R2P is Unable to Protect the Stateless; It Is Time for the United Nations Security Council to Step Up

Posted on September 22, 2020

By Dimitra Protopsalti and Timothy Lionarons

Dimitra and Timothy are Master’s students at Leiden University in the Netherlands, currently enrolled in the two-year Advanced Master’s programme lnternational Relations and Diplomacy. This Master’s programme is taught in collaboration with the Clingendael lnstitute. @DProtopsalti 

The United Nations (UN), established in 1945 to promote world peace, instated the Responsibility to Protect (R2P) in 2005 to shield humankind from mass atrocities. However, the shortcomings of R2P are a product of its exclusionary nature. The UN, and subsequently the R2P, fail to protect an approximated 10 million of the world population: the stateless. R2P’s reliance on the states’ notion of citizenship has revealed a weakness in protecting the stateless. The Turkish invasion of the Kurdish region of Syria demonstrated exactly how the United Nations Security Council (UNSC) was unable to safeguard those most in need. Hence, it is vital that the UNSC broadens the inclusiveness of the R2P in order to protect stateless peoples.

R2P and the Problematic Interpretation of the UNSC

Contrary to humanitarian intervention, R2P places the primary responsibility to protect citizens from genocide, war crimes, crimes against humanity and ethnic cleansing on the state itself, in accordance with Pillar I. If a state is unable or unwilling to provide this protection, it is encouraged and pressured by the international community through both aid and sanctions (Pillar II). If the aforementioned measures still do not suffice, Pillar III entails the responsibility of the international community to intervene militarily.

When discussing the necessity to intervene in conflict-stricken states, the UNSC tends to refer to and rely heavily on a state’s primary responsibility to protect. All statements and resolutions by members of the UNSC since 2011 have emphasized Pillar I responsibilities and, by extension, have understated Pillars II and III that denote international responsibility. This is because international responsibility can cause infringement of state sovereignty.

However, sovereignty grants independence and inalienable rights that enable a state to determine who is granted citizenship and, by extension, the right to protection. The stateless, by nature, are deprived of citizenship and hence fall between the cracks of protection by both the state in which they reside and the international community.

Left to Their Own Devices: The Kurds, the Rohingya and the Bidoon

The Turkish invasion of Kurdish-occupied North Syria once more underlined the R2P’s inability to protect the stateless. With president Trump’s decision to withdraw American troops from the Rojava region, Turkey was given free rein to set up a so-called ‘safe zone’ in Syria. This posed a direct threat to the Kurdish population of the region, yet their cries for help were unheard. The largest stateless population in the world was left subject to the Turkish government – the same government that deems the Kurds and any affiliated political organizations to be terrorists of nature. What ensued was the killing of more than 70 individuals and forced displacement of 300,000 Kurds from the region.

Similarly, the Rohingya, residing in the Rakhine State of Myanmar, have been systematically targeted by the Myanmar government. As a result of R2P’s failure to protect the stateless, many died and thousands were forced to seek refuge in Bangladesh. As of 2017 Bangladesh counts an estimated 900,000 Rohingya refugees.

In Kuwait, the stateless Bidoon population (“bidun jinsiyya”, meaning ‘without nationality’) suffers the same fate as the Kurds and the Rohingya. They, too, are devoid of basic human rights and the protection against crimes as underlined in R2P.

These examples are often accompanied by vocabulary signalling genocide and/or ethnic cleansing. President Trump justified the invasion in North Syria as a process of “cleaning out” the region, whilst the Myanmar government initiated “clearing operations” against the Rohingya. The Rohingya were characterized as “roaches” to be “exterminated” and the Bidoon were deemed “illegal residents” by the Kuwaiti government. History has demonstrated that all too often such language results in atrocity as populations become stripped of their humanity.

Still, R2P fails to include the stateless in its protective framework.

