Transitional Justice and Peacebuilding on the Ground: Victims and Ex-Combatants (Law, Conflict and International Relations) (5 page)

Structure

The volume proceeds in two parts. First, four chapters explore critical themes that arise across the volume, including the role of the UN Peacebuilding Commission, the challenges of pursuing justice in ongoing conflicts, the specific challenges of pursuing DDR and transitional justice, and legal pluralism and traditional justice. Second, eight country-specific chapters consider the challenges of peacebuilding and transitional justice, with a focus on victim-centered approaches to justice and DDR, and longer-term reintegration, allowing for comparative analysis of enduring challenges and possible opportunities.

We considered clustering chapters by the primacy of national, international, or hybrid processes and institutions. However, we found that too many countries experience several of these to draw meaningful distinctions. We also considered dividing countries between those that experienced “standard” peacebuilding or transitional justice processes vs those that did not, but found again that, while there were some evident outliers, such as Lebanon, Colombia, and Kenya, which have not truly experienced either, other countries were sufficiently atypical that the distinction did not further meaningful comparative analysis. We decided ultimately to present country experiences in loosely chronological order (based on the original transition or conflict termination point) and elaborate on lessons learned in the conclusion of this volume.

Thematic Chapters

Dustin Sharp’s chapter discusses ways in which the UN Peacebuilding Commission might play a stronger role in developing more integrated approaches to DDR and transitional justice. Despite the challenges, he finds that current policy approaches to reintegration need improvement. Specifically, Sharp examines how local practices in justice and reconciliation could be an area where the commission plays an important role in sharing experience, while relying and using its expertise to tailor initiatives to the particular context. He argues that, while overlap between DDR and transitional justice may well pose risks, there are also significant opportunities for better integrated policies and outcomes.

Par Engstrom’s chapter discusses the challenges of pursuing transitional justice in the midst of ongoing conflict. He discusses the ways in which transitional justice is increasingly part of conflict resolution and peacebuilding efforts, and considers the role of judicial activities in the midst of conflicts. He observes several challenges. First, the increased use of judicial processes in conflict settings has helped to provoke calls for proof of the impact of transitional justice, which is often hard to produce. Second, the internationalization of transitional justice activities poses
a challenge to local actors and their role in the processes. Third, narrow legal and judicial approaches to transitional justice may not be well suited to address complex social/political problems and may indeed obscure their political nature.

Lars Waldorf’s chapter on integrating DDR and transitional justice focuses on reintegration as the main area of overlap between the two fields. He examines whether the best way forward should be integration or coordination, and looks at specific transitional justice mechanisms: amnesties, prosecutions, truth commissions, local justice, reparations, vetting and screening, and how they can influence the social reintegration of ex-combatants and peacebuilding. He suggests that a more realistic approach would be the coordination of disarmament and demobilization and transitional justice in the short term, with longer-term reintegration left to other actors, rather than DDR programmers.

Rosemary Nagy discusses the pluralization of transitional justice in a number of dimensions: first, the diversification of measures beyond those that are internationally driven to those that are locally driven and second, the operation of justice in locales with both formal and informal or traditional justice sectors. She discusses in particular the complex ways in which traditional justice interacts with internationally driven justice, in particular highlighting concerns that this interaction may serve negatively to consolidate state power at the expense of justice, reconciliation, and durable peace.

Country Chapters

The chapter by Johanna Herman examines the relationship between peacebuilding and transitional justice in Cambodia, focusing in particular on the work of the Extraordinary Chambers in the Courts of Cambodia (ECCC). Cambodia’s experience demonstrates the need for a pragmatic approach, as Herman describes it, to advance and link transitional justice and peacebuilding efforts. Such an approach can help actors to seize the few opportunities available as they come, as has been the case with victim participation in the ECCC, one of the most notable innovations of the tribunal.

