Transitional Justice and Peacebuilding on the Ground: Victims and Ex-Combatants (Law, Conflict and International Relations) (60 page)

Development and Transitional Justice in Peacebuilding Contexts

Although transitional justice and development activities have not historically been officially linked, they inevitably affect one another. Scholars and practitioners of transitional justice have increasingly scrutinized this connection.
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They do so not least because transitional justice activities, like the conflicts they often follow or accompany, frequently occur in countries with significant development needs and
external development involvement. According to the Human Development Index for 2011, which ranks 187 countries and territories, four of the countries examined in this volume are among those with “low human development” (Kenya, Uganda, Sierra Leone, Liberia), that is, countries with low rankings in terms of basic aspects of human development: health, knowledge, and income.
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Taking inequality into account, Colombia joins Cambodia in the medium human development category, while Lebanon and Bosnia and Herzegovina are ranked among countries with high levels of human development.
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A common feature of most of the countries studied in this volume is the poverty and deprivation that a great majority of the population experiences in their everyday lives. When people struggle to meet their most basic needs, often aggravated by previous or current situations of armed conflict, displacement, and discrimination, the pursuit of public policies on transitional justice and peacebuilding may seem, for many, naive or idealistic. How can transitional justice and peacebuilding objectives and programs take into account the multifaceted challenges of poverty and inequality in which they so often have to be implemented?

In the introduction to this volume, we discussed the need for practitioners to be aware of the national and local contexts in which accountability mechanisms are to be applied and to recognize the relationship between transitional justice goals and national development objectives and policies. We also called for caution regarding the limits of transitional justice mechanisms, which are designed primarily to address past human rights violations, and which may not necessarily be either sufficient or appropriate to address structural inequalities. However, there may yet be some opportunities to constructively link development, transitional justice, and peacebuilding.

Opportunities

The participation of civil society in decision-making processes affecting the lives of local populations is of vital importance for rights-based development.
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The implementation of transitional justice mechanisms and peacebuilding measures may raise awareness about accountability and victims’ rights in general, providing civil society actors and victims’ organizations with the necessary tools (discursive, juridical, administrative) to frame demands and assert rights. These processes can be observed in a great variety of settings and take different forms. In Colombia, the largest victims’ movement developed in response to the Justice and Peace Law of 2005. In Cambodia, the establishment of the Extraordinary Chambers in the Courts of Cambodia (ECCC) and the inclusion of victims in the proceedings were accompanied by the creation of a Victims Support Section which is tasked to develop non-judicial measures that can be awarded as moral and collective reparations. These measures are to be developed in cooperation with civil society organizations and victims’ groups, who seized this opportunity to frame victims’ rights.

Linking development policies to transitional justice and peacebuilding activities may allow for more efficient use of scarce resources. In post-conflict societies,
limited pools of trained staff, infrastructure, and funds may be strained by the creation of new and often parallel institutions specifically designed for transitional justice and/or peacebuilding activities. Using existing institutions to pursue transitional justice activities could alleviate the pressure on resources and might also contribute to the sensitization of officials in state bureaucracies regarding accountability and victims’ rights. In Colombia, the national development agency
Acción Social
was tasked with providing assistance to the internally displaced people through the National System for the Attention of Displaced Population.
Acción Social
is a national institution operating across the country with professional staff, infrastructure, and partnerships with other national and local institutions. It is also well known among civil society actors and local populations, and thus recognizable among beneficiary groups such as victims’ organizations and representatives. While it was originally obliged to provide this assistance following a sentence by the Colombian Constitutional Court declaring the situation of the internally displaced as “an unconstitutional state of affairs,”
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Acción Social
was well-placed, based on this experience, to support the establishment of the national victim reparations program envisaged by the new Victims’ Law of 2011. The government has thus transformed it into the Department for Social Prosperity to assume the new task. In a more limited example, in Sierra Leone, the National Commission for Social Action (NaCSA) was tasked with delivering victim reparations which were provided by the international community; international actors provided funds to build the capacity of NaCSA to develop the victims’ registry as well.

