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Justice in Wrecked Communities Are truth commissions preferable to war crimes tribunals in establishing the basis for a sustainable peace in post-conflict societies? The proliferation of intra-state globalised wars after the end of Cold War (Kaldor, 1999) and the great importance attributed to the promotion of a culture based on human rights (HR) and democratic values, created the basis for the spread of transitional justice (TJ) operations- the struggles of a society to face a legacy of large-scale abuses to achieve accountability, justice and reconciliation (Aucoin, 2007). This essay evaluates the positive outcomes of two different TJ approaches, namely the retributive and the restorative models. The topic constitutes one of the most problematic aspects of the relationship between conflict, security and development in war-afflicted countries. Hence, it concerns the shift from humanitarian towards peace- building operations, increasingly pursued since the 1990s in ‘internationalized territories’ to reduce the threat of relapse into violent conflict, create a durable political settlement and a viable state (Caplan, 2005:28). This paper explores the role of justice in peace-building and focuses on a critical dilemma: to what extent the need for democratic peace and stability in the present and 1

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Page 1: Justice in Wrecked Communities

Justice in Wrecked Communities

Are truth commissions preferable to war crimes tribunals in establishing the

basis for a sustainable peace in post-conflict societies?

The proliferation of intra-state globalised wars after the end of Cold War (Kaldor,

1999) and the great importance attributed to the promotion of a culture based on

human rights (HR) and democratic values, created the basis for the spread of

transitional justice (TJ) operations- the struggles of a society to face a legacy of large-

scale abuses to achieve accountability, justice and reconciliation (Aucoin, 2007). This

essay evaluates the positive outcomes of two different TJ approaches, namely the

retributive and the restorative models. The topic constitutes one of the most

problematic aspects of the relationship between conflict, security and development in

war-afflicted countries. Hence, it concerns the shift from humanitarian towards peace-

building operations, increasingly pursued since the 1990s in ‘internationalized

territories’ to reduce the threat of relapse into violent conflict, create a durable

political settlement and a viable state (Caplan, 2005:28). This paper explores the role

of justice in peace-building and focuses on a critical dilemma: to what extent the need

for democratic peace and stability in the present and future can be reconciled with the

moral imperative of truth and justice in the past? Challengingly, in the aftermath of a

conflict, powerful actors shape the pre-existing relationships of force in state

institutions and economic inequalities (Foucault, 1975; Doyle, 1986). Hence,

designations of post-conflict ‘peace’ will fundamentally depend on the political forces

affecting a certain country. First, this paper examines the relationship between TJ and

peace-building processes. Second, it analyses the long-term effects on the peace

process achievable through the work of war crimes tribunals, on the one hand, and

truth commissions (TCs), on the other. Third, it argues that TCs are not preferable to

criminal courts in the pursuit of sustainable peace. However, the establishment of

such non-judicial bodies, in interrelation with criminal courts, is desirable to address

victims’ needs more directly and to face larger patterns of abuses. Finally, it claims

that any TJ mechanism alone can foster a long-term peace within a society previously

vexed by massive atrocities. It is rather the combination of such apparatuses, within a

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more holistic approach, that may succeed in achieving constructive steps forward in

the development of this purpose.

The definition of the best means required to achieve a determined goal, certainly

depends on the delineation of the goal itself. For this reason, before engaging in an

examination of which TJ mechanism better answers to the necessities of post-conflict

societies, an explanation of the concept of ‘sustainable peace’ is essential. There is no

universally accepted definition of sustainable peace. While the adjective ‘sustainable’

commonly indicates the ‘ability to be maintained at a certain rate or level’ (Oxford