Intervening to Intervene: A More Inclusive R2P

To prevent these conflicts from escalating further and resulting in atrocities which violate R2P principles, the UNSC must take immediate action. Specifically, the UNSC ought to adopt a new resolution which foresees the protection of all individuals within a state, regardless of their (lack of) citizenship. The final responsibility and decision to intervene lies with the UNSC. Yet, the UNSC has the ability to veto proposed R2P interventions and has done so in the past. Thus, it is critical that the UNSC demonstrates its ability to act as a unified actor and that Member States set aside personal interests to protect all of humankind. By adopting a new resolution that includes the responsibility to protect all people residing within the borders of a state, not just those granted citizenship, the UN will be able to prevent the stateless from falling between the cracks of R2P protection by the state and the international community. This enables Turkey-Syria, Myanmar, and Kuwait to be held accountable for their negligence to protect the Kurds, the Rohingya, and the Bidoon, respectively.

If the UNSC decides not to adopt the amendment, the remaining member states of the United Nations General Assembly (UNGA) should invoke Resolution 377, also known as the ‘Uniting for Peace Resolution’, to proceed to its adoption without the consent of the UNSC. Under the Charter, this resolution allows the UNGA to take collective action in order to protect and maintain international peace and security if the UNSC fails to do so. In this case, it enables the UNGA to protect the stateless.

To reiterate, we have proposed two distinct manners in which a new resolution can be adopted to ensure the inclusion and consequent protection of the stateless, by complementing the existing R2P regime.

COVID-19 and the Responsibility to Protect Rohingya Refugees

Posted on September 13, 2020

By Amber Smith and Tom Welch

Amber is a PhD candidate at the University of Lincoln Law School and her thesis is on TWAIL, R2P and Regional Organisations. @amberamelismith

Tom is a PhD candidate at the University of Lincoln Law School. His thesis focuses on the relationship between vulnerable and displaced populations and the legal regimes that ostensibly seek to protect their rights. @TomWelch94

On 1st April 2020, the Global Centre for the Responsibility to Protect issued an atrocity alert special issue on COVID-19. This alert noted that COVID-19 would have particularly adverse implications for the ‘70 million people forcibly displaced by conflict, persecution and atrocity’, many of whom currently live in conditions which leave them vulnerable to the coronavirus.

Residing in a refugee or IDP camp is a condition which increases vulnerability to COVID-19, particularly in overcrowded and unsanitary camps which lack medical facilities and the ability to maintain social distancing, much like Cox’s Bazar in Bangladesh. Currently, over 900,000 Rohingya refugees reside in Cox’s Bazar after fleeing persecution and genocide by the Myanmar military. The Institute on Statelessness and Inclusion notes that whilst those living under refugee conditions were already in a crisis before the pandemic, COVID-19 has further highlighted structural inequalities. There are currently no intensive care medical facilities  in any of the camps in Cox’s Bazar, nor are there adequate means by which to clean hands or socially distance, both of which are vital for protection from COVID-19.

The Global Centre for the Responsibility to Protect noted two factors in a joint letter to Prime Minister of Bangladesh Sheikh Hasina which are placing Rohingya lives at greater risk. The first factor includes Internet access for Rohingya within the camps, which is currently restricted. This limits the spread of safety information, ultimately causing discriminatory healthcare outcomes. The second factor includes plans to install barbed wire fences around the camps for the purposes of restricting the movements of the Rohingya and confining them, rather than protecting them. The letter states this will create ‘obstructions to humanitarian access’, which is largely counterproductive for refugee protection. This form of structural violence is likely to cause disproportionate death tolls within camps.

Myanmar’s government has also used the pandemic to further discriminate against the Rohingya by closing borders between Rakhine State and Bangladesh, which has resulted in Rohingya refugees being pushed back into the sea. Refugee camps at breaking point, coupled with the lack of responsibility for vulnerable refugees at sea, raise serious questions about the responsibility to protect.

Since its conception, prevention has been cited as one of the most important dimensions of R2P. The Global Centre for the Responsibility to Protect notes that COVID-19 has increased the risk factors for mass atrocity in divided and fragile societies which suffer from identity-based conflict. Therefore, an opportunity to prevent possible future atrocity has arisen: to protect the Rohingya who still reside within Myanmar and to extend prevention efforts through international assistance to Rohingya residing in refugee camps. This could be achieved through pillar two of R2P’s three-pillar strategy, that is to once again encourage Myanmar to recognise its primary responsibility to protect the Rohingya. Using pillar two could improve humanitarian assistance measures through increased aid efforts and improved access to medical facilities within the camps.

