Transitional Justice and Peacebuilding on the Ground: Victims and Ex-Combatants (Law, Conflict and International Relations) (4 page)

Traditional justice processes may as noted involve retribution, but are also often restorative, and thus appeal to those who seek to both address the needs of victims and pursue reconciliation among victims, perpetrators, and communities.
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In some countries, such as Sierra Leone and Uganda, they have been utilized to promote the reintegration of former combatants into communities, particularly children and adolescents. Advocates of traditional justice often argue that such processes are more local and legitimate, and better designed to promote reconciliation than retributive justice.
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However, as several of the chapters in this volume explore, the use of such processes to address serious international crimes has significant pitfalls, particularly when they are simultaneously expected to promote reintegration of former combatants who may be perpetrators and to promote reconciliation. In many cases, traditional processes may be used coercively or abusively, or be inconsistent with international human rights standards.
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There is therefore reason for caution regarding their utility in supporting victims.

Peacebuilding

Peacebuilding processes involve an ever-increasing range of activities, both political and technical. These include the rebuilding of state institutions, including rule of law, DDR, and security sector reform, to list those most likely to overlap with efforts at pursuing transitional justice. It is conducted by a wide range of actors, including the UN and other multilateral organizations, bilateral donors, and national and international NGOs. Some analysts criticize contemporary peacebuilding processes, arguing that they are shaped by Western liberal paradigms emphasizing democratization and market liberalization, and that they fail to take sufficient account of local needs and demands. These criticisms are not the primary focus of the chapters here, although they have facilitated new discussions about the roles of local actors in peace and justice.
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We focus on DDR, while recognizing that peacebuilding activities have a wider scope.

Why Focus On DDR and Reintegration?

This book focuses specifically on the relationship of DDR processes and the longer-term reintegration of former combatants with victim-centered justice. It does so both because DDR is essential to stabilizing security and limiting the risks of return to violence and because it has the potential to be in tension with victim-centered approaches to justice, as efforts to promote reintegration necessarily involve engagement with victims and affected communities. DDR has become a central part of international peacekeeping and peacebuilding operations, but its success depends on political will of all participants, including that of former combatants themselves.
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While numerous DDR processes have been reasonably successful in disarmament and demobilization of former combatants, reintegration—as many chapters in this volume illustrate—is far more challenging.
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What does DDR entail? Most DDR programs involve combatants from state and non-state armed groups and proceed in several stages. The UN Integrated DDR Standards articulate the stages as follows.
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First, disarmament involves the collection, documentation, and disposal of small arms, ammunition, explosives, and light and heavy weapons from former combatants and civilians. Second, demobilization entails the discharge of combatants from armed groups, often with their placement in cantonments or other assembly areas. Ex-combatants are given reinsertion support during demobilization, before reintegration. This may involve material assistance, including food and shelter, financial assistance, and technical training and education to enable them to transition to gainful employment. Finally, reintegration seeks to return ex-combatants to civilian status and provide them with viable employment. It also aims to place them in their own former communities or other communities, if return is not feasible, and thus relies on the willingness of communities to accept their return. As these are communities that may have been directly affected by abuses committed by former combatants, longer-term social reintegration often proves challenging.

The financial and material support, including training provided to former combatants at the demobilization and cantonment stage, as well as reintegration support, often in the form of cash payouts, may appear to victims or affected communities to unfairly benefit one group. Local communities may view these processes as compensation to those who perpetrated violence and abuses, while victims often receive no form of reparation, or are provided with reparations far later. Some reintegration may be eased with community consultation and incentives.

Regardless, DDR processes necessarily interact with transitional justice processes, by either comparison of benefits given to possible perpetrators and identified victims, or the participation of ex-combatants in transitional justice processes including truth commissions, trials, and traditional justice mechanisms. This is particularly the case as the practice of DDR has expanded in frequency and activities.
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DDR has an inevitable effect on accountability for past violations because ex-combatants from one or more parties are likely to be highly resistant
to any accountability processes, and thus transitional justice efforts may be blocked by amnesties already enshrined in peace agreements. Leaders and their cadres are less likely to cede arms and canton fighters if they fear arrest. At the same time, the presence of large numbers of individuals responsible for abuses either in positions of power, or simply mixing with the rest of the population, may generate resentment and the risk of backlash, and is clearly in tension with calls for more victim-centered justice.

However, just as former combatants will demand a degree of impunity, victims and human rights advocates will demand accountability. Peace agreements may provide for a range of accountability (or non-accountability) mechanisms including vetting, or exclusion from certain official functions of those responsible for serious abuses, prosecution, truth commissions, reparations, and amnesty. Given the common objections of armed factions to accountability, it may be necessary to seek a compromise that balances demands for justice with the need for DDR, bearing in mind that the UN
Draft Set of Principles to Combat Impunity
reject blanket amnesties and amnesties for the most serious international crimes (such as genocide, war crimes, and crimes against humanity) and that international prosecution of such crimes is not subject to a statute of limitations.

DDR processes also operate alongside, and sometimes seek to utilize, non-state justice and conflict resolution mechanisms, often without recognizing that they may have an impact on these processes. They also rely openly or less so on these processes to aid “reintegration,” but without any critical reflection. Thus, for example, returning fighters may take part in community or “traditional” cleansing or reconciliation ceremonies, as with some former members of the Lord’s Resistance Army in Northern Uganda through the Acholi
mato oput
traditional justice or conflict resolution practices. While such processes may ease reintegration, it is worth recalling not only that traditional practices are not designed to cope with ordinary killing, much less mass atrocities, but also that the practices themselves may be inconsistent with international human rights standards. There are no formal guidelines for assessing which non-state practices of justice merit support, or to determine how they should interface with DDR processes. Because traditional systems are frequently utilized in post-conflict situations, practitioners need a greater understanding of how they engage communities, victims, and perpetrators.

