Transitional Justice and Peacebuilding on the Ground: Victims and Ex-Combatants (Law, Conflict and International Relations) (6 page)

10
 Luc Huyse, “Amnesty, truth or prosecution,” in Luc Reychler and Thania Paffenholz, eds,
Peacebuilding, A Field Guide
(Boulder: Lynne Rienner, 2001).

11
 
The Rule of Law and Transitional Justice in Conflict and Post-conflict Societies
(2004), op. cit., para. 2.

12
 Huyse, “Amnesty, truth or prosecution,” op. cit., p. 325.

13
 Priscilla B. Hayner,
Unspeakable Truths: Confronting state terror and atrocity
(New York: Routledge, 2001), p. 28.

14
 Chandra Lekha Sriram and Youssef Mahmoud, “Bringing security back in,” in Thomas Biersteker, Peter Spiro, Chandra Lekha Sriram, and Veronica Raffo,
International Law and International Relations: Bridging theory and practice
(London: Routledge, 2006), p. 223.

15
 
Set of Principles to Combat Impunity
(latest update) at UN Doc. E/CN.4/2005/102/Add. 1 (8 February 2005).

16
 Stef Vandeginste and Chandra Lekha Sriram, “Power-sharing and transitional justice: A clash of paradigms?”
Global Governance
, vol. 17, no. 4 (October 2011); Ellen Lutz, “Transitional justice: Lessons learned and the road ahead,” in Roht-Arriaza and Mariezcurrena, eds,
Transitional Justice in the Twenty-first Century
, p. 330.

17
 Vandeginste and Sriram, “Power-sharing and transitional justice,” op. cit.; Chandra Lekha Sriram and Johanna Herman, “DDR and transitional justice: Bridging the divide?”
Conflict, Security, and Development
, vol. 9, no. 4 (December 2009), pp. 455–74.

18
 Report of the UN Secretary-General,
The Rule of Law and Transitional Justice in Conflict and Post-conflict Situations
(2011), paras 16–17.

19
 Koen De Feyter
et al
., eds,
Out of the Ashes: Reparation for victims of gross and systematic human rights violations
(Antwerp and Oxford: Intersentia, 2005); Pablo De Greiff, ed.,
The Handbook of Reparations
(Cambridge: Cambridge University Press, 2006).

20
 United Nations General Assembly Resolution 147, UN GA, 60th Session, UN Doc. A/RES/60/147 (2005),
Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law
. To be referred to as the
Basic Principles
.

21
 For a more detailed discussion of each of these tracks, see Jemima García-Godos, “Victim reparations in transitional justice: What is at stake and why,”
Nordic Journal of
Human Rights
, vol. 26 (2008), pp. 111–30. Developments in international law supporting this trend include also jurisprudence and court sentences, such as the influential
Velásquez-Rodríguez v Honduras
decision by the Inter-American Court of Human Rights in 1988, which identified a “right to truth.” See: <
www.corteidh.or.cr/docs/casos/articulos/seriec_04_ing.pdf
>.

22
 Dinah Shelton, “The United Nations Draft Principles on Reparations for Human Rights Violations: Context and content,” in Koen De Feyter
et al
., eds,
Out of the Ashes
, op. cit.,p.20.

23
 García-Godos, “Victim reparations,” op. cit., p. 116.

24
 Conor McCarthy, “Reparations under the Rome Statute of the International Criminal Court and reparative justice theory,”
International Journal of Transitional Justice
, vol. 3 (2009), pp. 250–71. McCarthy uses the term “reparative justice” to refer to what is commonly known in the literature as “restorative justice.” For a discussion of ‘reparative justice’ as a concept that emphasizes the “the principle of reparation, as the origin and core of the need for justice in times of violent and brutalizing transition,” see Rama Mani, “Reparations as a component of transitional justice: Pursuing ‘reparative justice’ in the aftermath of violent conflict,” in Koen De Feyter
et al
., eds,
Out of the Ashes
, op. cit., pp. 53–82.

25
 Elisabeth Baumgartner, “Aspects of victim participation in the proceedings of the International Criminal Court,”
International Review of the Red Cross
, vol. 90 (2008), issue 870, pp. 409–40; Mina Rauschenbach and Damien Scalia, “Victims and international criminal justice: A vexed question?,”
International Review of the Red Cross
, vol. 90 (2008), issue 870, pp. 441–59; Ralph Henham, “Some reflections on the role of victims in the international criminal trial process,”
International Review of Victimology
, vol. 11 (2004), pp. 201–24.