A critical barrier to the successful implementation of R2P in these circumstances is the refusal of many Southeast Asian states to engage with protection mechanisms which encourage the greater safety of displaced populations living within their borders. Neither Bangladesh nor Myanmar have signed or ratified the Refugee Convention, its Protocol, nor the Statelessness Conventions, on the ground that the protections and responsibilities outlined within such documents are Eurocentric and irrelevant to the Asian experience of refugeehood.

Whilst such excuses have been largely dismissed as either poor attempts to absolve state responsibility toward vulnerable and indigent populations, or as insidious efforts by oppressive regimes to continue advancing anti-minority agendas, there is some merit to the arguments posed by Southeast Asian governments. The growth of internal Rohingya populations in Bangladesh has already had a severe impact on local unemployment rates and has resulted in considerable environmental degradation. As a densely populated low-income food deficit nation, Bangladesh lacks the infrastructure to successfully integrate its large Rohingya population. Without the guarantee of considerable external assistance, the expectation that Bangladesh should sign and ratify the various Refugee and Statelessness Conventions at this time is largely infeasible.

Therefore, to encourage alignment between the values espoused by the wider refugee protection regime and those of Southeast Asian nations, a responsibility-sharing mechanism must be introduced to ensure greater collective liability for displaced populations amongst global actors.

The Global Compact on Refugees (GCR) is demonstrative of the movement toward a refugee protection regime predicated on the ideals of collective action and international solidarity. Non-binding agreements such as the GCR can play a pivotal role in the development of normative legal concepts in international law by delineating the technical standards by which existing law can be applied or by taking the initial step in the norm-making process. The GCR’s non-binding nature thereby functions as a “nodal point” in the endeavour to link refugee-hosting states, such as Bangladesh, to the wider refugee protection regime.

The GCR presents certain deficiencies, including a failure to examine in detail what is meant by the term ‘responsibility-sharing’ and to delineate the precise ways in which private sector engagement and resettlement opportunities might take shape. Whether the GCR is fit for purpose in a post-Covid environment is a question yet to be answered.

Much work is still required to protect vulnerable populations, an endeavour that is made more complex given current global circumstances. We propose that a response through R2P’s second pillar, with a focus on the need to ensure greater inter-state solidarity, is a means to protect the Rohingya from further abuse and mistreatment.

Book Review: Education of an Idealist by Samantha Power

Posted on August 3, 2020

Eleanor Smith

Eleanor Smith is a postgraduate student, studying MA Global Governance and Diplomacy at the University of Leeds with a special interest in atrocity prevention. She previously graduated from the University of Hull with a BA in War and Security Studies. @eleanorfs_

Having heard Samantha Power discuss her experience in the White House and her commitment to multilateralism on “Pod Save the World,” a podcast run by two of her former Obama administration colleagues, I was keen to read Power’s work and learn more about her.

Power’s, The Education of an Idealist, also appealed to me having previously read William J. Burns’, former US Secretary of State, The Back Channel. When reviewing The Back Channel, I commented on how unusual it was as a behind the scenes insight into the usually shrouded world of diplomacy. The Education of an Idealist goes one step further. Power provides an insight not only into the world of diplomacy but into the path she took to get there: from her home in Ireland, through losing her father, her life as a journalist in Bosnia, then her journey on to the White House and eventually the UN. Power’s book is therefore noteworthy not only as a window into the life of a foreign policy insider, but also as a guidebook for 20-somethings looking out into the world of work.

Power’s Journey: Outspoken Critic to Policy Insider

Beginning her career very much as a foreign policy outsider, a sports reporter for her college newspaper, Power first became interested in foreign policy after watching the now infamous ‘Tank Man’ episode in Tiananmen Square. Moving quickly into foreign policy, after interning at the Carnegie Endowment, Power went on to work as a freelance reporter in Bosnia reporting on the siege of Sarajevo and the Srebrenica massacre.

Power’s time in Bosnia and her anguish over America’s laissez faire attitude towards human rights abuses fuelled her writing, including her Pulitzer prize winner A Problem from Hell, as well as her advocacy. After returning from Bosnia and attending law school, Power established herself as a frequent critic of US foreign policy and their all-in or all-out approach.

Unsurprisingly, this brought her to the attention of then Illinois Congressman Barack Obama. Power worked alongside Obama as a policy advisor and later became Director of Multilateral Affairs during his first term, and the US Ambassador to the UN in his second term.