The chapter by Chandra Lekha Sriram urges us to reflect on what constitutes peacemaking and peacebuilding, what constitutes a transitional justice mechanism, and what does not. Focusing on the Special Tribunal for Lebanon (STL), she considers the establishment and workings of the tribunal in a context of limited peacebuilding (if it can be so termed) and even more limited accountability, questioning the prospects of the STL to encourage domestically driven efforts to address a broad legacy of past violations during the civil war and the Syrian occupation. While she sees little relevance of the STL for wider accountability in Lebanon for significant abuses committed during and after the conflict, she suggests that there is a limited opportunity created by its presence for human rights advocates and victims’ groups to make accountability part of public discourse. This is, however, limited by official policies of silence and the continued political dominance of former combatant groups.

Olga Martin-Ortega explores the interactions between peacebuilding and transitional justice in the reconstruction process in Bosnia and Herzegovina. At a superficial level at least, peacebuilding has been successful, because the country has not reverted to violence and national institutions have been consolidated. However, a closer look at the processes and mechanisms implemented in Bosnia shows a more nuanced picture. She argues that failures in managing nationalistic structures and dealing with demobilization and security have undermined the capacities of the country to promote accountability. Prosecutions have, she argues, contributed to the process of peacebuilding and helped pave the way for consolidating formal rule of law. However, justice has been mainly driven by the international community and has not promoted complementary, locally driven processes, and the reliance on retributive measures has not contributed to wider goals of social reconciliation.

Chandra Lekha Sriram’s discussion of peacebuilding and transitional justice in Sierra Leone demonstrates both the challenges of attempting to link victim-centered justice to reintegration of ex-combatants and the problems of pursuing victim-centered justice well after formal DDR concludes. Victims’ groups and civil society have strongly criticized the long delay between the completion of the DDR program, seen by some as unfairly privileging possible perpetrators of abuses, and the initiation of the relatively small reparations program. Yet, at the same time, efforts at social reintegration of former combatants through traditional justice measures emphasizing the engagement of victims, perpetrators, and communities have their own pitfalls.

Rosalind Raddatz discusses peacebuilding and transitional justice in Liberia. She suggests that, against great odds, important strides have been made in both, but cautions against “great expectations.” She outlines the shortcomings and criticisms of the Truth and Reconciliation Commission (TRC) and the turn to viewing traditional justice mechanisms as a more viable solution than formal prosecutions. She outlines, too, the initial challenges faced by DDR, and its general failure to deal sufficiently with women and girls who had played a role in fighting forces. The extensive reparations recommended by the TRC are unlikely to ever receive significant funding. In short, the numerous demands for justice, security, and recognition espoused by Liberians seem unlikely to be addressed.

In her chapter on Uganda, Joanna Quinn brings our attention to one of the cross-cutting themes addressed in this volume, the relation between transitional justice and development. While calls for greater coordination and integration between the two fields are made by donors and international organizations, the case of Uganda demonstrates how difficult it is to develop effective and meaningful policies and programs that not only bring both fields together but, most importantly, take into consideration the distinctive requirements of the fields, particularly with regard to the needs of the people they are supposed to serve. This chapter demonstrates that, in situations with limited government capacity and will, amid many demands from national and international actors, the mixing of several related agendas can be a poor way to address the various issues.

Jemima García-Godos considers the unusual situation in Colombia, with the application of typical transitional justice measures in the context of ongoing conflict and in the absence of a transition or a peace agreement. Yet, as she notes, the Justice and Peace Law, and the attendant institutional structures that have grown up around the demobilization processes in Colombia, have linked demobilization and the rights of victims. The process has developed its own dynamic and, most importantly, it has contributed to the legitimation of victims’ rights. While the process in Colombia faces many challenges and is far from a success, it illustrates one mode in which DDR and victims’ rights may be linked, as well as possible limitations.

Stephen Brown assesses the contributions of the National Dialogue and Reconciliation process to transitional justice and peacebuilding in the Kenyan context—and the relationship between justice and peace. He argues that it is difficult to apply to Kenya traditional debates on the trade-offs between or complementarity of transitional justice and peacebuilding because there has not been a meaningful break with the past: suspected high-level perpetrators of large-scale violence have not been prosecuted and, in fact, several remain in positions of power. He suggests that the experience of Kenya serves as a cautionary tale for other countries, including on the dangers of adopting transitional justice mechanisms in the absence of a significant transition; the risk of entrenched elites sabotaging domestic justice mechanisms; the need for disarmament even in violent situations that fall short of civil war; and the vulnerability of victims.

