Transitional Justice and Peacebuilding on the Ground: Victims and Ex-Combatants (Law, Conflict and International Relations) (61 page)

Waldorf observes an increased emphasis at the UN, with the creation of the Integrated Disarmament, Demobilization and Reintegration Standards (IDDRS) in 2006, on integrating DDR programming with wider peacebuilding measures, which increasingly include transitional justice processes, and the subsequent inclusion of a transitional justice module in the IDDRS reinforces this trend. Waldorf argues that the work of Pablo de Greiff has been influential, particularly on the IDDRS, in suggesting that transitional justice and DDR have shared
linked goals, of building trust between ex-combatants and society and between victims and society. Sharp discusses the potential role that the UN Peacebuilding Commission may play in promoting integration or at least coordination of these processes. Other scholars have argued for more than coordination, suggesting that processes must be fused, or integrated.
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While there is scant evidence of such coordination, much less integration, as a matter of deliberate programming in-country to date, it is worth considering the opportunities and risks of a more coordinated or even integrated approach, based on what experience we have witnessed.

Opportunities

Coordinating victim-centered justice and DDR processes could allow for mutual reinforcement, provided appropriate incentive structures could be put in place. This might perhaps mitigate the seemingly zero-sum nature of each activity. How might this work in practice? One incentive, amnesties, is arguably off of the table; the IDDRS rule out amnesties based on their presumed inconsistency with international legal standards.
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In Colombia, combatants who had not committed crimes and had no criminal charges against them were granted amnesty, and those who were facing criminal charges were offered reduced sentences as incentives for demobilization. While blanket amnesties are inconsistent with international standards, the use of conditional amnesties might in some instances help to promote demobilization.

At the same time, prosecutions are likely to undermine demobilization, but is this always the case? Certainly, some members of armed groups may choose not to disarm out of fear of prosecution, as appears to have initially been the case in Sierra Leone. However, punitive, reintegrative, and reparative processes could be linked, to a degree. Where ex-combatants have engaged in serious abuses, it might be possible to promote acceptance of their return by victims and communities by linking reintegration to traditional justice activities. Truth commissions may provide an opportunity for ex-combatants who were perpetrators of serious abuses to apologize and seek forgiveness. Traditional justice, or what Waldorf terms “local justice,” might also enable perpetrators to engage victims and communities. Thus, in Northern Uganda, as Quinn discusses, and in Sierra Leone to a lesser degree, as Sriram discusses, some local communities, in some cases with support of international NGOs, have utilized local cleansing and other ceremonies to promote reintegration by former child combatants in particular. If former combatants provide the material for reparations, this might also enable their reintegration into communities. As the chapter by García-Godos explains, the Justice and Peace process in Colombia has linked demobilization of illegal armed groups to truth-seeking and reparations processes, and to a degree to accountability processes. Demobilized ex-combatants engage first into
versiones libres
to give an accounting of their crimes in relation to specific cases, providing a degree of truth to victims. In the judicial processes that follow, victims can also seek reparations from relevant perpetrators.

Risks

Of course, former combatants and entire armed groups may not accept the linkage of processes. This may be the case because they reject individually, or collectively, the stain of accusations of human rights violations, or because they simply reject the prospect of punishment. This has been the case in Colombia; some paramilitaries withdrew from the DDR process as amendments to the Law of Justice and Peace progressively altered its content, creating tighter linkages between transitional justice and DDR, but also imposing greater obligations upon armed groups.

Victims and victims’ groups might also reject the linkages. In Colombia, as García-Godos argues, many victims view the Law of Justice and Peace as one of impunity, designed to assist pro-government forces, and neither contributing to the end of conflict nor addressing victims’ rights. While there are arguments in favor of using traditional justice processes to both return former (largely child) combatants to communities and promote community and victim acceptance, there is also the risk that linking DDR, particularly longer-term reintegration, to victims may effectively instrumentalize victims, encouraging or socially coercing their acceptance of the return of some perpetrators for the sake of wider community reconciliation. In Sierra Leone, longer-term acceptance of the return of former combatants has been limited, and indeed the use of traditional mechanisms may merit skepticism, given wider criticisms that the latter have suffered, including their loss of legitimacy, abuses by practitioners, and lack of operation across communities. Integration of processes might also, as discussed above in the section on development, go one step further and include transitional justice, peacebuilding, and development activities in a single strategy. However, as Quinn argues, linking and carrying out transitional justice and peacebuilding processes simultaneously can be to the detriment of both.

