Transitional Justice and Peacebuilding on the Ground: Victims and Ex-Combatants (Law, Conflict and International Relations) (38 page)

Conflict, Peacebuilding, and Justice in Sierra Leone

I will only provide a brief account of the conflict in Sierra Leone here as it has been discussed in detail elsewhere.
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Conflict between the government and the Revolutionary United Front (RUF) began in 1991 and continued for over a decade, resulting in some 50,000 deaths and widespread atrocities including mutilation and sexual violence. As is well known, forcible recruitment of child soldiers, often through the use of abductions and drugging, was widespread during the conflict, particularly but not only by the RUF, which often compelled these children to commit atrocities against family members and neighbors in an attempt to ensure that they had no place to which they could return.
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Negotiations in 1999 led to the Lomé Peace Agreement, and the UN Security Council mandated a peacekeeping force, UNAMSIL.
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The Lomé agreement was condemned by many for including a blanket amnesty for all crimes committed during the conflict. The United Nations, which acted as a “moral guarantor” of the agreement, issued a reservation indicating that it did not consider the amnesty provision to cover international crimes. Despite the agreement, fighting and atrocities continued, along with attacks on UNAMSIL.

The peacebuilding process saw demands for justice for victims and prosecution of perpetrators, alongside the need to stabilize the country and pacify armed groups, in the first instance through DDR. In May of 2000, the notorious RUF leader Foday Sankoh was captured, provoking discussions of the possibility of an international or other tribunal to prosecute him and other war criminals. As I will discuss later, both a commission of inquiry and a hybrid tribunal were created to address accountability for past abuses. Despite these internationally supported efforts at justice, the reconstruction of the justice sector was slow, making extensive domestic trials unlikely, and the reparations process did not begin until 2009.
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DDR efforts, which ran in fits and starts from 1998, operated more effectively once a strong peacekeeping force was in place and were completed in 2004. Sierra Leone, now a decade out of conflict, continues to be of significant interest as one of the first two countries of operation of the United Nations Peacebuilding Commission, and indeed it is the related UN Peacebuilding Fund (UN PBF) that has offered the majority of support for reparations in the country, along with a range of other measures.

Why Victims’ Rights and DDR?

While, in practice, as we shall see, it is impossible to treat victim-centered approaches to justice separately from DDR processes, the justifications for each in peacebuilding situations where there are also demands for transitional justice are often articulated separately, by different actors and as though there isn’t a connection, or as though there is simply conflict, between the two. Yet, increasingly such processes draw on and modify similar mechanisms, in particular invoking concepts such as restorative justice, traditional justice and conflict resolution, reconciliation, and reintegration. This approach, I will argue, is deeply problematic, failing as it does to recognize the purposes and limitations of such concepts and the ways in which they may have been altered through the course of conflicts. Further, there is a risk that peacebuilding and transitional justice processes which link, intentionally or otherwise, victim-centered justice and DDR, may coerce victims to engage with and “forgive” perpetrators for the purposes of short-term reconciliation processes in ways which do not promote longer-term acceptance and coexistence.
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Victim-Centered and Restorative Justice

While restorative justice is far from the same thing as victim-centered justice, as victim-centered justice may involve greater participation by victims in retributive
processes as well as a range of other measures, much current practice in transitional justice has emphasized victim-centered justice as restorative justice, further promoting it as contributing to reconciliation.
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While some advocates and parts of the literature have for a long time argued for a victim-centered, rather than solely retributive, justice, or communally rather than individually focused accountability, practical measures to incorporate victims into traditional justice processes have increased in recent years. This is evidenced by the creation of a victims’ trust fund at the International Criminal Court (ICC), the provision for participation by victims in proceedings in such institutions as the ICC and the Extraordinary Chambers in the Courts of Cambodia (ECCC), the expectation that truth and reconciliation commissions provide specific benefits (moral and material) to victims, and the growth of reparations programs as well as UN guidance and principles pertaining to restorative justice.
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Advocates and scholars of restorative justice argue that it is not merely an alternative mode of doing justice, or a second-best option when criminal justice is not viable, but rather that it is based in an “alternative vision of justice.”
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On this conception, human beings are relational, which means that conceptions of justice need to recognize that they are connected and that any response to harm must address not just the harm to direct individual victims but a wider set of related actors. Justice on this account seeks the restoration of relationships, not necessarily to the
status quo ante
, but to a peaceful and constructive relationship.
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This conception is, according to one proponent, forward-looking and focused on reintegration over isolation, and must not only involve victims, wrongdoers, and communities, but focus on restoring relations among all of these.
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There are several types of arguments that might be adduced in favor of victim-centered approaches to justice, either instead of, as part of, or as a complement to retributive justice: some practical and some normative. Practical arguments include the need, in post-conflict societies, for victims to accept the return of former perpetrators into their communities, or as normalized members of society at large; to ensure that new conflicts are not stoked by the desire of victims for vengeance; and to reintegrate victims into society who may have been excluded because of their status as “victims.” In general, the practical goal is to ensure that victims (and offenders) who may have been alienated from the community at large are reintegrated and that grievances are dealt with through civil, legal means. It is the restoration of a limited degree of trust amongst victims, perpetrators, and the wider community, which is not the same as a deeper sense of reconciliation, about which there is much debate.
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Normative arguments for victim-centered justice emphasize the harm done to victims and the need to repair relationships. From this perspective, because victims have suffered a harm, attempts should be made to restore them; and because perpetrators have caused that harm, they have the responsibility to attempt to repair the harm. In so doing, on this logic, it becomes possible for offenders to reintegrate into the community and for wider social trust to be restored.
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Of course, victim-centered approaches to justice are not an obviously unqualified good—just who the victims are is contested within and across communities,
just as who is a genuine perpetrator may be contested. In Sierra Leone, more than one interviewee noted that in some sense everyone who lived in the country during the war is a victim.
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As is commonly noted in the context of child soldiers, individuals may be both victims and perpetrators. Further, there is a danger of reification of the concept of victim and in particular of overly individualizing the experience of mass atrocity, where many of the harms will have been collective—to direct victims, to their families and immediate communities, and to wider communities.
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There is also the risk that victims are used to serve the purposes of reintegration of perpetrators, and are coerced into “reconciling.” Or, there is the risk that processes simply coerce participation of victims in the name of restorative justice, which is itself contradictory.
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DDR and Transitional Justice

