Transitional Justice and Peacebuilding on the Ground: Victims and Ex-Combatants (Law, Conflict and International Relations) (20 page)

Transitional justice practitioners and researchers have widely acknowledged this flaw, and the recent turn toward localized, “traditional” forms of justice is represented as an important corrective.
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As noted by the UN Secretary-General in his 2004 report on transitional justice, “due regard must be given to indigenous and informal traditions for administering justice or settling disputes … Where these are ignored or overridden, the result can be the exclusion of large sectors of society from accessible justice.”
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Traditional justice, which has been pursued after conflict in places such as Mozambique, Rwanda, Sierra Leone, East Timor, Burundi, and Uganda, represents a pluralization of transitional justice. “Pluralization” as I intend it has two related meanings. First, it represents a diversification and localization that moves away from internationally centralized modes of justice. Second, where traditional mechanisms operate alongside formal institutions, whether national or international, they are in a situation of legal pluralism, which may be defined as “two or more legal orders within the same social field.”
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This chapter applies insights from the study of legal pluralism to identify and analyze the socio-legal and political forces at work in the turn to traditional justice. Using the Rwandan and Ugandan experiences for illustration, the chapter seeks to theorize trends within transitional justice in order to instigate further research. In particular, I hypothesize that, just as customary law was “made” through its interaction with colonialism, so too is traditional justice now “made” through its interaction with international transitional justice
as mediated by the state
. My concern is less about the “invention” of tradition, for no tradition is static, than about the ways in which traditional justice might help to consolidate state power at the expense of truth, justice, reconciliation, and durable peace.

Three main concerns animate the chapter. First, insofar as a central concern about the legality of traditional mechanisms exists, I argue that we cannot afford to isolate law from politics.
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Second, efforts to pluralize transitional justice may actually result in it being doubly subject to centralizing forces, that is, both from international actors and from the state. This undermines the ostensible goal of creating a kind of justice that resonates with individuals and communities. Third, because traditional mechanisms should be pursued “in conformity with both international standards and local tradition,” in practice this means that traditional practices may be codified and made more like the formal criminal proceedings they were intended to replace.
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Thus there may be a risk of “one-sizing” traditional justice.

Through these lines of argument, I aim to strengthen the linkages between transitional justice and peacebuilding by expanding the typical transitional justice preoccupation with human rights concerns and legal procedures to include thinking more explicitly about relations of power. It is crucial to locate traditional mechanisms within their broader (global, national, local) socio-political environments and to ask whether the use of traditional justice will, in fact, help move a society toward positive peace, understood here as the absence of social injustice and structural violence.
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I do not mean that traditional mechanisms themselves should necessarily address some of the more affirmative aspects of social justice associated with positive peace. Rather, my concern lies with the ways in which transitional justice might ignore, reproduce, or aggravate conditions of structural violence.
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As I will discuss below, there is evidence to suggest that Rwanda’s
gacaca
courts exacerbate conditions of structural violence by helping the state to prescribe reconciliation in coercive and unpopular ways. While I do not make as strong a claim with respect to Uganda’s proposed use of
mato oput
and other traditional practices, there are nevertheless similar and worrying dynamics in the nexus of centralizing and pluralizing forces there, which I map below. Before turning to the Rwandan and Ugandan examples, I first elaborate upon the chapter’s theoretical framework in the next section. The study of legal pluralism remains a relatively untapped resource in transitional justice. While the peacebuilding literature does engage legal pluralism to a greater degree, it tends to focus on constitution-making and security sector reform within a legally plural municipal system, rather than looking at specific transitional justice measures under globalized legal pluralism.

Theoretical Framework: Insights from the Study of Legal Pluralism

The study of legal pluralism originated in anthropological efforts to understand social ordering outside of “lawyers’ law,” looking in particular at the role of customary or religious law under colonialism. One of the key arguments forged within this “classic” legal pluralism was that traditional or customary law was not a static or self-contained thing of the past but, rather, shaped through complex interactions with administrative law under colonial indirect rule.
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Customary law was “made, not found.”
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Following the shift from colonialism to globalization, the “new” legal pluralism has grown to consider the multiplicity of state, infra-state, transnational, and global legal orders. Whether analyzing classic or new constellations, legal pluralists rail against positivist conceptions of law as a closed, autonomous system, seeing it instead as embedded within relations of unequal power where there is both domination and resistance. Law is not simply a set of rules, but constitutive of and constituted by social, economic, and political relations.

Transitional justice represents an archetype of the “new” legal pluralism insofar as it takes place through the interpenetration of a variety of legal and normative orders across different socio-legal fields at the international, transnational, state, and community levels. Moreover, the post-conflict use of traditional mechanisms is reminiscent of studies in “classic” legal pluralism, which focuses on the interactions between indigenous and Western law. These two forms of legal pluralism are intertwined and result in a complex array of complementary and conflicting transitional justice processes, norms, goals, and outcomes. Paradoxically, however, notwithstanding its pluralization, transitional justice is also subject to centralizing forces that render it internally coherent and increasingly standardized.

