Transitional Justice and Peacebuilding on the Ground: Victims and Ex-Combatants (Law, Conflict and International Relations) (11 page)

The second part analyzes three particularly significant aspects of judicial interventions in ongoing conflict. First, the move towards judicial interventions in ongoing conflict is anchored in a consequentialist logic that has generated increasingly strident demands for empirical evidence of TJ claims. Yet, in part because of the complex and indeterminate causal pathways of such claims, robust empirical evidence is still lacking. Second, the internationalization of transitional justice has created significant tensions between international and local agency. Yet, the problematic effects of international judicial pressures are also
exacerbated by local institutional fragility and by attempts to implement TJ in highly inhospitable conditions, including in the absence of any discernible political transition. Third, the dominance of legal and judicial approaches to TJ has tended to privilege retributive forms of justice in ways that often are not conducive to conflict resolution or political and societal reconciliation. But the judicialization of TJ also runs the risk of obfuscating politics in ways that almost invariably benefit elite interests.

The final part of the chapter attempts to move beyond the current theoretical and policy impasse by outlining a proposal for a (possible) way forward that emphasizes the complexity inherent in the field of TJ. It also provides brief reflections on the contours of a prudent, incremental, and politically attuned strategy of TJ engagement with ongoing conflict.

I. The Expansion of Transitional Justice

The trend towards judicial intervention in ongoing conflicts is relatively recent.
¹
In the modern period, TJ developed as a field of theory and practice concerned with questions of truth, justice, and reconciliation in the context of political regime change: from military regimes to electoral democracy in South America; following the fall of communist regimes in Eastern Europe; and at the end of civil war in Central America. From these beginnings TJ has dramatically expanded both in terms of geographical coverage and in terms of normative ambitions. The hugely increased normative ambitions of TJ are nowhere more apparent than in practices of judicial intervention in situations of ongoing conflict. The intervention of the International Criminal Court (ICC) in Libya is but the most recent reflection of the emergence of the ICC as a key actor on the contested terrain of conflict resolution. As a result, there has been a discernible shift from the pursuit of accountability strategies after the cessation of armed hostilities on the one hand, and in the aftermath of political transitions on the other, to attempts to achieve accountability for atrocities even before a political settlement of armed conflict has been reached.

The practice of international judicial interventions in ongoing conflicts can be traced back to the beginning of the 1990s and the establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY). The United Nations Security Council (UNSC) resolution that established the ICTY was adopted in the midst of ongoing conflict in Bosnia and before the start of peace negotiations at Dayton. Yet, the ICTY issued only few indictments during the armed conflict itself and cases only came to trial after the end of the war. Instead, the first significant attempt to pursue justice during ongoing conflict came with the indictment of Slobodan Milosevic during the NATO bombing of Kosovo. But, the pursuit of justice during ongoing conflict has become increasingly contentious since the adoption of the Rome Statute and the creation of the ICC. The ICC’s temporal jurisdiction that limits potential prosecution to crimes committed after 1 July 2002 has pushed the Court and the ICC Prosecutor towards engaging with ongoing conflicts.
²
The increasing number of ICC indictments and
investigations in recent years has led to the close involvement of international criminal justice in ongoing conflicts in Uganda, the Democratic Republic of the Congo, Sudan, Kenya, Colombia, and, most recently, Libya.

1. Contemporary Conflict and Transitional Justice

The creation of the ICC represents a dramatic shift in the global accountability regime. While under the “Nuremberg model” the militarily victorious parties used their power to pursue justice after the cessation of conflict, under the “Rome model” interventions are undertaken by third-party judicial actors. As a consequence of this shift, judicial interventions are initiated not following military victories, but rather during ongoing conflict. Two main underlying trends underpin and drive these developments: the intractability of contemporary armed conflict; and the dramatic expansion of the international legal architecture.

Character of Contemporary Armed Conflict

There has been a discernible shift from the industrialized total warfare of the first half of the twentieth century, to contemporary forms of low-intensity conflict in conditions of state breakdown. Interstate warfare, as part of foreign policy and with distinct lines between state, army, and society, has lost much of its institutional character. Wars have in this sense become more irregular, a trend further accentuated by the privatization of much contemporary warfare.
³
This can especially be seen in the division between civilians and soldiers. In contemporary warfare, uniforms are not always used, in part because of the increased use of irregular and paramilitary forces. Whilst most war fatalities in the early twentieth century were military personnel, at the turn of the century most war fatalities were civilian.
⁴

For some, the underlying problem is the legitimacy of the state, and problematic or “weak” statehood as a legacy of the post-colonial era.
⁵
As long as major interstate war remains unlikely,
⁶
and legitimation problems of weak states continue, such conflicts are likely to persist. This is further exacerbated by the ethnic dimensions of contemporary conflicts, which have inscribed these conflicts with, as Shaw has noted, a genocidal impulse.
⁷
This is not to deny that identity in terms of distinguishing between “us” and “them” has always been important, especially since the advent of nationalism in the nineteenth century. Concerns surrounding identity are always present in any political community, and not only in the context of the breakdown of political legitimacy.