26
 Ronald L. Cohen, “Provocations of restorative justice,”
Social Justice Research
, vol. 14 (2001), pp. 209–32.

27
 Pamela Blume Leonard, “An introduction to restorative justice,” in Elisabeth Beck
et al
., eds,
Social Work and Restorative Justice. Skills for dialogue, peacemaking and reconciliation
(Oxford: Oxford University Press, 2011), pp. 31–63. For foundational works of restorative justice, see Nils Christie, “Conflict as property,”
British Journal of Criminology
, vol. 17 (1977), pp. 1–15; John Braithwaite,
Crime, Shame, and Reintegration
(Cambridge: Cambridge University Press, 1989).

28
 For this understanding and practice of restorative justice, see <
www.restorativejustice.org
> for the USA-based Restorative Justice Online network and <
www.euforumrj.org
> for the European Forum for Restorative Justice. Both sites last accessed 31 October 2011.

29
 Blume Leonard, “Introduction to restorative justice,” op. cit., p. 48.

30
 See generally Scott Straus and Lars Waldorf, eds,
Remaking Rwanda: State building and human rights after mass violence
(Madison: University of Wisconsin Press, 2011).

31
 This does not mean that the risk of re-traumatizing victims is not present in restorative justice, although restorative justice professionals are possibly more aware of this problem.

32
 Lambourne, “Transitional justice and peacebuilding,” op. cit.

33
 Pablo De Greiff, “Justice and reparations,” in Pablo De Greiff, ed.,
The Handbook of Reparations
, pp. 451–77, 464. To be clear, we do not assume that victims’ interests and demands are homogeneous.

34
 Mark A. Drumbl,
Atrocity, Punishment, and International Law
(Cambridge: Cambridge University Press, 2007), pp. 94–97.

35
 Stovel and Valiñas, “Restorative justice after mass violence,” p. 31. Some argue that reintegrative shaming is effective in more “traditional” communitarian societies. See Braithwaite,
Crime, Shame, and Reintegration
, op. cit.

36
 Chandra Lekha Sriram, “(Re)building the rule of law in Sierra Leone,” in Chandra Lekha Sriram, Olga Martin-Ortega, and Johanna Herman, eds,
Peacebuilding and Rule of Law in Africa: Just peace?
(London: Routledge, 2011).

37
 Roland Paris,
At War’s End: Building peace after civil conflict
(Cambridge: Cambridge University Press, 2004); Richmond,
The Transformation of Peace
; Roger MacGinty,
International Peacebuilding and Local Resistance: Hybrid forms of peace
(London: Palgrave 2011).

38
 
Report of the Secretary General on Disarmament, Demobilization and Reintegration
, UN Doc. A/60/75 (2 March 2006), para. 9b.

39
 See, e.g., the chapters by Sriram and Waldorf in this volume.

40
 
United Nations Integrated Disarmament, Demobilization, and Reintegration Standards
(2006 and as periodically expanded and updated), available at <
www.unddr.org/iddrs/framework.php
>.

41
 Robert Muggah, “Innovations in disarmament, demobilization and reintegration policy and research: Reflections on the last decade,”
NUPI Working Paper 774
(Norwegian Institute of International Affairs, 2010), available at
http://english.nupi.no/Publications/
Working-Papers/2010/Innovations-in-disarmament-demobilization-and-reintegration-policy-and-research
.

42
 We discuss these issues further in the conclusion to this volume.

43
 Roger Duthie, “Toward a development-sensitive approach to transitional justice,”
International Journal of Transitional Justice
, vol. 2 (2008), pp. 292–309.

44
 Distributive justice is understood here as a form of justice that takes into consideration the socio-economic and political forms of distribution and access to power and resources in any given society. Roger Duthie, ibid.; Lambourne, “Transitional justice and peacebuilding,” op. cit., p. 28; Chris Huggings, “Linking broad constellations of ideas: Transitional justice, land tenure reform, and development,” in Pablo De Greiff and Roger Duthie, eds,
Transitional Justice and Development: Making connections
(New York: Social Science Research Council, 2009).

45
 Pablo De Greiff, “Articulating the links between transitional justice and development: justice and social integration,” in De Greiff and Duthie, eds,
Transitional Justice and Development
, pp. 28–75; Knut Andreas O. Lid and Jemima García-Godos, “Land restitution in the Colombian transitional justice process,”
Nordic Journal of Human Rights
, vol. 28 (2010), pp. 262–88.