During her time in the Obama administration, Power was not untouched by controversy; each of which she discusses with complete candour. First, her inexperience in the public eye showed itself in a mistimed and poorly considered “throwaway” comment on Hilary Clinton, Obama’s competitor for the Democratic nomination. Power was forced to resign from his campaign. Years later, Power’s close friend and former US Secretary of State Richard Holbrooke would organise an in-person reconciliation with Clinton as a wedding present.

Advocacy Fuelling Policy

Once within the White House, Power’s actions in calling for intervention in both Libya and Syria became controversial. As Director of Multilateral Affairs in 2011, when conflict broke out in Libya following the Arab Spring, Power advocated for action from within the US administration. While generally supported at the time, the NATO intervention in Libya has since been heavily criticised. In fact, Obama has discussed the failure to produce an exit strategy in Libya as one of his greatest mistakes in office. Despite this, Power stands by her position.

When faced with further consequences of the Arab Spring in Syria, at the very beginning of her UN tenure, Power attempted to advocate for similar action from the UN. She describes in great detail her interactions with her Russian counterpart, Vitaly Churkin, and her frustration at the failure of Congress to authorise US military action; mirroring what she had seen in Bosnia almost two decades earlier. Power even goes so far as to suggest that US unilateral intervention may have gone ahead if it wasn’t for the presence of UN chemical weapons inspectors in Syria. The failure to intervene has, of course, since become an even greater controversy than the intervention in Libya.

Interestingly, at no point does Power discuss either the Libya intervention, or her hopes for US foreign policy, in terms of the principle of Responsibility to Protect, despite Libya being described as a turning point for the principle. It’s unlikely that this omission is accidental, Power after all was an advocate for US preventative and military action prior to the 2005 World Summit. It is more likely Power chose not to introduce such a principle to her readers when writing her memoir or, perhaps, she has simply grown used to avoiding reference to the principle which remains unevenly implemented, controversial or misunderstood.

Life Lessons from a UN Ambassador

Beyond her insights into the foreign policy formulation of the Obama administration and foreign policy execution at the UN, Power’s book provides valuable life lessons. While some of these lessons feel particularly relevant for me, as a young woman hoping to follow a similar career path, some are equally as relevant for those pursuing other career trajectories.

On advocacy, Power discusses the importance of “shrinking the change”; any large change is brought about through incremental efforts by dedicated groups of people across weeks or years. This quickly became her team’s mantra and Obama followed suit with the similar phrase ‘better is good’. Additionally, based on her experience in the UN, she advises her readers to meet people where they are. She also urges readers to address the reasonable concerns of critics, provide nuanced responses and work with them instead of against them.

In terms of greater valuable life lessons, Power talks about the importance of silencing your ‘Bat Cave’ – that space in your brain where self-doubting thoughts frantically scramble for attention. More often referred to as ‘Imposter Syndrome’, Power’s analogy is relatable to many, including me. Power’s advice is to silence those ‘bats’ by sharing your feelings with others.

Power also links her ‘bats’ to another life lesson: “Never compare your insides to somebody else’s outsides”. Power describes the revelation that her female colleagues in the White House also struggled with falling into the same comparison trap and explains how much she gained from reaching out to other women within the administration, both personally, and professionally. Recognising the limited number of women within the White House, Power began “aggressively recruiting” women to her department and inviting them to her ‘Wednesday Group’ to share and support each other.

‘Lean On’ is Power’s greatest lesson – without it she says her career would have been impossible. Adapted from Sheryl Sandberg’s ‘Lean In’, Power describes with great feeling the importance of her friends, family members and colleagues who helped in numerous ways; from silencing her inner critic, to caring for her children and supporting her move from Massachusetts to Washington and then to New York to take up her UN position.

Final Impressions

More than just an account of life in the Obama administration and at the UN, The Education of an Idealist is a guidebook for navigating life as an advocate, writer, mother, and woman in a position of power. It is as valuable for its political relevance as it is for its honesty and the life-lessons it provides. Power describes her relationship with Vitaly Churkin as evocatively as she describes her memories of her father, experiences in Bosnia and her heart break in North Africa, where her convoy was responsible for the death of a small child. The lessons she draws from her experiences are applicable in numerous aspects of life.