Nonetheless, these general patterns of contemporary conflict all have implications for attempts to resolve conflict, but also, crucially, questions of how to ensure accountability for atrocity crimes.
⁸
The centrality of ethnic identity and the specific organization of armed groups in conflict matter fundamentally both for the efforts to end hostilities and for accountability. In particular, the blurred lines between “war” and “peace” in much contemporary conflict have led to attempts to implement TJ policies in institutionally and politically very fragile and
unstable situations, before any discernible transition (from “war” to “peace”) has taken place.
⁹

Development of the International Legal Architecture

There are two key dimensions to the development of the international legal architecture governing accountability efforts in the context of ongoing conflict. The first is related to the greatly increased normative ambitions inherent in the development of international human rights institutions in recent decades. The UN has assumed a prominent peacebuilding role, incorporating human rights protection into its operations as guiding principles. The more overtly coercive dimensions of human rights enforcement have emerged front and center in contemporary debates on the appropriate response of the international community to massive human rights violations. Movement towards politically legitimating humanitarian intervention based on collective action—including the use of force—is embodied in the principle of “Responsibility to Protect” or RtoP, and associated efforts to redefine threats to international peace and security that have pushed human rights compliance onto the agenda of the UNSC. This development reflects both the broadening of interpretations of threats to international peace and security, including mass atrocities, and the increased acceptability of the use of force for a broad range of policy objectives and associated beliefs in the utility of military power.

One remarkable feature of the normative development of international human rights in recent decades is the emergence of individual accountability as a guiding principle for TJ. This should be seen against the broader global trend, uneven as it may be, toward the criminal prosecution of those responsible for grave human rights violations. As a result, international criminal justice—with the ICC as its central institution—has emerged as a form of global governance, with specific underlying principles, values and norms, in the process reshaping human rights politics and institutions.
¹⁰
Liberal assumptions concerning the ability to individualize guilt, and the ability to deter violence absent the use of force, have become deeply embedded in the international criminal justice regime.
¹¹

In particular, the current development of international criminal law has tended to advance a rather narrow understanding of “accountability” that focuses on individual criminal accountability at the expense of broader alternative conceptions of accountability as conventionally enshrined in international human rights law (i.e. state, or public, accountability). Retributive approaches to justice have also gained a privileged position within the international criminal justice regime at the expense of restorative approaches, with “justice” primarily conceived of as “punishment” of transgressors. Moreover, the traditional distinctions between the different bodies of international law have become increasingly blurred, with the laws of war—regulating conduct in armed conflict—coming into a closer relationship with international human rights law on the one hand and international criminal law on the other.

Hence, overall, the expansion of the international legal architecture has created a much higher presumption against impunity and in favor of accountability than what existed one decade ago.
¹²
The UN Secretary-General has taken the view that UN-endorsed peace agreements can never grant amnesties for genocide, war crimes, crimes against humanity, or gross violations of human rights.
¹³
This presumption is also deeply embedded in the overarching objective of the Rome Statute, namely “to put an end to impunity for the perpetrators of [the most serious crimes of concern to the international community] and thus to contribute to the prevention of such crimes.”
¹⁴

The second dimension is related to the rise in “victim-centered” notions of justice. There has been a steady increase in provisions for victims’ rights in recent years. This can be seen in the growth of reparations programs, in the creation of a victims’ trust fund at the ICC, and in the adoption of UN guidance and principles pertaining to restorative justice.
¹⁵
The increased emphasis on victims’ rights has brought criminal justice into a closer relationship with human rights in the field of TJ. The strengthening of victims’ rights has also led to the incorporation of human rights into international criminal justice processes. The potential link between restorative and retributive forms of justice can most clearly be seen in the increasing trend in international criminal justice towards the recognition of the role of victims in these processes, especially in the design of reparation policies.

Clearly, expectations of victims for justice have increased, at least partly as a result of changes in international criminal law and the dramatic expansion of the TJ field. Nevertheless, giving privileged attention to victims’ interests and demands also raises several complex issues. The participation of victims in TJ processes is often complicated, particularly since victims are not a homogeneous group, and the nature of abuses they have suffered may vary. In many cases, victims groups include relatives of those killed and/or disappeared, in some cases entire groups and communities of people have been victimized, and, in others, the primary group of victims are smaller groups of political activists. In some instances, individuals and groups who have suffered human rights violations may reject the term “victim” and prefer the term “survivor.” There are also circumstances in which some “victims” were also “perpetrators” (e.g. child soldiers).

Yet, TJ processes are often driven by victims’ groups. While victims’ groups clearly have a legitimate role in shaping transitional institutions and processes that affect them directly, it is less clear to what extent their demands should be privileged when these collide with broader conceptions of the public interest, a category within which “peace,” however understood, falls. Victims and affected communities may also demand types of justice and forms of punishment that may be unacceptable to those not directly affected and, in some circumstances, by external actors (such as the death penalty). The participation of victims raises therefore a host of intrinsically complex questions regarding definitions of what constitutes the “public interest,” whose definition counts, and classical dilemmas in democratic theory between majoritarian interests on the one hand and individual rights and protections on the other.

2. Liberal Peacebuilding and Transitional Justice: Overlapping Agendas and Operational Tensions

The practice of international judicial interventions in ongoing conflicts has brought the field of TJ into much closer contact with the related, but distinct, fields of conflict resolution and peacebuilding. The primary objective of peace-makers has traditionally been to secure a peace agreement that would ensure an end to the armed conflict. In recent decades, however, peacebuilders have dramatically expanded their policy objectives beyond the cessation of armed conflict to include the establishment of a sustainable peace, the neutralization of the incentives for a return to conflict, and the realization of a variety of accountability and rule of law strategies.
¹⁶
In the process, peacebuilding and human rights have also become an integral part of the agenda of the UNSC and the management of international peace and security more broadly. While traditionally based on principles of consent, neutrality and the limited use of force, the UNSC-mandated peacebuilding missions over the course of the last two decades have included election observation, provisional administration, and coercive rules of military engagement.