War means that people are prepared to die for the cause they are defending. Negotiation means that they are prepared to make compromises on the very things they have been prepared to kill and be killed for. It is easy to understand how difficult it is to mediate the end of a conflict

Even if mediation is successful, we know that the prospects of securing lasting peace are not great. Research indicates that anything between 50 and 60 per cent of conflicts relapse. Even for those that do not relapse, the peace is frequently a negative one – “the absence of war”, “non-lethal coexistence”. Securing a negative peace is of course better than no peace at all, but it offers little in the way of hope or progress for the populations in question.

What can be done to enhance the prospects of short and medium term peace so that it offers tangible benefits to those who have suffered, persuading them that peace is not only an end to violence but also offers a genuine prospect of dignity and progress, and that sees a role for them to play in securing those benefits?

By: Paul Seils

Looking for tangible rights-based benefits to peace

The concise answer to this is that mediation efforts might focus more on rights-based benefits in the short and medium term. This way people can see citizenship and rights as indispensable elements to consolidate peace. They provide a reason to believe in something positive for the present, not just the future. It would move human rights and citizenship from the theoretical and academic to the concrete and the tangible. It would demand agency and interest from citizens in the first place, asserting their rights but would also provide a clear roadmap for governments to prove that the dignity of citizenship meant something meaningful in the new conditions of peace. Governments would demonstrate respect for the duties they owed not because of the political benefits or the pursuit of influence and patronage, but because of the impartial, non-sectarian commitment to a lasting peace, and to all citizens having the same fundamental rights and dignity.

Conflict Justice

So, is this a new idea? Obviously a lot of peace processes focus on issues related to human rights and dignity. What many, even most, do not do is frame the delivery of short and medium term benefits as a rights-based dividend and as an integral element of a settlement. Rather, most often when we talk of justice and human rights in peace efforts the assumption today is that we are talking about “transitional justice”.

This field was developed largely in political transitions from repressive, authoritarian regimes to democratic societies. It is about establishing accountability for abuses committed, normally by former regimes, to help restore the rule of law and democracy. While that definition has been expanded in different directions over time, its relevance in armed conflict more generally needs careful reflection. We think it is better to call what we are talking about “conflict justice”. Our primary focus is not in the longer term effort to restore the rule of law through holding institutions and individuals to account for human rights violations: it is in helping to secure and stabilize peace by ensuring that peace provides tangible benefits most immediately demanded by victims of the conflict. Those benefits should be framed as the vindication of fundamental rights. In this way a base can be built that allows people to experience rights and citizenship as meaningful indicators of progress and an incentive for investing in peace.

Transitional Justice

The conventional understanding of transitional justice often revolves around certain “mechanisms”: criminal prosecutions, truth commissions, reparations programmes, and measures of institutional reform. Argentina, Chile, South Africa, El Salvador and Guatemala constitute the core experiences that frame the conventional approach to transitional justice.  While significantly different, these countries nonetheless shared a number of characteristics. First, they had strong, if abusive, institutions, which could be shaped towards public service; second, they had, more or less, political opposition ready to contribute immediately to a new political dispensation; and third, they had articulate and coherent civil society organizations, especially on issues of victims rights. Taken together, these conditions established a fertile ground for the application of transitional justice processes.

There was nothing exceptional in the mechanisms of transitional justice themselves. They had existed in one form or another for a long time. It was their application against the abusive state that was exceptional. It was the contexts that made the mechanisms and approaches useful for the attempt to restore the rule of law and trust in institutions. Where the same conditions do not appear, the chances of the approaches having the same benefits diminish significantly. Indeed the less they appear, the more we should ask whether we should be framing our objectives in the same way. In most cases where mediation ended armed conflicts in the last twenty years those same types of conditions have not been present.

A changing world

Just as the main lessons from the five countries we mentioned were transforming into a kind of doctrine, or a toolkit, the number of countries emerging from repression to democracy was dwindling to a halt. Indeed one expert, Thomas Carothers, suggested that the “transitional paradigm” had become exhausted by the beginning of the 21st century.

