Transitional Justice and Peacebuilding on the Ground: Victims and Ex-Combatants (Law, Conflict and International Relations) (3 page)

Thus, while transitional justice processes continue to pose challenges to peacebuilding, and there is as yet insufficient empirical evidence to demonstrate that it can play a positive role in peacebuilding, further research is critical to learn whether, and if so how, this might be. This is the case, not least because practitioners operate with the belief or hope that rule of law and transitional justice efforts do support peacebuilding through statebuilding, enhancing the legitimacy of key actors and institutions.
¹⁸
The issue is thus not
whether
accountability is possible in processes of peacemaking and peacebuilding, but whether and, if so,
how
greater integration between the two might be achieved. In short, we ask: What are the necessary conditions and the major obstacles to coordination between accountability and peacebuilding processes, or even to the integration of accountability into peacebuilding processes? In this book, researchers investigate ways in which victim-centered approaches to transitional justice interact with peacebuilding, and specifically with DDR processes that seek to ensure the reincorporation into society of former combatants, many of whom may also have perpetrated serious human rights abuses. In order to understand the interplay between these two aspects of transitional justice and peacebuilding, we turn to victim-centered justice and DDR in turn.

Victim-Centered Justice

Developments in transitional justice have shown that justice is not only about retribution and perpetrators, but also about truth, reparations, the victims of past abuse, and the concerns of affected communities and the wider society. In the past two decades, the needs of victims of human rights violations and the promotion and protection of victims’ rights have gained increasing international attention, in the fields of both international practice and academic inquiry.
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While victims’ rights are usually associated with reparations, the term also involves several other aspects of victims’ needs, such as retributive justice and the right to truth. Related terms, such as “victim-centered” approaches or “victim-oriented” perspectives, are increasingly found in the transitional justice literature, unfortunately with various degrees of reflection upon what actually constitutes victims’ rights. In this book we use the term, “victim-centered justice,” in an attempt to highlight the encompassing dimension of victims’ rights with regard to different aspects of transitional justice.

What are Victims’ Rights?

Victims’ rights have emerged as a body of norms within the fields of international human rights law, international criminal law, and international humanitarian law, determining the treatment and entitlements that victims of human rights violations ought to have with regard to remedy and reparation. Two critical parallel processes or “tracks” have directly contributed to this development: (i) the UN’s work on the
Basic Principles and Guidelines on the Right to Remedy and Reparation
;
²⁰
and (ii) the International Criminal Court’s (ICC) focus on victims.
²¹

The United Nations General Assembly approved the
Basic Principles on the Right to Remedy and Reparation
in December 2005, after about 16 years in the drafting process. According to Shelton, the principles refer to three categories of obligations and rights.
²²
First, general obligations emanating from international human rights law (IHRL) and international humanitarian law (IHL) to ensure and protect victims’ right to access to justice and to provide substantive remedies. Second, the obligation to investigate and prosecute violations to IHL and IHRL that constitute international crimes. And third, rights of access to justice, the right to substantive reparations, and the right to access to information (read “truth”) in the event of gross violations of IHL and IHRL. Common to all three categories is the right to access to justice, while the right to substantive remedies is common to the first and third categories.

In its Preamble, the
Basic Principles
document not only identifies the legal sources from which the principles derive, but also announces the international community’s adoption of a “victim-oriented perspective” based on human solidarity and respect for the international legal principles of accountability, justice, and the rule of law. On these legal and moral grounds, the
Basic Principles
basically bring together existing standards of IHRL and IHL regarding victims of human rights violations and violations of IHL to establish a more comprehensive and detailed set of rights to which all victims are entitled. The
Basic Principles
establish what is to be understood as victims’ rights: access to justice, reparations, and truth. Each element is addressed by the
Basic Principles
, although the section on reparations is developed in most detail. They list specific forms of reparation, including compensation, restitution, rehabilitation, satisfaction, and guarantee of non-repetition. The latter two also include elements referring to the right to truth and access to information, as well as institutional and legal reform to guarantee non-repetition of abuses.

The
Basic Principles
make explicit reference to the ICC Statute and the ICC’s requirements concerning the treatment of victims of core international crimes, specifically the establishment of various forms of reparation, the creation in the ICC Statute of a trust fund for victims, and the protection and participation of victims during court proceedings. Indeed, the ICC’s Statute and Rules of Procedure and Evidence both establish a series of rights for victims of crimes that fall under its jurisdiction.
²³
One innovation in the Statute is the provision for the participation of victims during court proceedings and the possibility to present their views and observations before the court. Regarding reparations, the court has the power to order individuals to pay reparation to other individuals, and it has the option of granting individual or collective reparation. Reparations may include restitution, indemnification, and rehabilitation, and the court may order these to be paid through the Victims’ Fund. The ICC has two special units to ensure victims’ participation. While the Victims’ Participation and Reparation Section provides public information on reparation proceedings and applications, the Office of Public Counsel for Victims provides legal support and assistance to the legal representatives of victims and to victims.

Restorative Justice

In addition to the inclusion of victim participation in the Statute, the inclusion of a reparations regime demonstrates the introduction of “reparative justice thinking” into international criminal procedures.
²⁴
There are nonetheless concerns about the ability of international tribunals such as the ICC to actually ensure the effective participation of victims and the protection of victims’ rights.
²⁵
We turn now to several elements of victim-centered approaches to justice, beginning with restorative justice.