For a 23-year-old woman hoping for a future in advocacy and atrocity prevention, this book is exceptionally powerful. Power’s experience in the White House and at the UN, and the lessons she has learned trying to balance her idealist nature with the pragmatism required to succeed in governance, are enlightening. There is much we can learn from Power and translate to our own lives.

What are we to do with the Romanian memory of the Holocaust?

Posted on July 19, 2020

Marius Ghincea

Marius Ghincea is a Romanian Ph.D. Researcher at the European University Institute in Florence and a Senior Teaching Assistant at Johns Hopkins University, Bologna. He previously studied at the University of Bucharest, in Romania.

Half a century ago, in his memoir of his Holocaust years in the Sighet ghetto and at Auschwitz, Elie Wiesel, the Nobel Peace Prize laureate, was saying that “to forget would be not only dangerous but offensive; to forget the dead would be akin to killing them a second time.” Erasing the memory of the past, of our reprehensible deeds, of the crimes of our ancestors, will not make us better beings. It will only make us more ignorant, ready to repeat again and again what we now consider improbable, even impossible. Because, as Wiesel put it, “in the end, it is all about memory, its sources and its magnitude, and, of course, its consequences” on how we, as individuals and as a society, perceive our past, build and rebuild our identity. The memory of the past shapes our existence, contributes to the way we perceive social reality and helps us to shape our vision of the future we want for ourselves and our descendants.

Accepting the past as it was, preserving and passing on the memory of the Holocaust, and commemorating the Jewish, Roma, homosexuals, and other victims of this deliberate mass extermination process is a sign of maturity, a sign the a society has overcome its cultural and nationalistic infancy. It shows that a society is ready to accepts its reprehensible deeds of the past and can finally overcome them. Recognising the misdeeds of the past is only the first step in a long road towards a more inclusive, tolerant, accepting, and free society that embraces cultural, ethnic, and social differences as catalysts for progress and development.

Half a century ago, the Romanian state was engaged in a systematic process of mass extermination of the Romanian Jewish population, of the Roma and other ‘undesirable’ people. Almost half a million people were exterminated through barbaric methods by the Nazi-allied military dictatorship of Ion Antonescu. Particularly revealing is the fact that Romania was the only ally of Nazi Germany who exterminated its own Jewish population and other discriminated groups. If in the rest of Europe the general practice was that of deportation of the local Jews to German extermination camps, the Romanians were the only German allies who built their own in the occupied territories of Transnistria, in current-day Republic of Moldova.

The Romanian society still avoids facing the reality of its own past and the common culpability for the extermination of Jews and Roma people during the Antonescu regime and the national-legionary state. Things are on the right track, though. After decades of refusing even to recognize the role of the Romanian state in the extermination of hundreds of thousands of Jews and Roma, the Romanian state finally recognises the reprehensible facts of the past and has adopted public policies and programs to protect the memory of the Holocaust and support Holocaust survivors and their descendants. However, far too many members of the Romanian cultural elite, as well as significant parts of the public, refuse to recognize or even learn about the Romanian Holocaust. From members of the Romania Academy that evoke anti-Semitic messages to political leaders who deny the very existence of extermination on Romanian territories, the signs that the Romanian society has not yet accepted its own past abound.

Anti-Semitism and Holocaust denialism are rarely chastised and moral, social, and legal penalties are often delayed. Public reactions are weak and limited to a liberal-progressive core or come from state institutions that are rather driven by a desire to prove to Western partners that the state is reacting to anti-Semitism. Sixteen years have passed since the publication of the Elie Wiesel Report on the Holocaust in Romania and the National Institute for the Study of the Holocaust in Romania still needs to fight against the most primitive forms of denialism and anti-Semitism. It even needs to fight for a national museum of the Holocaust and the history of the Romanian Jewry.