As I and a colleague have argued elsewhere, DDR and transitional justice processes often operate contemporaneously in countries emerging from conflict, yet are often designed by different actors, without significant consideration of the impact that each process might have on the other.
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Processes of DDR are designed not only to disarm former combatants, but to promote their turn to a peaceful civilian life in their own former communities or new communities, or their integration into new and reformed state security forces. As such, they usually entail a mixture of training and education, and in some cases cash payments, to induce the transformation of former combatants and in some cases to make their return more attractive to communities. And in some instances, as discussed further below, DDR processes adopt, transform, and co-opt so-called traditional justice and conflict resolution processes such as cleansing ceremonies. At the same time, a range of transitional justice processes seek to address past abuses, many of which will have been committed by former combatants during the conflict. Prosecutions in domestic courts, commissions of inquiry, and traditional justice processes, some or all of which may include reparations, are just a few of the commonly used mechanisms. These are often expected to address the needs of victims, as well as promote reconciliation, in addition to their technical functions.

Clearly, there are risks of competition and conflict between each set of processes. Any DDR process that provides material benefits to former combatants may be criticized by victims, particularly where reparations processes are limited or non-existent. Former combatants may be conflated with perpetrators, notwithstanding the fact that many may not have engaged in abuse of civilians and the fact that many, particularly child soldiers, may have been victims themselves. At the same time, accountability processes may undermine the incentives of former combatants to return to civilian life, if they fear imprisonment or shunning, or the prospect of making reparations from scarce resources. And in some cases, formal processes may be somewhat culturally foreign, with localized preference for, or at least recognition of, traditional processes. Here, DDR and
transitional justice activities may converge, but without much reflection on that fact by practitioners of each until relatively recently.
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In other circumstances, DDR may be implemented more clearly in the “terrain” of transitional justice, as in Colombia where reparations processes and DDR take place simultaneously.
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And as the theory and practice of DDR and transitional justice have each developed, there is a greater mutual recognition, not least through guidance documents such as the United Nations’
Integrated Disarmament, Demobilization, and Reintegration Standards
. Perhaps notably, there is a recognition that DDR measures must also garner the support of communities and the utility of community development incentives to accept ex-combatants, in the 2006 version of the standards, and a transitional justice module was added to the guidance subsequently.
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Nonetheless, as Theidon’s research in Colombia demonstrates, while there is an official linkage between DDR and reconciliation, demobilized members of the paramilitary not only do not recognize it, but are unaware that it is declared; at the same time community members do not appear to have been consulted about the reintegration of ex-combatants in their regions.
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The convergence of transitional justice and DDR processes is perhaps most evident in the context of child soldiers, not least because they are both victims and perpetrators and because they may be in greater need of reintegration into their former communities and family structures, given that they may still be minors. There is also a clear legal proscription of child recruitment: while there are discrepancies with regard to the appropriate age threshold, child recruitment is a crime in international law.
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And it is with the reintegration of former child soldiers that cleansing ceremonies are often used, in Sierra Leone but also elsewhere in Africa. I discuss these below in the Sierra Leonean context.

Hybrid Tribunals, Commissions of Inquiry, and Traditional Justice in Countries Emerging from Conflict

Why Hybrid Tribunals?

Internationalized criminal justice can be pursued through a range of processes, ranging from the ICC, to the soon-closing
ad hoc
tribunals for the former Yugoslavia and Rwanda, to the exercise of universal jurisdiction. Regardless of the form, there are increasing demands that processes imposing criminal accountability on individual perpetrators also serve needs of victims, rather than purely retributive justice. Some advocates argue that trials already do provide important goods for victims, in that they offer them a sense of vindication.
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They are also often expected to have wider pedagogic impact for affected societies, and assist in the reconstruction of divided societies, although critics suggest they may have the opposite effect, creating divisions between guilty and innocent, and scapegoating some.
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Nonetheless, demands for prosecutions continue, and increasingly international trials are expected not only to prosecute the accused and punish the guilty but also to take account of the needs of victims.

Hybrid tribunals are but one form of internationalized criminal courts, but one often advocated as having more relevance to victims and societies at large. Specifically, where international criminal justice has often been criticized for not communicating with affected societies, in part because of distance and in part because of the difficulty engaging, there is an increasing demand that trials serve not only a retributive or a deterrent function, but also an expressive one, with meaning for societies.
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In the absence of such an expressive function, some scholars argue, criminal justice processes in the wake of mass atrocity may lack traction and legitimacy, and the norms they seek to convey and enforce will not be properly internalized. Instead, processes may simply reinforce an elite pact about how to proceed after conflict.
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In particular, such processes may not be accepted by perpetrators, making it difficult to rebuild social norms proscribing mass violence and atrocity.
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