Transitional Justice and Peacebuilding on the Ground: Victims and Ex-Combatants (Law, Conflict and International Relations) (39 page)

Hybrid tribunals, operating as they ordinarily do on the territory of an affected society, are expected to be more accessible to the society and to victims, and thus to serve this expressive function, and serve the needs of victims specifically.
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Why Commissions of Inquiry?

Commissions of inquiry, and particularly so-called truth and reconciliation commissions, are often expected to provide restorative justice—the South African Truth and Reconciliation Commission is frequently cited as the prime example. There have been more than 35 truth commissions since 1974. Such bodies are often expected to give victims a voice and the opportunity to share their experiences, to provide official acknowledgment of their suffering, to provide an account of “the truth,” to advocate reparations and various reform measures, and of course to involve not only victims but also perpetrators, as givers of testimony and seekers of reconciliation.
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As Humphrey puts it, they are expected to “morally reconnect” victims with the wider society.
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Specifically, such processes are expected to provide a forum for victims to share their experiences, and to receive acknowledgement, but, more than that, to engage all parties involved, including victims, perpetrators, communities that have been harmed, and wider affected communities.
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The “unearthing” of truth itself is expected to contribute to reconciliation.
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Why Traditional Justice/Conflict Resolution?

Traditional justice practices are often utilized in the wake of intercommunal conflict to address past harms. These are a diverse set of practices, with some oriented towards conflict resolution, some emphasizing retribution, some emphasizing cleansing, some forgiveness, and many various combinations amongst these. In Sierra Leone, where it is estimated 80 percent of the population does not access the formal justice sector, which may be small, damaged, and concentrated in urban areas, they are an unavoidable presence.
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Nearly all, however, were designed to address relatively small transgressions, rather than mass violence and
grave crimes. Further, many have been transformed in order to address large-scale crimes, losing much of their “traditional” character, as has been the case arguably with
gacaca
in Rwanda.

Nonetheless, such processes are often deployed with a concept of restorative justice in mind, seeking to address the needs of victims, while yet seeking to reconcile victims and perpetrators.
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And indeed, in some instances, they are deployed specifically to reintegrate former combatants into communities, particularly former child combatants. Advocates of the use of traditional practices would argue that they are more locally owned and legitimate, that they help to promote “reintegrative shaming,” and that they can promote reconciliation both between victim and community and offender and community, as well as between victim and offender.
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Yet there has been relatively little reflection about the impact of both transforming such traditional processes to deal with serious human rights abuses and efforts to use them to address needs of victims as well as to reintegrate former combatants. Further, as discussed above, such an account of traditional mechanisms fails to take account of the risk that they will be used coercively. Further, in countries such as Sierra Leone, it is essential to acknowledge the degree to which traditional processes may be inconsistent with international human rights standards, or have previously been used in an abusive manner, or have lost legitimacy or relevance over the course of conflict as communities have been shattered or displaced.
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Victims’ Rights, Communities, and DDR in Sierra Leone

The challenge of DDR in Sierra Leone was vast. While initially it was estimated that some 45,000 combatants were to be processed, the ultimate figure was much higher, about 73,000.
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The disarmament stage of DDR involved the collection and destruction of ammunition and weapons turned over by ex-combatants. Ex-combatants were placed in demobilization centers, where they stayed between three days and three weeks, and were given medical and psychological care and information on reintegration support. They were also given subsistence allowances of about US $150; this use of cash incentives was and continues to be the subject of some criticism.
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A number of measures were developed during the demobilization phase to promote reintegration of both children and adults into communities. DDR packages were designed to allow former combatants to earn livelihoods in the future and make their return or integration more likely to be welcomed. Adults received a mixture of cash and training; children received training or education. Training included formal education, agricultural training and vocational training, particularly in carpentry, masonry, tailoring, hairdressing, and computers. Formal DDR was completed in 2004 and was considered by many to be a success. However, while significant numbers of former combatants passed through DDR programs, many chose to reintegrate either in the areas where they demobilized, or to areas which were not their original communities, choosing often the anonymity of urban areas.

However, there has been some criticism that the training given may have raised expectations and that there were often insufficient jobs available.
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There was also a sense that the training was too limited to impart sufficient skills, and indeed the informal epithet heard in relation to what is perceived as an unskilled worker or as poor work product is “DDR-driver” or “DDR-construction,” to use two examples. Many who passed through training programs appear to have recognized this and simply sold their starter kits upon, or even prior to, completion of training.
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Many former combatants used these funds along with DDR Transitional Support Assistance to help in getting started in taxi-driving or motorbike businesses (
okada
). These businesses, while filling a niche in the market and providing a livelihood for many ex-combatants, also meant that they were more likely to remain in urban centers and not return to their former or new villages. As one interviewee suggested to me, while the fact that so many former combatants are gainfully employed in legal jobs might be seen as a success of DDR, the shift to employment which was not part of the DDR training suggests a failing in the DDR program.
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The DDR program was far from a complete success. In particular, women and girls had less access to the formal program, because they often did not have weapons to submit, having been accompaniers of fighting forces as porters and bush wives, or because commanders did not permit them to retain weapons which might be turned in. There was, further, a stigma attached to their role as fighters, so some chose not to seek to participate in the process.
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The DDR process was also subject to the criticism that it was unfair. Civilians clearly observed that ex-combatants generally received assistance through DDR packages in a process which ended in 2004, leaving former combatants who may also have been perpetrators better off than they might have been, and able to start their own businesses.
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Meanwhile, affected communities and victims, including amputees and victims of sexual and gender-based violence, waited for development assistance and, until 2009, for a limited reparations program.
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As one observer put it, return of ex-combatants was made more difficult by the perception that they were being paid for killing and destroying villages.
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This did not, however, necessarily preclude acceptance of return of ex-combatants. Indeed, community members in Sierra Leone have told researchers that they would forgive ex-combatants who had committed abuses if they returned and were useful to the community, say through the provision of skills such as carpentry. However, the conception of forgiveness appears to be a thin one—that of not taking revenge, rather than the expression of actual trust.
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The Challenge of Former Child Soldiers