The memory of the Holocaust: a more inclusive history and identity

Accepting the past and recognizing the Holocaust in Romania involves reconstructing the historical narratives that are promoted in mass education, culture, and society at large. This is not only limited to the reprehensible action of the national-legionary state and the military dictatorship of Ion Antonescu, but more broadly to periods before and after the Holocaust. Recognition of the Holocaust entails not only rewriting history textbooks to include adequate information and acknowledgement of the phenomenon, but also entails recognising the structural and long-lasting denial that has characterised public historical narratives for much of its postwar history. Additionally, the memory of the Holocaust must be integrated into the identity framework of the Romanian nation, together with a strong condemnation of the anti-Semitism that defines Romanian nationalism. The dichotomous identity relationship between Romanians and Jews, built on differentiation between Romanians and Jews as belonging to distinct political and social communities, inspired by 19thcentury German romantic nationalism, must be taken into account and acknowledged. Jews born in Romania, especially those with long, historical roots in the Danubian Principalities, are and have always been part of the Romanian culture, making great contributions to the development of the country, its economy, culture, and society.

Defining the Romanian Jewry as not belonging to the Romanian nation by using an ethnic identity language to the detriment of a civic one has represented one of the catalysts that allowed for their demonization and the construction of narratives based on a so-called cleavage between Romanians (good) and Jews (bad). Therefore, protecting the memory of the Holocaust does not only consist in bureaucratic measures in schools and public institutions. It requires a redefinition of the national historical narratives and people’s conception of what it means to be Romanian. Romania must follow the German model, which has restructured its entire identity by integrating and recognising the crimes of the Nazi regime as part of its national identity narrative.

The preservation of the memory of the Holocaust should not be a perfunctory activity undertaken to please Western partners. It should be a well-thought and systematic engagement with people’s own history, their deeds and misdeeds, which should produce changes in the way they understand themselves in historical context, how they seek to overcome their past and, more importantly, how they can learn to live together with those they see as ‘the other’.

The memory of the Holocaust is a lesson for the future, not only about the past. In a world increasingly divided, with flows of refugees and increasing social conflict, the proper acknowledgement of our past can become the beacon driving our future.

Polished Me Like a Jewel

Posted on January 16, 2020 

Text and photography by Emily Faux

Two tonnes of human hair are currently on display at the Auschwitz Museum. Hair was shaved from the corpses of prisoners selected for immediate death in the gas chambers and shaved off prisoners selected for labour as soon as they entered the camp. Following Hitler’s efficient, no-waste policies, the hair was gathered into 20 kg bales and sold to German firms to serve various purposes. Some victims’ hair was used to make ignition mechanisms in bombs, others’ for ropes, cords and mattress stuffing. This was the fate of one and a half million women, men and children over five years in Auschwitz alone. Inspired by my recent visit to Auschwitz-Birkenau, I wrote this poem as a fictional account following a young Polish Jew named Anne, whose hair was used to manufacture socks after her age and gender rendered her unsuitable for work and sentenced to immediate death.

Disaggregating the “peace vs. justice” debate: breaking the silos and moving towards greater coherence

Posted on January 8, 2019

By Jacqueline J.Y. Cho

Jacqueline Cho is currently interning with the African Union Partnership Team at the United Nations, and was an intern at the Office of the United Nations High Commissioner for Human Rights at the time of writing. She is also working as a research assistant for Dr Gyda Sindre and helps coordinate the Politics After War Research Network. She recently graduated with a BA (Hons) degree in Politics and International Relations from Emmanuel College, University of Cambridge in 2018. Her areas of interest include conflict prevention and resolution, African politics and refugee studies. 

The question of how to deal with a difficult past is one that confronts every society emerging from a dark history. Since the mid-1980s, many such societies have chosen to address the legacies of pervasive human rights abuses, often with extensive international support. The pursuit of justice, with dominant forms being through trials and truth commissions, are said to be in tension with peace; much of the literature has framed this as a question of “peace versus justice” (see Baker, 2001). What is important to note, however, is that in practice, this dilemma is not as stark of a choice as presented and, more fundamentally, the notions of peace and justice that are in play in these settings are questionable. The current hegemonic understandings of both peace and justice are inadequate as guiding principles of policies concerning ex-combatants. In particular, the emphasis on ‘extraordinary’ forms of violence shapes perceptions of justice in a way that marginalises gender and structural injustice, which may undermine even the most minimal objective of these policies: the cessation, or at least the reduction, of direct violence. International actors should refrain from the tendency to design one-size-fits-all policies targeting ex-combatants with a preconceived end-goal of either peace or justice. Rather, the policies should be context-driven, which may take very different forms from case to case and involve addressing the structural injustice that preceded and contributed to the conflict.

