Transitional Justice and Peacebuilding on the Ground: Victims and Ex-Combatants (Law, Conflict and International Relations) (9 page)

Given that the PCB is an intergovernmental advisory body that is in some ways remote from the realities of day-to-day operations, its ability to ensure that DDR and transitional justice initiatives are implemented in ways that exploit complementaries is in a sense compromised from the outset. At the same time, because the PBC stands to some extent “above the fray” of individual
implementing agencies and institutions, it has the ability to help set a larger agenda, including by mobilizing funding, which could help to increase the chances of better coordination on the ground. At the most basic level, articulating some of the policy shifts discussed above within a country’s strategic framework for peacebuilding would be one way of promoting a more integrated approach.

The Mantra of “National Ownership” and the Turn to the Local

One of the most intriguing ways in which the common goals of trust-building, prevention of renewed violence, and reconciliation might be served is by drawing upon local justice and reconciliation practices in both DDR and transitional justice programs.
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Such approaches have featured among the package of transitional justice initiatives implemented in a number of countries, including Rwanda, East Timor, Mozambique, Sierra Leone, and Uganda, and can combine elements of punishment, truth-telling, and reparations. Though practices vary widely, there is often also an emphasis on reconciliation, ritual, and restoring harmony to the community as a whole, concepts often associated with restorative justice. In Sierra Leone, for example, the non-governmental organization Fambul Tok (“Family Talk” in the local Krio language) has taken elements of truth and reconciliation commission practice and brought them down to the village level. As part of this process, communities spend months engaged in dialogue and truth-telling sessions, bringing former perpetrators and their victims together face to face. At the conclusion of these dialogues, the village as a whole performs a reconciliation ceremony based on rituals of its own choosing. In Mozambique, many former combatants were reintegrated into their villages through the use of ceremonies that included elements of ritual cleansing, confession, and reparation.
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In East Timor, the Community Reconciliation Process (CRP) combined elements of local justice, arbitration, and mediation in bringing perpetrators and former combatants into dialogue with their estranged communities. Sessions involved truth-telling and could result in some form of punishment such as community service and fines as a condition of reacceptance by the community.
⁵⁵

The incorporation of local practices into reintegration and reconciliation efforts presents a number of potential benefits, including familiarity and perceived legitimacy in the eyes of local populations, and relative accessibility and affordability. At the same time, drafting such highly context-specific practices into the service of national and international processes is an extremely complex issue. The incorporation of local justice practice and custom varies widely in terms of their association with the state and the formal justice system. As noted, the legitimacy of such practices and acceptance as genuine custom are often critical to their success. To take one example of the difficulties this can present, in Rwanda, the local dispute-settlement practice of
gacaca
has been modified and adopted at a national level to address justice and reconciliation issues that followed in the wake of the 1994 genocide. Many have noted that
gacaca
is now being used to address problems of a kind and scale for which it was not traditionally used, and has been
implemented in ways that, while they serve the interests of the Kagame government, may not fully serve the needs of community justice and reconciliation.
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As the Rwanda example shows, putatively local practices may therefore be subject to capture by and become subservient to larger political currents.
⁵⁷

At times, local justice practices can also be difficult to square with international principles because of low standards of evidence, insufficient protections for the rights of the accused, punishments that violate international human rights norms, or provisions that discriminate, particularly against women.
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There is also the risk that some victims may feel, or be, compelled to publicly forgive as part of such rituals, just as some perpetrators may feel, or be, compelled to confess.
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Given the challenges involved, integration of local practices into DDR and transitional justice programming in order to further reintegration and reconciliation in ways that maintain legitimacy in the eyes of community stakeholders, while at the same time addressing potential concerns of national and international policy makers, is a very delicate balancing act.

Local justice and reconciliation practices may therefore have much potential in both the DDR and transitional justice arenas, and especially as relates to the strongest areas of overlap between the two, reintegration and reconciliation, but they are no panacea. They need to be subjected to the same exacting scrutiny as other programmatic possibilities in the fields of DDR and transitional justice.
⁶⁰
Nevertheless, as the PBC works to bring stakeholders together and propose integrated approaches to DDR and transitional justice, it can play an important role in reminding all players of the possibility of building upon such practices and sharing experiences in this regard from other countries, both positive and negative. One might note in this respect that, at the highest policy levels, the UN has already embraced the notion that “due regard must be given to indigenous and informal traditions for administering justice or settling disputes,” even while it has also expressed reservations as to their compatibility with international human rights standards.
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Although what such “due regard” might entail has not yet been fully clarified at the level of UN practice and field operations, this could be one area where the PBC might help to develop a set of best practices out of the real-world scenarios on which it is focused. Beyond these local practices, the PBC can also rely on considerable expertise in more mainstream forms of transitional justice and DDR within the UN system and channel this knowledge to propose a tightly tailored package of initiatives in the individual country context.
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The end result could be a better reflection of each country’s historical experience with the implementation of context-specific mechanisms.

To take one example of what this might look like in practice, one can look to the DDR work that has been done in Burundi. Though the demobilization process is completed, like many DDR programs around the world, socio-economic integration has been identified as a key ongoing challenge.
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Failure with respect to reintegration is not without costs. During periods of the PBC’s involvement, crime and impunity have remained high in Burundi, in part as a result of “deviant soldiers” and poorly reintegrated former combatants.
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The PBC has recently committed itself as one of four “entry points” for its future engagement
to support implementation of transitional justice initiatives in Burundi.
⁶⁵
Though it may be too late to dovetail transitional justice and DDR from the outset, careful attention to the policy shifts discussed above and the potential use of local custom to foster community-level reconciliation might be one way to further reintegration of former combatants on the back end. Greater integration of the “local” with respect to both DDR and transitional justice in Burundi could also be one way of putting some weight behind the idea of “national ownership,” a virtual mantra in many PBC documents.