Low- and middle-income countries use national development plans and poverty reduction strategies as a central policymaking tool. Such plans and strategies may, and in some cases do, include transitional justice and peacebuilding activities. Such activities, which include accountability for past human rights violations and the reintegration of former combatants, are expected by some programmers and analysts to promote the consolidation of the rule of law, the (re)establishment of civic trust, and the reinforcement of public security. National development strategies might be designed with these concerns in mind, promoting mechanisms that facilitate access to justice, reform of security policies, or coordination between public services and victim reparations programs. Unfortunately, while it is possible to identify potential synergies, good practices in this area are still scarce. As Quinn discusses in the context of Uganda and as discussed below, the inclusion of transitional justice and peacebuilding measures in development policies may not produce positive results.

Risks

Uganda’s attempt to combine a range of activities through comprehensive development policies seems to be more a response to pressures from international donors than a serious attempt to consider the implications and requirements of each area: transitional justice, peacebuilding, poverty, and development. States may find it challenging to meet the demands of donors and international
organizations to address development needs, accountability, and peacebuilding simultaneously. This may heighten the challenges that national implementing agencies often have with complex reporting procedures and benchmarks. In Uganda, limited capacity combines with limited political commitment to address the needs of the people in Northern Uganda, in which a situation of armed conflict persists. Uganda’s incorporation of transitional justice and peacebuilding in national development plans watered down both transitional justice and peacebuilding activities, according to Quinn. However, it may be the case that development goals should take priority over accountability or peacebuilding measures.

Accountability for past atrocities can strain development activities, including the promotion of the ordinary rule of law, particularly where the national judicial system is tasked with prosecution of mass human rights violations or war crimes. In Bosnia, significant resources have been provided to the state-level War Crimes Chamber. However, local courts (at entity level) also have jurisdiction over war crimes. Some argue that police, prosecutorial resources, and court time have been diverted from the investigation and adjudication of ordinary crimes.

Possibly the most serious risk regarding the implementation of transitional justice and peacebuilding mechanisms is not so much what is done; the gap is, rather, between what governments and donors promise and what victims expect, and what is delivered. As Raddatz argues with respect to the experience of Liberia, it is necessary to temper great expectations. Practitioners create expectations for, and victims often demand, a range of outcomes, from truth to criminal accountability, to memorials, to reparations, to reconciliation. In practice, however, practitioners must make pragmatic decisions regarding resources, including allocation of reparations and provision of other, non-monetary compensation.

Transitional justice is not a panacea for all of the social problems that societies in transition might experience. While transitional justice practitioners must be aware of wider demands for distributive justice, particularly given that mal-distribution of wealth and land may have been the cause and/or the consequence of earlier conflict and abuse, the tools of transitional justice are not necessarily suited to address structural inequalities. Structural inequalities might be addressed through agrarian reform or redistribution, often the recommendations of commissions of inquiry, but these proposals are seldom implemented. They may nonetheless raise expectations, and processes that do not deliver on such expectations may weaken the delicate links of trust between local populations and victims’ groups, and governments.

What Should Transitional Justice and Peacebuilding Practitioners Consider When Addressing Development-Related Issues?

Committed as we are to accountability, justice, and peace, it may be difficult for academics, practitioners, and human rights advocates to recognize that victims may not prioritize criminal accountability or a truth commission report. Victims
may instead prioritize finding a job, securing food and healthcare, or taking care of a disabled relative. Thus it is essential to be clear about who the victims of past human rights violations are, what types of victimhood they have experienced, and what their current needs are. The situation of amputees in Sierra Leone illustrates this clearly. The loss of a limb (or more) creates a permanent disability affecting a person’s quality of life for the duration of her life, affecting her ability to perform private functions such as personal hygiene, to take care of children, to cook, or to secure and perform a paying job. In such a situation, lump-sum cash payments, such as the US $100 reparations grant provided in Sierra Leone, are ill-suited for individuals with long-term needs, not only amputees but also victims of debilitating trauma. Such victims are likely to require longer-term, sustained support, and indeed one-off payments may falsely raise hopes among victims that they will receive regular payments. The sense of abandonment that victim communities often already experience might be increased by unfounded expectations, risking a kind of double victimization.