Dictionary), the core of the term ‘peace’ is more difficult to delineate. Over the

competing definitions, this essay refers to a positive notion of peace, not related to the

mere absence of violence, but rather to the promotion of cooperation and integration

among communities and states (Luckham, 2004). Indeed, since the conflict and its

legacies generate new political realities, sustainable peace does not concern the sole

return to the pre-war condition, but ‘the elimination of unacceptable political,

economic, and cultural forms of discrimination; a high level of internal and external

legitimacy or support; self-sustainability; and a propensity to enhance the

constructive transformation of conflicts’ (Reychler, 2001:12). Thus, it encompasses

the ‘political capacity’ to manage conflict (Cousens and Kumar, 2001:12), as well as

the development of political and legal institutions that can prevent group grievances,

which naturally characterize a society, from degenerating into violent clashes. In the

context of post-conflict societies, where ‘open warfare has come to an end’ (Junne

and Verkoren, 2005:1), the achievement of a similar scenario becomes particularly

difficult, since high levels of tension and internal fracture elevate the possibility for

violent conflict to re-emerge. The combination of vulnerability in post-conflict

societies and the aspiration of Western democracies to promote liberal values for

achieving peace led to the implementation of the sole paradigm of ‘liberal

internationalism’- foreign policies that naturalize the belief that developing states

should engage an incessant process of evolution toward political and economic

liberalization in order to achieve peace (Paris, 1997:56; Junne and Verkoren, 2005;

Doyle 1986). This pattern has been executed in various UN ‘Transitional

Administrations’ through the lasting engagement in promoting liberal, democratic and

capitalist structures (Caplan, 2005:5). However, the idea that the international

community can craft peace through the reconstruction and development of entire

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states and societies reflects the hubris of the major donors and international bodies,

rather than the real possibilities achievable through peace-building operations

(Luckham, 2004; Paris, 2005).

The term TJ, coined by Kritz in 1995, covers one area of peace-building and is

grounded on the assumption that judicial and non-judicial processes are required in

order to provide post-conflict societies with justice for past abuses and enhance peace

(Villalba, 2011). The belief that justice stands as the foundation for peace represents

one of the main pillars of the Western political thought and trace of this correlation

can be found in the Biblical tradition- ‘The way of peace they do not know, and there

is no justice in their paths’ (Isaiah, 59:8). TJ developed in response to the claims for

justice during the political transitions taking place in Latin America and Eastern

Europe in the 1980s and 1990s and concerns the process of acknowledging and

prosecuting past crimes after civil conflicts (US Institute of Peace, 2008). Since it

takes place in societies devastated by massive and widespread atrocities, is directed

beyond the physical and economic effects of war to the social and psychological

effects on victims and communities (Maynard, 1997). Controversies arise in the

determination of which TJ paradigm most effectively addresses, both, the systematic

abuses of former regimes and the political ongoing changes (United Nations, 2008).

For instance, two opposing models claim the ability to address the needs of post-

conflict societies: war crimes tribunals seek retributive or political justice, and are

directed at the losing party of the conflict in order to deter and repress future

atrocities, while TCs provide restorative justice and struggle against social, political

or cultural injustices through the promotion of forgiveness and reconciliation (Elster,

2004). These approaches seems to characterize diverse visions of how a society

should be rebuild in a period of transition after a violent conflict and their relationship

is often described as one of incompatibility between justice and truth (Maynard, 1997;

Cohen, 1995).

Advocates of retributive justice, called maximalists, believe that future violence can

be avoided through the establishment of the rule of law and the subsequent

strengthening of democracy (Olsen et al., 2010). They associate justice with legal

prosecutions that typically encompass a person accused with the commission of a

crime to be judged by an arbitrator, who will determine his penalty (Quinn, 2013). In