At the same time, the case of Burundi illustrates one of the complexities inherent in the notion of “national ownership.” In particular, what should the PBC do when elements of its strategic framework for peacebuilding no longer have the full support of the national government, as appears to be the case with transitional justice in Burundi, even while there is general support among ordinary citizens for truth and justice mechanisms?
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In such instances, how does one determine whether a peacebuilding framework is “nationally owned,” and what balance should the PBC attempt to strike between viable and independent transitional justice mechanisms and the likely realities of pushing a national government to implement initiatives that it may not fully support? Given the apparent lack of political will on the part of the government to engage in aspects of retributive justice at present, victim-centered restorative justice approaches, based at least in part on local ritual, may be one of the only options available in the near term. Such dilemmas offer no easy answers, and one should not be overly sanguine about the ability of any international institution, including the PBC, to thread the needle that might stitch together victim’s rights, international standards, local traditions and ownership, and political reality. These challenges may ultimately demonstrate the continued relevance to peacebuilding of local NGOs and community groups and their own innovative attempts to fill the gaps arising out of the limits and politics of intergovernmental organizations and national governments.

Conclusions

The PBC was created in large part in order to develop more coherent and coordinated responses to the serious challenges faced by fragile states in the post-conflict context. Integration, of course, is not an end in and of itself, but must be pursued only insofar as common goals are advanced, tensions mitigated, and duplication of effort avoided. Transitional justice mechanisms and DDR programs share a number of common goals, including trust-building, prevention of renewed violence, and reconciliation. Even though the possibility for tensions between them cannot be entirely eliminated, careful attention to sequencing and coordination can help minimize frictions. The UN has in recent years taken strides in recognizing the need for both fields to speak to each other in ways that better serve to lay the foundations for long-term peace. While it has clearly expressed the need for greater linkages between the two, there are as yet few examples in practice to draw from, and existing mechanisms for coordination may be insufficient for many circumstances.

It is too early to say how well the PBC will fare in practice as symphony conductor in attempting to ensure that these two pillars of post-conflict peacebuilding do not operate on entirely separate tracks, as has most often been the case in the past. We do know, however, that, in assessing the PBC’s work thus far, its marks for coordination in general have been rather low.
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The PBC needs to take a stronger leadership role in crafting and proposing creative and integrated solutions to the world’s most vexing peacebuilding challenges. In this, while much of the coordination and funding may be international, much of the wisdom and best practices will be local. The challenge for the PBC is to help chart a course consistent with international human rights standards, but in tune with the cultural, political, and socio-economic realities of individual post-conflict states. Going forward, developing better coordinated approaches to DDR and transitional justice that advance the common goals of each would be one way for the PBC to begin to live up to the aspirations and vision behind its creation.

Notes

1
 A More Secure World: Our Shared Responsibility; Report of the Secretary General’s High-level Panel on Threats, Challenges, and Change, UN Doc A/59/565 (2 December 2004), para. 261, available at <
www.un.org/secureworld
>, accessed 7 June 2011.

2
 Liliana Lyra Jubilut, “Towards a New Jus Post Bellum: The United Nations Peacebuilding Commission and the Improvement of Post-Conflict Efforts and Accountability,”
Minnesota Journal of International Law
, vol. 9 (2011), p. 31.

3
 See generally 2005 World Summit Outcome, UN Doc. A/RES/60/L.1 (16 September 2005), available at <
www.un.org/summit2005/documents.html
>, accessed 7 June 2011.

4
 United Nations General Assembly Resolution 60/180, UN Doc. A/RES/60/180 (30 December 2005); United Nations Security Council Resolution 1645, UN Doc. S/RES/1645 (20 December 2005).

5
 Quoted in Erin McCandless, “Lessons from Liberia: Integrated Approaches to Peacebuilding in Transitional Settings,” Occasional Paper 160, Institute for Security Studies (2008), p. 2.

6
 Ibid.

7
 See Chandra Lekha Sriram, Olga Martin-Ortega, and Johanna Herman, “Promoting the Rule of Law, From Liberal to Institutional Peacebuilding,” in Chandra Lekha Sriram, Olga Martin-Ortega, and Johanna Herman (eds),
Peacebuilding and Rule of Law in Africa
(New York: Routledge, 2010), p. 9.

8
 Johan Galtung, “Violence, Peace and Peace Research,”
Journal of Peace Research
, vol. 6, no. 3 (1969), pp. 167–91.

9
 Strategic Framework for Peacebuilding in Burundi, UN Doc. PBC/1/BDI/4 (22 June 2007), p. 1, available at <
www.un.org/peace/peacebuilding/pbc-countrymtgs.shtml
>, accessed 7 June 2011.

10
 Review of the United Nations Peacebuilding Architecture, UN Doc. A/64/868-S/ 2010/393 (21 July 2010), para. 51, available at <
www.un.org/peace/peacebuilding/review
. shtml
>, accessed 7 June 2011.

11
 See, e.g., Rob Jenkins, “Re-engineering the UN Peacebuilding Architecture,” Working Paper, The Future of the Peacebuilding Architecture Project, Center for International Policy Studies, University of Ottowa (2010).

12
 United Nations Security Council Resolution 1645, op. cit., para. 2.

13
 Chandra Lekha Sriram, Olga Martin-Ortega, and Johanna Herman, “Evaluating and Comparing Strategies of Peacebuilding and Transitional Justice,” JAD-PbP Working Paper Series No. 1 (May 2009), p. 5.

14
 See generally, Neil Kritz,
Transitional Justice: How Emerging Democracies Reckon with Former Regimes, Volume I. General Considerations
(Washington: United States Institute of Peace, 1995).