During the same period one of the attractions many policy makers saw in transitional justice also began to diminish. In all of the examples mentioned except Argentina the idea of criminal justice was absent or played a very small role. Some saw this as one of the main benefits of transitional justice – a principled approach to human rights violations that did not destabilize reform efforts by threatening abusers with prison.  Critics saw it is as no kind of justice at all. (One well-known human rights lawyer once said to me that transitional justice was to justice what military music is to music).

The demand for criminal justice as a response to human rights violations took root in the last years of the 20th century. The UN established courts for former Yugoslavia and Rwanda and in 1998 120 states signed up for the ICC.  At the same time, regional human rights courts had established core obligations to investigate, prosecute and punish serious violations. As a result de jure or de facto amnesties that had been a signature element of almost all early transitional justice experiences became a great deal more difficult if not impossible.

Square pegs and round holes

The 21st century has seen a number of wars and violent conflicts. The UN and other international or regional bodies have played a role in trying to help resolve these conflicts. The consolidation of transitional justice as the principal means to address widespread human rights violations in the conflicts has figured prominently, but frequently with little success. In some cases, despite the oft-repeated line that there is no one-size fit all solution, we seem to see an unreflective approach to the application of a toolkit that may have little resonance or relevance.

In a short time, instead of being applied to the limited but fertile situations noted earlier, the toolkit was promoted anywhere massive human rights violations or crimes had taken place. This included enormous civil wars, often where the war had not ended or where a mediated end meant that very substantial power continued with the alleged perpetrators of crimes. More significantly an increasing number of countries bore few of the kinds of characteristics we have highlighted above.

One example of a misplaced toolkit approach is the 2015 Addis Ababa agreement on the South Sudan conflict that approved the creation of a hybrid court, a truth, reconciliation and healing commission, a reparations program and institutional reform measures.  The assumption was that a human rights approach demanded justice for victims and that the “transitional justice toolkit” was the means by which that could be achieved. The agreement did not end the conflict. It is difficult to believe that even if it had been successful that the conditions were present in South Sudan for most or any of the transitional justice aspects to bear fruit.

But this is not a recent phenomenon. The 2002 Sun City Agreement to end the wars in the DRC included ideas that were largely a transposition of the South African process of the 1990s, including the truth and reconciliation commission. South Africa and the DRC faced materially different challenges with massively different means. The TRC failed completely, not even completing its mandate. The army was reformed but amounted in some cases to the integration of pre-existing militias more or less intact. Institutional elements of the army have continued to be a source of serious instability and criminality. Unsurprisingly there has been little in the way of reparation given the economic circumstances of the country

In places like Syria and Iraq we see well-intentioned proposals again framed around the template of transitional justice. In Iraq the Government has defeated an insurgent (ISIS) with international help. This in fact is quite distinct from the initial ideas of transitional justice holding abusive government institutions to account. There is no political transition, but rather a military defeat of an insurgent. If this is transitional justice, it is a repurposed idea of it. Likewise a focus solely on ISIS abuses risks obscuring deeper causes of division, including the legacy of the US-led invasion itself.  There is much to be done in Iraq but the instability remains a very real threat. Securing the peace requires demonstrating its worth through clearly focused efforts to end dehumanizing sectarian narratives and address the worst impacts of the conflict. These are better understood as the aims of short and medium term conflict justice.

In Syria the challenges are of a different order. No peace deal is imminent and the war continues with atrocities commonplace. Over half of the population is displaced internally or living as refugees abroad. Any serious solution requires that the displacement crisis is addressed as a priority. Yet, the issue of IDPs and refugees is rarely given the attention it requires. Far from suggesting the promotion of premature return, the focus has to be on guaranteeing minimum conditions for a dignified return. A failure to do this will guarantee instability not only in Syria but also in the surrounding region and beyond for generations.

A different focus

Where the conditions are appropriate it makes perfect sense to try to (re-) establish trust and confidence in the rule of law through accountability processes. But in many places the immediate challenge is to ensure that conflict does not relapse and that the peace offered is meaningful. In these situations the idea of a human rights based approach has to conceive of something broader than simply accountability. A genuine rights-based approach has to offer a tangible benefit to victims of conflict. It needs to show that peace means a real improvement in dignity, protected by a meaningful approach to the rights of all citizens.