Emergence of the dilemma 

The question of whether investigating and prosecuting war crimes may trigger a return to violence traces its origin back to early 1990s as the United Nations began setting up the International Criminal Tribunal for the former Yugoslavia (ICTY) while the Bosnia-Herzegovina conflict was ongoing (Baker and Obradovic-Wochnik, 2016, p.283). Scholarly debate surrounding the issue subsequently framed this tension as a question of “peace versus justice”. What had been an ad hoc problem with the ICTY then became a permanent feature of the international judicial system after 2002, when the Rome Statute establishing the International Criminal Court entered into force. The potential clashes between creating accountability for international crimes through justice measures and laying the foundations for peace concerned not only the leaders who might be disincentivised from making peace if they were indicted for war crimes, but also resonated throughout civil society. One early example of this was the instrumentalisation of ICTY’s findings into politics of ethnized collective narratives, hardening inter-ethnic boundaries and generating tensions.   

However, what quickly becomes clear in studying the policies targeting ex-combatants is that the option is seldom either peace or justice, and that the division is not always so clear in practice. Despite the dichotomy of peace and justice often portrayed in the literature, it is difficult to clearly delineate this distinction, especially given that activities under the title of “justice” spill over to what have been traditionally “peacebuilding” activities, not least the restoration of the rule of law (Sriram, 2007, p.585). Similarly, peacebuilding practice often involves initiatives usually labelled as justice, such as support for criminal tribunals or truth commissions. For instance, the fact that many “traditional” peacebuilding agencies, including the UN and the World Bank, supported the justice processes in Colombia highlights that the two notions are not necessarily in opposition, and that it is possible to transcend the deemed polarity (Baker and Obradovic-Wochnik, 2016, p.289).

Achieving both peace and justice? 

The complementarity of peace- and justice-seeking mechanisms under certain circumstances further calls into question the binary framing. It has become unavoidable to overlook the question of justice and accountability altogether following a violent conflict, and the question today is no longer whether something should be done after atrocity but rather how it should be done (Nagy, 2008, p.276). At the same time, DDR programs have become key components of peacebuilding efforts. These two initiatives – one focused on justice and accountability for victims and the other on peace – therefore coexist in many post-conflict settings today. It is often argued that there is an inherent tension between prosecution mechanisms and DDR programs since the latter requires cooperation from ex-combatants whereas the former may trigger resistance. In fragile security environments, however, prosecution can in fact contribute to the success of DDR by physically and politically sidelining particular leaders who are bent on conflict (Witte, 2010, p.2). By demonstrating to the bulk of ex-combatants that wartime commanders have no viable future, prosecution mechanisms can shift the loyalty of ex-combatants away from wartime commanders and break the command structures, making it more difficult for ex-combatants to organise violence. Prosecuting leaders can also help the reintegration process by drawing a distinction between those who have the greatest responsibility for international crimes and the rank-and-file ex-combatants (Witte, 2010, p.3).

Legalistic approach to justice 

The “peace versus justice” dilemma not only fails to reflect the reality, but the dominant understanding of justice in this debate is particularistic and narrow, which in turn, skews the meaning of justice. Just as the notion of peace, justice is an inherently contested concept, with an intellectual history and a developmental trajectory. The interpretation of justice therefore varies between socio-cultural contexts and its meanings will always be contested (Baker and Obradovic-Wochnik, 2016, p.291). Nagy (2009, p.275) convincingly argues that justice is a discourse and practice imbued with power, and notes with alarm the tendency of the international community to impose an ‘one-size-fits-all, technocratic and decontextualized’ concept of justice. This can be seen by what Nagy (2009, p.275) identifies as ‘predominant institutions of justice’ – trials and truth commissions –  being rolled out in post-conflict contexts around the world. Figuring out how to implement justice first requires a determination of the problem, and given the resource, time and political constraints, the trials and truth commissions adopt a fairly narrow conception of violence and its remedy, justice. The primary focus of these donor-funded justice institutions are the direct perpetrators and direct victims of violations of international criminal law. This reflects the heavy influence of the international legalist paradigm, which, inter alia, focuses on generating elite and mass compliance with international humanitarian norms (Nagy, 2009, p.276). In such a light, it is difficult to deny that justice in this context reflects the concerns and constructions of justice found amongst its key – Western – donors, which may be alien in certain cultures that emphasise community identity.