Reintegration of former child combatants in Sierra Leone brought the tensions between victim-centered approaches to justice and DDR to the fore, not least because many efforts at reintegration of former child combatants utilized cleansing and community-based processes. The reintegration of child soldiers poses particular challenges, because of their relative youth, and the likelihood that children
may have had little or no education prior to the conflict, and thus have relatively little to contribute to the economy of a village, and have been compelled to engage in abuses that might make their return to villages unwelcome. Many former child soldiers faced the stigma of being “rebels.” Former Civil Defence Forces (CDF) fighters faced far less stigma but were also often excluded from the formal DDR process.
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Children received training or education rather than cash reintegration packages, out of concern that former commanders would simply take the money.
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They passed through Interim Care Centers prior to attempts to return them to communities and families. Sport, particularly football, was utilized in some of those centers as part of the transition of youth from fighting forces to return.
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On the surface, at least, the process was successful— some 98 percent of demobilized children were returned to a parent or relative initially.
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Of critical importance, according to some commentators, was community sensitization designed to facilitate acceptance among communities who had been harmed and might understandably prefer that former child soldiers who had abused them never return. Community-based mechanisms, led by local leaders, traditional leaders, and others, emphasizing the children’s own victim status, may have facilitated some reintegration.
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Child welfare or protection committees were created within many villages to address new misbehavior by returning child solders, which mediated between the children and those they harmed; these were partly traditional elders, but also other members of the community and even the police.
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The emphasis was on mediation as a form of restorative justice, both for those that were wronged and to seek to reform wrongdoers and encourage them to become constructive members of the community.

“Traditional” Justice Processes as Mechanisms of Reintegration

In some instances, so-called traditional mechanisms such as cleansing ceremonies have been used to promote reintegration of former child combatants into communities where they may have harmed others; such practices are not unique to Sierra Leone.
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In Sierra Leone, unlike in northern Uganda, such ceremonies do not appear to have entailed admission of guilt or provision of reparations. Cleansing ceremonies and healing rituals appear to have been part of the reintegration of significant numbers of former child combatants or accompanying personnel, although the numbers are difficult to determine.
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As with aspects of formal DDR, such social reintegration processes were often gender-biased. Girls fighting in armed groups or accompanying them as porters or bush wives were often excluded from such processes, meaning they had less to offer communities; their status as victims of sexual abuse often further hampered reintegration.
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Local Sierra Leonean NGO Fambul Tok, established jointly by Forum of Conscience (Sierra Leone) and Catalyst for Peace (USA), has initiated community-based ceremonies, mixing traditional conciliation practices, narratives of victims, and apologies and requests for forgiveness by victims and perpetrators.
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The
purpose, according to its founder, is societal reconciliation, but not specifically focused on reintegrating former combatants and/or perpetrators.
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Researchers observing these ceremonies have reached contradictory views about their efficacy, with some interpreting apologies and forgiveness as quite genuine, and others viewing them as either not genuine, or decided upon prior to any ceremony.
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However, as Stovel and Valiñas argue, there is a genuine risk that restorative justice uses victims to rehabilitate and reintegrate offenders, which may take insufficient note of the impact on victims and the possibility that they are coerced into “reconciliation.”
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Restorative justice may be coercive of perpetrators as well as victims. As the TRC report recognized, a relatively small number of perpetrators sampled were prepared to apologize for their actions, much less help reconstruct communities, and none sampled were willing to pay reparations to victims.
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Thus, some form of coercion would be needed to compel them to engage in restorative acts—either threats of prosecution by the state or the prospect of exclusion by communities.

Of course, ritual processes are largely directed by traditional chiefs, who in some cases may have lost legitimacy because of their own pre-war abuses, their own victimization or perpetration of harms during the conflict, social disruptions, and abusive or illegal conduct of traditional processes after the conflict.
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As Fanthorpe notes, chiefs were targeted alongside other authority figures during the conflict, and chieftaincy has been the subject of struggles for political control in the country for far longer.
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Abuses by chiefs are frequently cited as generating grievances that helped to stoke the conflict.
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As Stovel and others have observed, restorative justice treats humans as relational beings, which means that what is needed is to restore relationships in the wake of conflict, between and amongst victims, perpetrators, and communities.
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However, and this is the case in many conflict-affected countries, DDR programs in Sierra Leone were not able, and did not seek, to restore social relations as part of reintegration processes. Reintegration is often the least developed part of DDR programs, and Sierra Leone was no exception. Thus while disarmament and demobilization proceeded quickly, reintegration was more complex and arguably less successful.