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.
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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