The chapters in this book seek to explore relatively uncharted territory within the burgeoning fields of transitional justice and peacebuilding. Spanning decades and continents, the studies in this volume examine the interaction, and in some cases increased intertwining, of victim-centered approaches to justice and DDR programs. They document the challenges of pursuing both simultaneously, but also the pitfalls of failure to pursue justice, demobilization, and reintegration. As discussed in the conclusion, the lessons are complex, and in many cases potentially contradictory; there is much more research to be done. We hope, however, that the chapters that follow offer a contribution to important academic and policy debates.

Notes

1
 Neil J. Kritz, ed.,
Transitional Justice: How emerging democracies reckon with former regimes
(Washington, DC: United States Institute of Peace Press, 1995); Martha Minow,
Between Vengeance and Forgiveness: Facing history after genocide and mass violence
(Boston: Beacon Press, 1998); Chandra Lekha Sriram,
Confronting Past Human Rights Violations: Justice versus peace in times of transition
(London: Frank Cass, 2004); Sriram,
Globalizing Justice for Mass Atrocities: A revolution in accountability
(London: Routledge, 2005); Rama Mani,
Beyond Retribution: Seeking justice in the shadows of war
(Cambridge: Polity Press, 2002); and Ruti G. Teitel,
Transitional Justice
(New York: Oxford University Press, 2000).

2
 Report of the UN Secretary-General,
The Rule of Law and Transitional Justice in Conflict and Post-conflict Societies
(2004) para. 8.

3
 Naomi Roht-Arriaza, “The new landscape of transitional justice,” in Naomi Roht-Arriaza and Javier Mariezcurrena, eds,
Transitional Justice in the Twenty-First Century
(New York: Cambridge University Press, 2006), pp. 1–16.

4
 
This is emphasized in the most recent UN report on the subject. See
The Rule of Law and Transitional Justice in Conflict and Post-conflict Societies
, Report of the Secretary-General, UN Doc. S/2011/634 (12 October 2011), paras 11–12.

5
 Oliver Richmond,
The Transformation of Peace
(London: Palgrave, 2005); Roger MacGinty,
International Peacebuilding and Local Resistance: Hybrid forms of peace
(London: Palgrave, 2011).

6
 
An Agenda for Peace, Preventive Diplomacy, Peacemaking and Peace-keeping
(17 June 1992) UN Doc. A/47/277 – S/24111, para. 61.

7
 Elizabeth M. Cousens and Chetan Kumar,
Peacebuilding as Politics
(London: Lynne Rienner, 2001) p. 15; Chandra Lekha Sriram and Karin Wermester, eds,
From Promise to Practice: Strengthening UN capacities for the prevention of violent conflict
(Boulder, CO: Lynne Rienner, 2003); Stephen John Stedman, Elizabeth Cousens, and Donald Rothchild,
Ending Civil Wars: The implementation of peace agreements
(Boulder, CO: Lynne Rienner, 2001).

8
 GA Res. 60/180, UN GAOR, 60th Sess. UN Doc. A/Res/60/180 (30 December 2005) and UN SC Res. 1645, UN Doc. S/Res/1645 (20 December 2005).

9
 Sriram,
Confronting Past Human Rights Violations
, op. cit.; Wendy Lambourne, “Transitional justice and peacebuilding after mass violence,”
International Journal of Transitional Justice
, vol. 3 (2009), pp. 28–48; Chandra Lekha Sriram, “Transitional justice and the liberal peace,” in Edward Newman, Roland Paris, and Oliver P. Richmond, eds,
New Perspectives on Liberal Peacebuilding
(Tokyo: United Nations University Press, 2009), pp. 112–30; Gerhard Thallinger, “The UN Peacebuilding Commission and transitional justice,”
German Law Journal
, vol. 8 (2007), pp. 681–710, <
www.germanlawjournal.com/index.php?pageID=11&artID=844
>.