Cross-Cutting Issues

While this volume focuses on the interplay between transitional justice and peacebuilding as expressed through the promotion of victim-centered justice and DDR practices, a number of cross-cutting issues run through most of the chapters, discussions of which may contribute to broader debates in transitional justice practice.
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The issues are: development and priorities in post-conflict societies, timing and sequencing, and coordination/integration between transitional justice and peacebuilding programming. These are raised in very different contexts across many of the chapters, although some are more salient in particular
countries than others. In the conclusion, we seek to identify the key opportunities and risks related to these cross-cutting issues and to identify implications for practitioners.

Development and Priorities in Post-Conflict Societies

The challenges of socio-economic development are common to most transitional societies, creating constraints on the pursuit of transitional justice. The primary problem is funding: Amid a sea of demands for basic social services, public infrastructure, and the (re-)establishment of public institutions, how to legitimate public spending for the prosecution of perpetrators or a truth commission? However, the relation between transitional justice and development goes beyond funding, ultimately referring to what could be considered the overall objective of transitional societies—peacebuilding. Ongoing debates on the links between transitional justice and development emphasize the need for awareness of the national and local contexts where accountability mechanisms are to be applied, in order to tune transitional justice goals to national development objectives and policies.
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Some advocates argue that sustainable peace needs to address structural inequalities, calling for the inclusion of distributive justice goals as an integral part of transitional justice.
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While transitional justice and the goals of distributive justice can indeed be complementary, the mechanisms available to transitional justice, with their focus on addressing past violations, are generally insufficient or inappropriate to address structural inequalities.
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There is also an ongoing debate on the appropriateness of development projects as a form of collective reparations. For transitional societies with limited financial resources and large numbers of victims, collective reparation programs that provide goods and services—such as schools, small roads, community houses, start-up materials, and capital for community enterprises—are attractive alternatives to individual compensation schemes. However, human rights organizations in particular are keen to point out that such services are the duty of states in any situation, and do not capture or consider the restorative aspect of victim reparations. The position taken by victims’ organizations on this issue varies greatly in different contexts. Empirically based research on the relation between collective reparation and development will contribute to illuminate this debate and, preferably, from a victim-centered perspective.

Timing and Sequencing

There is no one-size-fits-all solution to the question of timing and sequencing, whether of peacebuilding or transitional justice generally; advocates continue to argue about the priority which one must take over the other.
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Yet, frequently, justice measures are initiated, or reinitiated, well after the commission of the original crimes or after political transition, as has been the case in Argentina, Cambodia, Bosnia, and Lebanon.
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In general, immediate security and stabilization concerns, and the dictates of peace agreements, mean that DDR processes specifically are
initiated early, at the start of transition and peacebuilding, while victim-oriented processes, whether criminal accountability or reparations, are significantly delayed. This may appear to be preferential treatment for ex-combatants who may also be perpetrators of abuses, and be resented in particular by victims and their advocates. However, in the absence of closer integration between DDR processes and victim-oriented processes, the time lag may be inevitable.

Policy and Programming: Coordination Or Integration?

This leads to an important question: Should DDR be more tightly integrated with transitional justice processes, including victim-centered approaches to justice? As we have discussed, DDR processes not only take place earlier than transitional justice in most countries, but also tend to engage successfully in disarmament and demobilization more frequently than in reintegration. In Colombia, DDR, truth-telling, retributive justice, and reparations have been linked to a degree, albeit not by evident design. In Sierra Leone and Northern Uganda, traditional justice processes have been touted as a means to return some former combatants and engage victims and communities. Yet, as the chapters on processes in these countries illustrate, tighter integration of processes may have a down side. In this volume, Lars Waldorf suggests that it is not the solution, but rather that transitional justice processes be left to take on elements of integration, while leaving peacebuilding processes with the earlier stages of disarmament and demobilization. The balance of evidence in the chapters suggests that coordination is preferable to tighter integration, although civil society actors interviewed in Sierra Leone frequently expressed a preference for the latter.

About this Book

Methodology and Research Approach

This volume presents a number of thematic, cross-cutting chapters, followed by a series of country case study chapters. The thematic chapters address UN peacebuilding and transitional justice policy, the specific challenges of DDR, legal pluralism and the role of traditional justice, and the challenges of pursuing justice in ongoing conflicts, where peacebuilding remains a challenge. The country chapters present structured, focused case comparisons of a range of experiences from Africa, Asia, Latin America, and Europe. With a clear recognition that each country has its own particular history, political culture, conflict dynamics, and accountability processes, we seek to identify common challenges, themes, and approaches taken by these countries.
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The country chapter authors were instructed to engage specifically with the broader literatures on peacebuilding and transitional justice, and to consider in their own studies the role or demands of victim-centered approaches to justice, and the place—if any—of DDR processes and longer-term questions of social reintegration. The way in which the country chapters engage with the two processes varies because of the significant
differences amongst country experiences. In some instances, countries engaged relatively little with transitional justice, while in others very little with peacebuilding, and in a few countries transitional justice processes were embedded in peacebuilding processes.