For instance, we know that most conflicts provoke enormous dislocation and displacement. As such the shortest route to establishing a sense of citizenship and dignity based on rights may be to remedy these brutal consequences of war. Yet, the failure to address these issues as a priority, and as a practical way for governments to demonstrate a new relationship with its citizens, is all too frequent.

We also know that in many cases of serious conflict there is often an important practice of local and traditional justice processes. There has long been a resistance to these processes due to their sometimes patriarchal, gender-insensitive approaches (among other concerns). If traditional approaches can be made sensitive to gender issues, apportion humane penalties, and be connected to notions of rights and citizenship, they perhaps offer a useful and promising route to deliver justice and reconciliation in a way that resonates with local realities.

Connected to these issues are questions of compensation. Transitional Justice processes have often focused on reparations processes premised on institutional or individual responsibility, involve cumbersome bureaucracies, take a long time to deliver and generally disappoint in terms of results. Often victims of conflicts need to see much more rapid progress in having the means of survival that were ripped from them at least partially restored. There is no compelling reason not to present such efforts as based on fundamental rights and citizen dignity.  Often local and traditional processes could help to make a difference in these circumstances.

Nothing in the idea of conflict justice suggests there is not a need to understand and acknowledge what has happened and why it has happened, but that does not imply the need for the creation of the tired model of truth commissions that have often had little or no impact in the kinds of countries we are concerned with. How we find out what happened and why can play a crucial part in addressing the dehumanizing narratives at the heart of many conflicts. How we do that should depend on what makes sense in the local context, not according to an established model whose relevance is increasingly questionable.

What is suggested above are examples, not an alternative toolkit. It is the unreflective applications of toolkits that we need to move away from.

What happened to reconciliation?

One of the attractions of the transitional justice discourse in its early days was its promise of reconciliation. The term was used explicitly first in Chile and then in South Africa. The word is contentious. The view that it was too often a demand to be made of victims to forgive abusers or to promote amnesia has led to the issue effectively being “parked”. Yet, it is surely obvious that any notion of a positive peace requires something that relates to a notion of reconciliation. At best it requires not only a commitment to peaceful resolution of differences but genuine respect for those differences.

Any effort asserting dignity of all citizens will often mean engaging in processes of humanization, redressing the narratives of hatred and alienation. The effects of dehumanization on targeted groups which are supposed to participate in restoration of trust crucial to lasting peace are often key obstacles to its consolidation. The cementation of perception of “the other” as a continued threat undeserving of basic rights hinders prospects for reconciliation and increases capacity for extremism in the targeted community. The issue of course is not to eradicate difference or dispute, but to respect the right to difference and dispute.

While we recognize different forms of reconciliation – individual, interpersonal, socio-political and institutional – we need to do more to flesh out what are acceptable and actionable ideas of reconciliation. The notion of conflict justice suggests that it should be based around the ideas of dignity and citizenship, made manifest through tangible rights-based gains.

Four guiding ideas

We believe there are four ideas that can help to establish conflict justice as a useful contribution to peace making and conflict prevention:

1.      To see justice in conflict and post conflict situations as a means of providing a rights-based, tangible benefit for victims

2.      That mediators and parties adopt a constructive attitude to making such benefits integral to settlements

3.       To stop assuming the transitional justice toolkit is always well-suited to the context

4.      To embrace a notion of justice that is broader than accountability.

Any country emerging from long-term repression will face elements of instability, but if they have strong institutions, able and organized political structures, and a capable, motivated and influential civil society, the toolkit of transitional justice might be of some use. For societies emerging from brutal conflicts where atrocities have abounded and society has been ruptured and dislocated in a profound way, they are starting from a different baseline. Conflict justice recognizes that difference and seeks to identify a rights-based approach relevant to that reality to make peace stable and provide a basis for a hopeful dignified future.