Transitional Justice and Peacebuilding on the Ground: Victims and Ex-Combatants (Law, Conflict and International Relations) (13 page)

Challenges of Legitimacy

International actors and institutions have carved out a central role for themselves when dealing with mass atrocities. As an increasing number of TJ institutions are established around the world, the agency of the specific actors involved is central to the pursuit of TJ. Yet, the question remains on what grounds external interventions, and particularly judicial interventions, are legitimate. Indeed, “who should be deciding on these processes, implementing them and ultimately benefiting from them are deeply contested issues.”
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Human rights activists and legal professionals often assert the authority of international legal norms and institutions on positivist grounds. This may not be altogether surprising given the extensive mobilization of resources around the values underpinning the international human rights and criminal justice regimes. Conventional understandings of the legitimacy of international legal norms either focus on the procedural fairness (due process guarantees) of criminal justice, or adopt legal positivist positions, accepting the authority of international law. For some, the legitimacy of international criminal justice ultimately rests on both its procedural fairness and its sources of authority (in terms of the relevant community that can/should be able to hold perpetrators to account).
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Regarding the latter, the crucial question is: accountable to whom? The common justification for international sanction for international crimes is that such abuses constitute an affront to humanity as a whole. For scholars such as Henham, however, “whatever measures are taken in the name of humanity to ‘penalise’ or ‘punish’ or ‘deter’ perpetrators of international crimes, these must draw moral support from both global and local constituencies.”
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This highlights the importance of context and agency in TJ processes. As argued by Clark and Palmer, “[w]ho implements transitional justice processes, what needs they respond to, and how particular interventions are ultimately understood by affected populations, are critical in determining the legitimacy and efficacy of transitional responses.”
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There are, however, also pragmatic reasons for why the particular histories, social norms, and cultural practices of affected communities must shape the development and implementation of TJ policies. For, without giving such considerations due attention, the legitimacy deficits of internationalized practices of TJ inevitably determine their impact.

3. Judicialization of Transitional Justice

Legal and judicial strategies have become dominant in the field of TJ. For proponents, the increase in international prosecutions, even in the context of ongoing conflict in recent years, demonstrates that law can prevail over politics, and that the criminal prosecution of abuses can assist in breaking the “wall of impunity.”
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For some, as outlined above, there is a strong consequentialist rationale for criminal prosecution as a way to reassert the legitimacy of the state, to strengthen the rule of law, and to promote political democratization.
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Yet, there are significant limits to what legal and judicial mechanisms can achieve in relation to TJ outcomes. In the first instance, there are the limits inherent in the recourse to judicial procedures and logics in addressing complex social and political problems: the challenges inherent in processes of judicialization per se. It remains crucial therefore to recognize the limits of what judicial approaches to accountability can achieve, especially through international courts and tribunals. In response to the complex objectives of contributing to conflict resolution, increasing political stability, combating impunity, and promoting reconciliation, any positive contributions of trial-based approaches to accountability are likely to remain modest.

Moreover, the specific character of the development of international criminal justice has privileged retributive forms of justice in ways that often are not conducive to conflict resolution or political and societal reconciliation. The international criminal justice system, as encapsulated by the ICC, aims primarily at the prosecution and punishment of individuals, and retribution and deterrence have been promoted as the primary objectives of punishment. The development of international criminal justice has taken place, however, at the expense of restorative approaches of justice and of broader notions of human rights accountability. Yet, despite the prevalence of claims of effectiveness of the international criminal justice regime in terms of deterrence, there is a dearth of empirical evidence documenting such claims. Also, especially in the context of large-scale organized political violence, there are inherent limitations in retributive approaches to criminal justice. As mentioned before, simply given the vast number of cases in such contexts, attempts to establish individual criminal responsibility tend ultimately to be unsatisfactory. To focus on a handful of cases may invite accusations of selectivity and further contribute to the politicization of the judicial system. Although the prosecution of individual cases may be symbolically very significant, criminal prosecutions are not likely to bring about political reconciliation.

The judicialization of TJ also risks obfuscating politics in ways that almost invariably benefit elite interests. Clearly, judicial interventions do not cancel out politics; they are both fundamentally driven by politics and, in turn, shape politics. In other words, Moreno Ocampo’s aspiration that the ICC statute would result in a move “from a world based on power to one based on law,”
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veers towards an attempt at depoliticization. As seen in Uganda, for example, the intervention of international tribunals can be manipulated by local elites for their
own political ends. Hence, the potential for dislocation of politics that processes of judicialization entail may lead to elite capture and local power structures to condition the impact of TJ processes.

III. Recasting Transitional Justice and Conflict Resolution in an Imperfect World

The final part of the chapter outlines some possible ways for TJ to recast its engagement with ongoing conflicts. In the first instance there is the need to recalibrate TJ strategies in the context of ongoing conflict in terms of: management of expectations; acknowledgement of the limits of the “transitional” paradigm when applied to ongoing conflicts; recognition that consensus is unlikely and probably undesirable; embracing of complexity and the blurred boundaries inherent in the field of TJ; and recognition that any gains made are prone to reversals.

1. Prudence, Incrementalism and the Constant Potential for Reversal

The theory and practice of TJ has its roots in the understanding that transitional contexts constitute disruptions of “politics as usual” that offer opportunities to recast justice and its foundations.
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Yet, TJ issues are invariably complex. At the core of TJ debates is a set of moral and political dilemmas, which are not readily reduced to general theories. As with any morally fraught subject there are very rarely any straightforward solutions available. Consensus surrounding most issues relating to TJ remains elusive and, as with any morally thorny issue, probably undesirable.