With the creation of new institutions comes an increase in institutional complexity, and side-effects of that complexity. These may include delays: in Colombia while there have been many
versiones libres
given, many more have yet to be heard, and there have been few prosecutions or reparations hearings. And while the institutional apparatuses of transitional justice and DDR have grown alongside one another and are authorized by the same legal source in Colombia, according to García-Godos they have not necessarily been coordinated.

As Waldorf and many writing on DDR have observed, DDR programs tend to focus on short-term programs and are not generally successful at long-term reintegration. Indeed, he suggests, in line with other scholars, that reintegration might be better left to communities. This approach might be an opportunity or pose new risks. Development actors, working with governments and a range of peacebuilders, are likely to be engaged in supporting transitional justice activities and wider rule of law reform, support to affected communities, and reconstruction. Adding reintegration to their portfolios may enable the longer-term reintegration that has proven elusive and might allow for more integration between those activities and transitional justice activities. However, there is also a risk that such
an approach would generate the perception that there is a zero-sum competition amongst beneficiaries, and possibly for providers, between support to victims and communities and support to former combatants, or create incentives to promote reintegration over concerns of communities and victims.

What Should Transitional Justice and Peacebuilding Practitioners Consider When Considering Coordination and Integration?

Practitioners engaged in DDR and justice processes need to understand one another’s goals, tools, and constituents, prior to considering any degree of coordination, much less integration. Experience to date suggests that coordination has been relatively rare, and not necessarily strategic. Given the potential opportunities and risks noted above, those seeking to program these activities might want to assess the situation through a number of queries.

First, they should consider the likely responses of victims, ex-combatants, and affected communities alike to any linked processes. Ex-combatants, particularly those who have not perpetrated atrocities, may well resent and resist the linkage of DDR, and particularly reintegration to formal and informal processes that conflate them with perpetrators of serious crimes. Victims and communities, as well, may resent that their forgiveness is expected to facilitate return, i.e. that linking the two instrumentalizes those most harmed by past abuses.
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Second, practitioners considering using traditional or local mechanisms of justice or conflict resolution should carefully scope the appropriateness of these in the eyes of those expected to be involved. If such mechanisms are not appropriate because they and their practitioners have lost respect or legitimacy through the course of the conflict, or because they do not function well across communities, their effects will be limited.

Third, they should consider existing institutional capacity. This is more than simply the financial capacity to engage in DDR processes, particular reintegration, or transitional justice processes including trials, truth commissions, and/or reparations. It also refers to the institutional complexity created by developing such processes in tandem, as can be seen in the complex infrastructure operating in Colombia.

Timing and Sequencing

Any discussion of timing and sequencing in peacebuilding or transitional justice is inevitably fraught, as clearly no rigid ordering or timetable can be prescribed for a diverse set of situations. Further, any recommendations are necessarily limited by the fact that DDR will, for pragmatic reasons, generally have temporal and financial priority, even if justice processes are also being undertaken alongside conflict resolution efforts in some countries. At least the disarmament and demobilization (or DD) elements of DDR will usually be undertaken first, given the need to stabilize a country and implement a peace agreement. DDR processes have not been successful at promoting longer-term social reintegration, and
Waldorf may be right that this is best left to transitional justice processes. That said, there are serious temporal considerations that need to be addressed as DDR goes forward and justice processes are initiated. In reviewing the findings of the chapters, we could identify clear risks, but no clear opportunities, regarding timing and sequencing, so we only discuss risks and identify some guidance for practitioners.