46
 This is discussed in Quinn’s chapter in this volume.

47
 The situation in Lebanon is of course unique in that accountability measures do not pertain to international human rights law or international humanitarian law violations. See chapters by Sriram on Lebanon, Martin-Ortega on Bosnia, and Herman on Cambodia in this volume; see also Chandra Lekha Sriram, Olga Martin-Ortega, and Johanna Herman, “Justice delayed? Internationalised criminal tribunals and peacebuilding in Lebanon, Bosnia and Cambodia,”
Conflict, Security, and Development
, vol. 11, no. 3 (July 2011), pp. 335–56.

48
 Alexander L. George, “Case studies and theory development: The method of structured, focused comparison,” in P. G. Lauren, ed.,
Diplomacy: New approaches in history, theory, and policy
(New York: Free Press, 1979), pp. 43–68.

Part I

Critical Themes

  2
Bridging the Gap: The United Nations Peacebuilding Commission and the Challenges of Integrating DDR and Transitional Justice

Dustin Sharp

Introduction

While peacebuilding is a long-term and complex endeavor, a cacophony of actors and agendas, together with a persistent tendency to focus on short-term needs at the expense of long-term priorities, stymie efforts to build lasting peace. Complex problems call for innovative and integrated interventions. The staples of post-conflict peacebuilding—including: disarmament, demobilization, and reintegration (DDR); security sector reform (SSR); rule-of-law initiatives; and transitional justice mechanisms ranging from prosecutions to truth commissions—are meant to serve overlapping constituencies and common purposes. In practice, however, such initiatives have often operated on separate tracks, leading to redundancy, avoidable tensions, and lost opportunities.

This chapter focuses on the special challenges that arise out of the need to develop more integrated approaches to DDR and transitional justice and argues that the United Nations Peacebuilding Commission (PBC) must play a stronger role in bringing together this and other pieces of the post-conflict puzzle. Even though the possibility of tension between transitional justice mechanisms and DDR programs cannot be eliminated, careful attention to areas of overlap should be part of innovative and integrated approaches to post-conflict peacebuilding going forward in order to advance common goals. The gains of such an approach would be modest, but worthwhile.

This chapter begins by describing the rationale behind the creation of the PBC and outlining its general functions and responsibilities. After exploring transitional justice and DDR in the UN system more generally, I discuss the particular challenges that the PBC faces in attempting to craft integrated approaches to both areas. Finally, I argue that one means of implementing a more integrated approach to DDR and transitional justice could be through the use of local justice and reconciliation practices, examining the particular example of Burundi. While such practices are no panacea, they could help to bridge an important peacebuilding gap.

Closing a “Key Institutional Gap”
¹

The gap between the needs of communities recovering from conflict and the ability of the international community to tailor a coordinated response may contribute to a relapse into conflict. Understanding and confronting this gap has been part of a difficult learning curve that began with the rapidly escalating United Nations (UN) involvement in post-conflict efforts in the early 1990s with the end of the Cold War and accompanying deadlock in the United Nations Security Council.

As the Security Council became increasingly willing to intervene in conflict and post-conflict environments, traditional peacekeeping actions—in which neutrality, consent, and minimum force were considered paramount—soon gave way to complex and multidimensional initiatives. The broadening of mandates and obligations of peacekeeping missions to include significant elements of peacebuilding was not met with a corresponding evolution of the UN’s institutional doctrine or structure, leading to redundant and
ad hoc
efforts, and a lack of coordination.
²
With involvement in increasingly complex post-conflict initiatives seemingly inevitable, the need for a better institutional framework to address past failings and future challenges became clear.

The United Nations Peacebuilding Commission (PBC) was created in 2005 and tasked with playing a critical role in bringing together pieces of the post-conflict puzzle. Together with the Human Rights Council, the PBC was one of the most significant initiatives to come out of the 2005 World Summit.
³
In recognition of the challenges facing peacebuilding activities, both the United Nations Security Council and General Assembly emphasized the need for a “coordinated, coherent, and integrated approach to post-conflict peacebuilding and reconciliation,” and gave the PBC a mandate to advise on and propose integrated strategies.
⁴
In addition, the PBC is further tasked with helping to marshal resources for peacebuilding programs, thereby bridging the gap between short-term deficits and the need for longer-term strategies in the post-conflict context, and otherwise keeping the spotlight on challenges and country situations that could be all too easily forgotten.