN peacekeeping mission never attempted that.
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The Rwandan agency in charge of DDR also decided not to screen ex-combatants for genocide or other crimes.
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In addition, there would be serious due process concerns about screening ex-combatants based on allegations.

Conclusion

The IDDRS created unreasonably high expectations of what DDR can realistically accomplish. It is still unclear whether DDR programs actually have any positive impact on the reintegration of ex-combatants. Following Pugel, then, DDR practitioners should take a minimalist approach, focusing on short-term security and ex-combatants, while leaving longer-term reintegration mostly to transitional justice and development actors who are better equipped to deal with other war-affected groups and communities.

This chapter has described how transitional justice might aid peacebuilding by easing the social reintegration of former combatants. Ex-combatants may reintegrate more successfully if given public spaces, such as those provided by truth
commissions and local justice processes, where they can apologize and perhaps undergo purification rituals.
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Such actions may reduce the fears that ex-combatants and receiving communities often have of one another. Transitional justice mechanisms, particularly reparations, may help blunt the resentment and envy that victims and communities sometimes feel toward returning ex-combatants who receive reinsertion and reintegration assistance. They also may assure victims and receiving communities that perpetrators of international crimes will pay some price for their actions, whether through being punished or publicly shamed or forced to make reparation. Finally, transitional justice mechanisms may help individualize responsibility, so that victims and communities do not perceive all ex-combatants as having committed international crimes.
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Overall, then, these mechanisms may help reduce reprisal, stigmatization, or discrimination against ex-combatants among victims and receiving communities—something that will benefit their social reintegration.