Victim reparations provide acknowledgement of violations, and there are many forms of reparation. While certain groups of victims may need monetary compensation, many transitional societies facing poverty and development challenges will only be able to provide limited reparations. A combination of individual reparations and collective reparations in the form of services might provide a variety of measures that may at least partly fulfill the needs and interests of victims and might be compatible with development-oriented policies and programs. Specific groups of victims can be provided services such as health and educational programs, housing support, access to justice, restoration of personal documents, and legal support. Collective reparations could be provided either in material and symbolic forms, such as support for a community house, or in the creation of sites of memory and commemoration. Educational curricula and civic education processes can promote understanding and memory of the past, and institutional reforms can help to guarantee non-repetition of abuses. Collective reparations can have an impact on victims beyond those that have taken part in an accountability process, and may be particularly important in countries with a large number of victims. National agencies frequently implement such programs, although the sources of funding may be national, as in Colombia, or largely international, as in Sierra Leone.

Coordination and Integration

Discussions of coordination and integration in the context of peacebuilding and transitional justice often turn upon coordination of international and bilateral actors, who frequently bring different priorities or agendas to the work, or do not seek to coordinate efforts, taxing local absorptive capacities. Here, however, we have been concerned with a different order of coordination—between or amongst the various activities of peacebuilding and transitional justice themselves, with a particular eye on measures that seek to address needs and demands of victims, and measures that seek immediate DDR and longer-term reintegration of former
combatants. Some chapters also considered whether, beyond simple coordination, these activities can or should be more tightly integrated with one another.

However, the chapters in this volume illuminate a range of challenges for any coordination or integration of DDR processes with victim-centered justice. There are evident tensions between victim-centered justice and DDR. Nonetheless, such processes often operate in close proximity to one another—they often operate in the same territory, at the same time, and involve some of the same programmers and/or beneficiaries. They may also involve overlapping sets of service providers—state, international, or local. Thus, it is worth asking: Could these activities be coordinated with one another, or even integrated?

In many of the country studies in this volume, justice processes and DDR have clearly not been coordinated, and have often either been in tension with one another or not occurred contemporaneously. For example, in Cambodia, the ECCC process was initiated decades after the original violence, and after relevant peace agreements and peacekeeping/peacebuilding processes under the United Nations Transitional Authority in Cambodia (UNTAC). In Bosnia, the initial accountability processes at the International Criminal Tribunal for the Former Yugoslavia (ICTY) were active alongside peacebuilding in the country temporally, but not geographically; the local hybrid War Crimes Chamber began work significantly later. In Lebanon, DDR activities never disarmed a key fighting and political force, Hezbollah, and the only accountability process currently in place does not address past abuses that took place during the conflict. Kenya did not experience a traditional armed conflict, and no traditional peacebuilding process was put in place. DDR was also not put into place, and militias remain armed; in such a context accountability processes, particularly the involvement of the ICC, appear popular in polls but their deeper impact on victims or the wider society remains to be seen. In Sierra Leone, reparations were initiated many years after the completion of the DDR process, leaving the perception amongst victims that former combatants, many of whom were also perpetrators of serious abuses, were given priority by the international community; at the same time prosecutions at the Special Court of Sierra Leone (SCSL) appeared initially to be an impediment to DDR. In Liberia as well, victims may have gained little from the much-criticized Truth and Reconciliation Commission (TRC), while former combatants received the benefits of DDR training and packages. In all of these situations, processes of victim-centered justice or DDR either were absent or, where both were present, were often in tension or at least were not designed to communicate with one another. So, should DDR and victim-centered approaches to justice be coordinated, or even integrated?