There is still a need, nonetheless, to go beyond the binary debates that tend to dominate the field (peace vs justice, law vs politics, local vs international, etc.) and recognize the complexity and blurred boundaries inherent in the field of TJ. On the one hand the tensions between, say, peace and justice are likely to be less pronounced than what is often maintained. On the other, there are fertile grounds to explore useful ways forward beyond sterile dichotomies.
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It is also important to better manage the expectations of what TJ mechanisms can realistically achieve. For many critics, the pursuit of TJ in the early stages of a political transition, or even in the absence of a transition, may be considered premature.
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Indeed, it is crucial to recognize the limits of the “transitional” paradigm (as developed in the context of democratic transitions) when applied to ongoing conflicts. In particular, the paradigm may be misleading, as it implies that countries moving away from a difficult past will necessarily make the transition toward democracy and stability. Overburdening TJ mechanisms with excessive roles tends to give rise to inflated expectations of what TJ can deliver. In the context of ongoing conflict, rather than there being a rupture with the past, the legacies and challenges of the past are likely to fundamentally shape any future developments.

There is also the need to recognize that any normative progress with regards to TJ is prone to reversals. Consider the framework of Responsibility to Protect (RtoP) that increasingly underpins, both discursively and institutionally, attempts to intervene in ongoing conflicts. RtoP highlights the reality of constant renegotiations of state sovereignty in matters of human rights and the legitimate form and scope of international interventions in the domestic affairs of sovereign countries. It has shifted understandings of what sovereignty entails towards a less absolutist understanding of sovereignty over the course of the last decades. These trends also invoke understandings of sovereignty not as entitlement but as status, understandings of what it means to be a legitimate member of an international society, and the capacity to engage in increasingly complex transactions with other members of the system.
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However, if one accepts that normative understandings of the legitimate scope for intervention in conflict are prone to change, there will also be the potential for pushback, reversal, and stagnation. As Welsh observes, “[e]fforts to implement norms open up new areas of contestation for those sceptical of the norm’s provisions, and can lead to either backsliding or differential interpretations of the norm’s meaning.”
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What does this mean for the pursuit of accountability strategies by external actors during ongoing conflict? There may indeed be broad recognition of certain fundamental principles enshrined in the international criminal justice system and the associated concept of RtoP concerning state responsibility and intervention. But criticism from rising powers, such as Brazil, India, and China, suggests that these states are not yet willing to fully accept the compatibility between the principle of non-interference and international criminal justice. More generally, resistance to the more coercive efforts to enforce international criminal justice—in Libya and Sudan/Darfur for example—needs to be seen in the context of an uncertain future for the global human rights regime more broadly in light of the wider implications of the rise of non-Western states and shifting global power balances. As power shifts globally, therefore, competing understandings of sovereignty that emphasize sovereign equality may reassert themselves, challenging the demands and expectations of accountability advocates.

2. Strategizing Transitional Justice

Against this background of challenges, in the spirit of “strategizing” TJ, five points are highlighted in summary form:

First, any morally defensible strategy of TJ would include not only legal considerations, but also the inherently political context in which the strategy is developed and implemented. According to some, international judicial actors, and particularly the ICC Prosecutor, should openly admit the political nature of their activities, which would enable them to make more informed political decisions. Yet, most advocates of international criminal justice tend to maintain that their role is to operate autonomously from political influences. Clearly, justice actors and institutions are both affected by and effect
politics. Judiciaries, whether domestic or international, do not operate in a political vacuum. They are often attuned to and generally accommodate political shifts. The law, however, and the interests and normative preferences of its practitioners, cannot be simply reduced to politics. Developments in international law fundamentally shape the normative environment in which political actors operate. More specifically, the force of legal norms does not merely manifest itself in the form of constraints. Legal norms also have important creative, generative and constitutive influences on political practice. For Finnemore and Toope, for example, international law is more than merely a matter of cases and courts, or formal treaty negotiation. It has a constructive dimension in which actors participating in law’s construction “contribute to legitimacy and obligation, and to the continuum of legality from informal to more formal norms.”
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Law in this view draws attention to those rules, norms, and decision-making procedures of institutions that shape expectations, interests, and behavior.

Second, and building on this last point, by considering “the interests of justice” the complexities of sequencing and timing must be better understood. In the first instance, further research on the causal effects of TJ mechanisms, including indictments and amnesties, on the dynamics of ongoing conflict is required. Recent research findings suggest that the timing of TJ mechanisms matter, but it remains unclear exactly how and why this is the case.
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Indeed, Article 53 of the Rome Statute provides that the ICC Prosecutor may desist from opening an investigation if it appears to him that this would be in the “interests of justice.”
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However, the Rome Statute gives little guidance on what criteria the OTP should apply to determine what these constitute. Beyond the obligation to consider the gravity of the crime and the interests of victims, the Rome Statute makes no reference to the interests of peace and security, for example. Still, the notion of the interests of justice suggests that there is a strong rationale to defer prosecutions, i.e. delay justice, in times of political instability. A better understanding of the dynamics of time also includes a recognition that incentives and norms tend to change over time, and hence also what is both normatively desirable and politically/practically possible. Accountability measures are not likely to serve short-term interests of bringing violent conflict to an end. Accountability norms may very well complicate peace negotiations. TJ, therefore, is quite clearly a moving target. Political circumstances change as power balances shift, consequently altering the incentives facing relevant political actors. But more subtle changes also occur over time in the normative environment in which actors operate. In other words, what is both possible and desirable is prone to change over time. Hence, although accountability claims have a tendency to persist over time, timing is important, rendering what may seem as a morally desirable sequencing of TJ mechanisms difficult to implement.