Neglecting ‘ordinary’ gender violence? 

The privileging of legalistic approach can also counterintuitively produce zones of impunity, which is clearly demonstrated by the treatment of gender-based violence. The international legalistic paradigm places emphasis on what are considered as “extraordinary” violations of civil and political rights, and this construction disregards and treats as ‘ordinary’ the private violence that women experience in both militarised and post-war societies (Nagy 2009: 280). Similarly, while sexual violence committed during conflict has now gained a central role in international criminal law, trials and truth commissions, accountability mechanisms remain predominantly focused on “extraordinary” times and violence. This marginalisation of gender injustice from the current framework of ‘justice’ is acutely disturbing, given the ‘post-war backlash’ many women experience (Pankhurst, 2007, p.293). Violence against women, particularly domestic violence, often persists, or even increases beyond pre-war and sometimes even wartime levels, precisely at the period when everyone expects life to be improving. It is alarming that such ‘post-war backlash’ is perpetuated not only by ex-combatants but also state-actors, such as the police (Pankhurst, 2007, p.263). Until very recently, considerations of such gender-based violence have been glaringly absent from transitional justice programmes, often resulting in an absurd and alarming situation where gender injustice is further entrenched when so-called “justice” measures abound.

Dismantling structural injustice  

The framing of the “peace versus justice” debate further deflects much-needed attention from structural injustice that neither of these notions, in its currently hegemonic understanding, addresses. Mamdani (1997, p.22) identifies this problematic emphasis on the individual as ‘today’s agency theory’ and explains that the focus on perpetrators fuels the demand for justice in the form of criminal justice at the expense of social justice. The pursuit of the latter is essential given that ‘yesterday’s perpetrators and victims – today’s survivors – have to confront the problem of how to live together’ in these post-conflict contexts, and that the narrow, somewhat artificial and culturally-inappropriate pursuit of criminal justice leaves intact the pervasive everyday violence that predated and may have contributed to the conflict itself (Mamdani 1997, p.21). This problematic exclusion of structural injustice from the dominant “justice” mechanisms today is vividly apparent in the South African experience. While the Truth and Reconciliation Commission (TRC) recognised apartheid as a crime against humanity, the Commission’s mandate narrowly defined perpetrators and victims in terms of ‘egregious bodily harm’ (Nagy, 2009, p.284). As a result, apartheid featured only as the context to the crime rather than the crime itself, overlooking the everyday violence of poverty and racism. It is for such reasons that the TRC, despite its laudatory status, largely failed to dismantle the pervasive structure injustice – racialised socioeconomic inequalities and ongoing political violations of human rights, political violence – and left a ‘de facto geographic apartheid’ in the ‘new’ South Africa (Nagy, 2009, p.280). Such serious limitations of the Commission that was carried out under the hegemonic understanding of “justice” urgently calls for a fundamental review of the notion itself. In this light, it is essential that policies targeting ex-combatants move away from focusing on particular individuals or groups but are better integrated into other initiatives that address structural injustice.

Conclusion

Having discussed the underpinning assumptions and the limitations of the “peace versus justice” dilemma, it is clear that this framing of the debate obscures more than it reveals. This dichotomy overlooks the fact that the choice is not as differentiable in practice and deflects attention from the ways in which so-called peace- and justice-oriented activities could reinforce the success of one another and achieve its shared long-term aim. More fundamentally, the narrow and heavily Western-influenced concept of justice that is currently dominant under the framework of ‘peace versus justice’ leaves intact structural injustice that may have contributed to the violent conflict. The creation of areas of impunity, especially with regards to gender-based violence and the real risk that unaddressed structural injustice may trigger a spiral of renewed violence, adds to the urgent call to shift the policy framework guiding ex-combatants. Standardised approaches that seek to impose either a particular normative vision of peace or justice must be avoided, and responses must be shaped by the particular economic, social and political fabrics of specific settings. These context-driven policies will vary widely and may include approaches that do not fit neatly into the “peace versus justice” framework but ones that nonetheless contribute towards the minimum overarching objectives of these policies: cessation, reduction and prevention of direct violence.

The views expressed herein are those of the author and do not necessarily reflect the views of the United Nations.

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