Restorative justice is commonly associated with victims’ rights and victim-oriented perspectives, as it acknowledges the suffering and needs of victims and attempts to restore the damage done. It assumes that physical, psychological, and social damage must be acknowledged and addressed in order to heal and reconcile. In order to understand the role and influence of restorative justice in present-day processes of transitional justice and peacebuilding, it may be useful to address the origins of restorative justice, which lie outside transitional justice practice.

The principles of restorative justice developed in modern Western societies in the late 1970s as an alternative to retributive justice, expressing a deep dissatisfaction with traditional criminal justice systems.
²⁶
Restorative justice emphasizes the need to understand crime or harm done in terms of the social actors involved or affected: offenders/victimizers, victims, and communities. In order to restore the damage done, the interests and needs of all three should be addressed. Contact between offenders and victims is considered a necessary step to seek understanding and reconciliation between otherwise opposing parties.
²⁷
These principles are at the basis of various mechanisms of conflict mediation and conflict resolution now well established in Western societies.
²⁸
Similar but distinct mechanisms have also developed in countries in the South, often based on or incorporating elements from customary law or traditional practices of conflict resolution, as we will see below.

The introduction of restorative justice principles to the practice of transitional justice is perhaps not a surprising development, and potentially may support wider goals for sustainable peace. While restorative justice generally emphasizes the needs of victims, programmers have also been concerned with taking a restorative approach to the reintegration of offenders into society. Offenders are expected to take responsibility for the harm done, and the community to provide for the protection and support of victims, as well as the effective reintegration of offenders.
²⁹
Restorative principles have been incorporated in the practices of specific transitional justice mechanisms. The participation of local communities is emphasized to secure a satisfactory reintegration of ex-combatants.

The interaction between victims and victimizers is becoming more widespread in both truth commissions and judicial processes, although with mixed results. In Rwanda, traditional local practices are put at work to settle accounts and restore social relations damaged by past atrocities, albeit not without controversy and difficulty.
³⁰
In Colombia, interaction between victims and victimizers occurs under restrictive security measures. Direct visual contact is not allowed, but
victims or their legal representatives—sitting in a separate room—can ask questions to the victimizer through a microphone, seeking information for the clarification of specific cases. The application of restorative justice principles in the realm of transitional justice must bear in mind the great differences existing between individual criminal offences (involving often a single offender and a single victim) and contexts where oppressive regimes or collective actors have committed massive human rights violations, often the result of complex situations where a number of factors, such as ethnicity, class, political allegiance, and religion, may combine to produce systems of oppression, violence, and abuse. Nonetheless, restorative processes that seek to promote reconciliation are not without risks: they have the potential to revictimize and stigmatize both victims and perpetrators. Victim-centered justice, however, builds on one of the most basic principles of restorative justice: the need to restore the dignity of victims on the victims’ terms.
³¹
Retributive and restorative processes are ideally not in opposition or alternative to one another, but rather elements of a more coherent and sustainable approach to transitional justice and peacebuilding.
³²

While the rights formulated by the
Basic Principles
and the ICC Statute are grounded in international law, and influenced by principles of restorative justice, the practice of victims’ rights is grounded in the everyday realities of victims and practitioners. As the country studies in this volume demonstrate, where transitional justice has been placed on the public agenda, so too have victims’ rights. Victims’ rights are often associated with the direct implementation of victim reparations programs; however, as we have seen earlier, victims’ rights involve also access to justice and the right to truth. A focus on victim-centered justice can help us identify if and how specific transitional justice mechanisms incorporate a victim’s perspective and take victims’ needs into account. We thus examine the extent to which victims’ needs, perceptions, and interests have been taken into account by policymakers in designing transitional justice mechanisms. Victim reparations programs have been a common response in the past 10–15 years, in an attempt to address the vulnerability of victims. In spite of the increased interest in victim reparations, such programs are still more the exception than the rule in transitional justice practice. Their design involves a number of political choices that governments in post-conflict or post-authoritarian contexts often find difficult or may be unable to make, due to economic or political constraints.

Why is it important to address victims’ needs, beyond moral and ethical considerations? There is also a political rationale. Compared to the more visible and short-term effects and benefits of, for example, the demobilization of former combatants, the societal benefits of addressing the needs of victims are less apparent, in terms of both physical, visible effects and political impact. However, addressing victims’ needs constitutes a central aspect of peacebuilding because, by so doing, governments and societies actively support ongoing processes of political transformation. Addressing the needs of victims enhances the legitimacy of political transitions in the eyes of victims. Various forms of remedy and reparations, in particular, demonstrate to victims that the state and society at large recognize
their suffering and vulnerability. Addressing victims’ needs can help to signal their social inclusion or reinclusion into societies in which their rights have been violated. According to De Greiff, victim reparations can “be seen as a method to achieve one of the aims of a just state, namely, inclusiveness, in the sense that all citizens are equal participants in a common political project.”
³³

In the wake of violent conflict, the formal justice system may be compromised or destroyed and international justice may be limited or unavailable; in such cases communities, the state, or international actors may promote the use of so-called traditional justice practices, a loose term used to refer to a range of largely non-state conflict resolution and justice mechanisms. Such practices vary widely across communities and countries, involving cleansing and forgiveness rituals, reconciliation ceremonies, or retributive measures. The use of such measures is not uncontroversial, given that traditional justice processes did not historically address serious large-scale crimes and often are modified to address them, as Nagy discusses in relation to
gacaca
in Rwanda in this volume.