My use of the word “centralizing” plays upon earlier debates in legal pluralism, in which scholars such as John Griffiths defined it in contradistinction to “legal centralism.”
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Legal centralism (if this ever really existed as a social scientific position) holds that law emanates only from the state and is administered by an exclusive set of institutions.
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Legal pluralists, in contrast, emphasize the ways in which state law is adapted, ignored, or resisted, and they point to non-state forces of social regulation. One need not deny the importance of the state in making law to be a legal pluralist. Indeed, the use of traditional justice in post-genocide Rwanda (and potentially also in Uganda) involves what is sometimes called “state legal pluralism,” where customary law is incorporated into state law, resulting in the coincidence of two or more bodies of (sometimes inconsistent) legal norms.
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Rather, for my purposes, the point to draw is that law is heterogeneous and subject to “the political mobilization of competing social forces”
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across interdependent webs of “semi-autonomous social fields.”
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In transitional justice processes, centralization occurs not at the level of the state but at an international level. Since there is no world state, “centralization” in my sense refers to the standardization of transitional justice through “an international web of individuals and institutions whose internal coherence is held
together by common concepts, practical aims, and distinctive claims for legitimacy.”
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Admittedly, this is a rather nebulous approach to centralization, especially since I have already stated that transitional justice is pluralistic in nature (and international coordination is, admittedly, fairly unwieldy). However, I posit that transitional justice is increasingly being driven by an internationally standardized set of normative assumptions and institutional responses. This has developed through policy documents such as the UN Secretary-General’s
Report on the Rule of Law and Transitional Justice in Conflict and Post-conflict Societies
and manuals from the Office of the High Commissioner for Human Rights on truth commissions, vetting, rule of law reform, prosecution, and reparation;
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the involvement of expert consultants and international transitional justice NGOs in different countries; standardized database packages for managing information; the creation of the
ad hoc
tribunals and later the International Criminal Court; and the development of a “right to truth” and a “right to reparation” under customary international law.
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The production of transitional justice policies, norms, and institutions from “on high,” so to speak, gives rise to the common complaint that transitional justice is “externalized” from the lives of ordinary people.
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Consequently, transitional justice can neither contribute to the peacebuilding goal of “moving a given population from a condition of extreme vulnerability and dependency to one of self-sufficiency and well-being,”
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nor assist in rebuilding fractured relationships from the bottom up. In part, this is due to the ways in which the centralization of transitional justice is driven by legalistic approaches that are technocratic and prone to replication.
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The centrality of law in “dealing with the past” is not unsurprising, of course. Law speaks to qualities such as rationality, certainty, objectivity, universality, and uniformity that are highly prized in times of profound social rupture. However, as McEvoy points out, “because transitions from conflict shine a harsh light on the contingent and political nature of legality … legal formalism becomes the default position for many lawyers working in this field.”
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On this view, law is “there,” to be codified and applied; it is a closed system of knowledge and stands apart from politics, social structures, cultural meanings and so forth. This attitude flies in the face of legal pluralists’ main contention that law is not a closed system but subject to the complex interaction of various socio-political forces.

The consequent complaint regarding formal legal approaches is that transitional justice and peacebuilding more broadly fail sufficiently to grasp or respond to the lived experiences of atrocity and conflict. Traditional mechanisms, in contrast, offer ordinary persons greater involvement in and access to transitional justice than that provided by remote, formal institutions or technocratic reforms. Anchored in local rituals and indigenous practices, traditional mechanisms promise deeper cultural legitimacy and local ownership. They provide alternate paths to justice, including restorative justice, in broadly participatory forums that aim to reintegrate combatants/perpetrators, victims, and communities. Traditional justice represents a pluralizing move away from “one-size-fits-all” solutions and one that is often explicitly juxtaposed against the legal centralism of “Western” justice.

Yet, traditional justice is not typically designed to deal with mass atrocity. Nor is it consistent with international human rights standards when harsh corporal punishment or the “restitution” of women as brides are involved. Moreover, “tradition” itself may be a victim of conflict through the disruption of community life, the artificial environment of a refugee camp, the dislocation of families, or the erosion of social capital.
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Thus, not surprisingly, custom will be reinvented or adapted to post-conflict settings. Hence, it may be more fitting to speak of “tradition-inspired” justice. In the following two examples of the experiences of Rwanda and Uganda, I ask how the adaptation and “
conforming
” of tradition to international standards are taken up in the push and pull between the centralization and pluralization of transitional justice.
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How does the discursive and practical interaction of international, national, and local socio-legal fields shape “tradition” and what consequences might this have for peace and justice?
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Post-Genocide Justice in Rwanda: The
Gacaca
Courts

In the early aftermath of the genocide, the International Criminal Tribunal for Rwanda (ICTR) was established by the United Nations over the protests of the Rwandan government, which used its seat on the Security Council to vote against it. Although Kigali had originally asked for international assistance, it was unhappy with: the tribunal’s jurisdictional mandate; sharing the Prosecutor’s office and appeals chamber with the International Criminal Tribunal for the Former Yugoslavia (ICTY); locating the tribunal in Tanzania rather than in Rwanda; and not including the death penalty for leaders of the genocide. In many respects, then, the ICTR is an externalized form of justice, and its remoteness to peasant Rwandans is fairly notorious.
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Relations between the Rwandan Patriotic Front (RPF) government and the ICTR have been strained at times, with the RPF refusing on occasion to cooperate and managing to block prosecution of war crimes alleged to have been committed by its military wing during the war.

The ICTR was only ever intended to prosecute a handful of cases; the bulk of trials were to be domestic. This plurality of post-genocide legal orders is hierarchical, with the Tribunal exercising primacy over the jurisdiction of national courts.
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Through prosecutorial discretion the primacy rule may function as a complementary distribution of labor to various national jurisdictions, particularly now that the ICTR has a “completion strategy.”
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But it also acts as a centralizing mechanism. Drumbl argues that the overall effect of primacy “is to induce national courts that seek jurisdiction to conform to a variety of modalities that mimic those found in international criminal law regarding sanction (i.e. no death penalty) and procedure (i.e. a fair trial).”
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Most explicitly in the case of Rwanda, which until recently had the death penalty, this resulted in its vulnerability to being denied jurisdiction over top-ranking perpetrators.
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