Risks

Long delays between DDR and victim-centered justice can have deleterious effects. Clearly, even if DD must have temporal priority, the resentment felt by victims and communities as a result of long delays to reparations programs or truth-telling and justice processes can be limited if such processes are initiated relatively early. While, in Sierra Leone, the TRC and the Special Court began operation within a few years of the end of conflict, there remains skepticism about their effects on, or reception by, victims. The reparations process, by contrast, took place some nine years after the end of conflict. The apparent disparity between the rapid provision of DDR training and packages and delayed reparations can create resentment amongst victims. Further, victims who have suffered serious material harm may suffer further in the meantime, particularly where the harms they have suffered impede gainful employment or basic daily personal tasks.

However, these risks may be unavoidable. As some of the studies, such as those in Bosnia and Herzegovina and Sierra Leone, demonstrate, many victim-centered approaches to justice simply cannot be set up as quickly as DDR programs in the wake of conflict. It takes time to develop a mandate for a commission of inquiry, to appoint commissioners and other staff, and to develop operating procedures, even if sufficient funds are available, which may not be the case. Those seeking to create reparations processes must raise a budget, create a new institution or adapt and empower an existing one, create a victims’ registry, and develop procedures for distribution of funds. Programmers and analysts need realistic timeframes for the implementation of transitional justice mechanisms in general and victim-centered justice in particular; these are long-term processes. Processes of implementation may take longer than the usual three-to-five-year programming cycles of donors and international organizations.

What Should Transitional Justice and Peacebuilding Practitioners Consider When Considering Timing and Sequencing?

There is, however, a moral and practical dilemma: if victim-centered justice processes, particularly reparations programs, take significant amounts of time to implement, what can be done in the meantime? Humanitarian, peacebuilding, and development actors may well have to fill the gap with direct assistance. Their activities are unlikely to have a specific justice and/or reparations aspect, but nonetheless may be more timely than oft-delayed victim-centered processes.
However, it is worth noting that it does not appear to be the case that, as the saying goes, “justice delayed is justice denied.” Rather, demands for justice in a range of forms—truth-telling, trials, reparations—clearly remain active, even growing, long after the original atrocities occurred, as is evident in Cambodia, Bosnia and Herzegovina, and Lebanon.

Avenues for Further Research

The eight country studies in this volume represent a range of experiences—in type and duration of conflict or abuses; in geographic location; in international peacemaking, peacebuilding, and transitional justice intervention; and, temporally, in the global evolution of peacebuilding and transitional justice. Taken together, they illustrate the diversity of experiences, of successes and failures, in the pursuit of transitional justice and peacebuilding (and, in some countries, the virtual absence of one or both in any systematic sense, but with elements of each deployed). They are, however, not comprehensive. A number of questions arise from this study that might benefit from further systematic cross-country comparisons.

Transitional Justice Without Transition And “Atypical” Transitional Justice Or Peacebuilding

If there is such a thing as a “typical” set of peacebuilding and transitional justice processes, our country studies demonstrate how frequently reality deviates from the typical. At least three of our eight country studies cannot be properly characterized as involving peacebuilding, for a range of reasons. Kenya did not experience a violent conflict akin to a civil war, but rather brief and severe election-related violence, albeit with an internationally mediated agreement akin to a power-sharing peace agreement. It has not experienced an international peacebuilding presence, nor have militias involved in the violence been demobilized. It is difficult to argue that it has undergone a political or post-conflict transition. Yet it has had national debate about a range of transitional justice measures and is the subject of four ICC prosecutions. Colombia has undertaken a justice and peace process involving prosecutions, truth-telling, reparations, and DDR, all linked, and yet it is not clearly in a peacebuilding situation, given that conflict with the guerrilla group FARC continues and the demobilization process currently underway is with paramilitaries which were closely aligned with the government. Lebanon’s Ta’if accord accompanied the end of the conflict, but lacks common features of a peace agreement and has not been the subject of an international peacebuilding mission, while the major militia and political force Hezbollah was not disarmed. Yet a common tool of transitional justice, the internationalized criminal tribunal, is being deployed to address, not the legacies of the conflict, but several post-conflict assassinations. All of which begs the question: What difference do transitional justice mechanisms make, not only in peacebuilding contexts, but in situations where peacebuilding has not been pursued in the traditional
sense? Future research might examine the effects of pursuing transitional justice in the absence of transition and of pursuing transitional justice in the wake of conflict with and without peacebuilding measures.