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this sense, prosecutions can provide the most direct form of accountability by making

a clear break with the abusive past and establishing the basis for self-sustaining peace

to emerge (US Institute of Peace, 2008). The prime benefit is the public

acknowledgement of the actions committed. Indeed, during an open trial, the dynamic

and occurrence of past atrocities are examined and often truthfully divulged for the

first time, referring a strong social message that criminal actions will not be tolerated

in the future (Quinn, 2013). This commitment against impunity fosters the foundation

of a peaceful environment by demonstrating the willingness of the new government to

move away from the past (US Institute of Peace, 2008). Moreover, the core rationale

behind prosecutions, that perpetrators of horrendous crimes must be punished for the

actions committed, is directed towards the removal of the offenders from the relevant

environment, as well as to the creation of deterrence effects- inhibition of similar

crimes to be committed in the future (Quinn, 2013). Furthermore, the capability to put

trials in act is a clear symptom of the viability and functioning of the judicial system

and of its ability to transfer the authority of the law on the territory, since the failure to

prosecute would produce a ‘culture of impunity, erode the rule of law and encourage

vigilante justice’ (Olsen et al., 2010:983). Therefore, prosecutions are likable to

promote sustainable peace because they encourage the revival of legal order and

reaffirm the trust in public institutions (US Institute of Peace, 2008). The case of

Zimbabwe illustrates how the broken links of solidarity among citizens and the

promotion of accountability can be reconstituted by litigation in domestic courts and

the representation of powerful individuals against high-level government actors

(Freedom House, 2013).

Moreover, retributive TJ is conduced through different judicial levels, because

domestic courts cannot address the size and complexity of mass crimes and they are

often seen as politically biased, due to long periods of authoritarian control (US Peace

Institute, 2008). Hence, prosecutions have to be sustained by strong political will, and

this can lack if perpetrators or political factions associated with them are still in power

(ibid.). During the 1990s, the international community developed mechanisms of

enforcement in cases where the national tribunals are unwilling or unable to do so

(ibid.). These new models of prosecution, namely international courts and hybrid

tribunals, represent the pieces of an international system of criminal law fostered by

global civil society networks- movements for a new global political order (Keane,

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2003; Quinn, 2013). They provide essential resources and knowledge to the afflicted

country and attest the commitment of the international community to prosecute the

most serious international crimes- genocide, torture, crimes against humanity, war

crimes (US Institute of Peace, 2008). Due to the failures of the International Criminal

Tribunals for Yugoslavia and Rwanda (ICTY and ICTR) to meet the expectations of

the victims and communities involved in the massacres, the first permanent

International Criminal Court (ICC) was created, together with hybrid models of

prosecutions (Ramirez-Barat, 2011). Such progresses represent the propensity of

international criminal justice to create outreach programs-direct channels of

communication with the affected communities- and to provide consistent international

resources and expertise, which ultimately enhance the credibility of courts and

promote sustainable peace (Aucoin, 2007).

However, in the aftermath of widespread and brutal HR violations to guarantee justice

for all the victims by attributing the adequate sentence for every perpetrator is not

possible. The scarce availability of human and technical resources and the feasibility

of principles such as the ‘duty to prosecute’ remains uncertain, at best, due to the huge

number of individuals involved and to the difficulties in investigating and prove large

patterns of abuse (Minow, 1998). Also, the liberal idea of individual responsibility,

linked to the rationality of individuals, results problematic in the case of massive HR

abuses, because the logic of law can hardly explain of the illogic of brutal massacres

(Osiel, 1997; Langer, 1995). Furthermore, controversies arise in the selectivity of

suspects and of crimes- the decision over which situations and personalities to

prosecute- that can undermine the sense of fairness of the judicial process (Minow,

1998; Glausius, 2009). For example, problems arose when the chief prosecutor of the

ICTY decided to withdraw fourteen indictments accused of rape, creating discontents

among victims and the afflicted Bosnian population (Minow, 1998). Even if the

decision was due to budgetary and time constraints and reflected the willingness to

balance the available resources within the trial, it nevertheless proved the failure in

the pursuit of justice and respect for victims’ rights (ibid.). Moreover, the ICTY was

reliant on the political opinions of the United Nations’ most powerful members and it

depended on influential states for matters of resources, decisions and operations

(ibid.). In order to avoid such controversies, prosecutions have to respect the legal

requirements of fairness and impartiality and to follow clearly established procedures,

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such as the norms contained in the International Covenant on Civil and Political

Rights and the Rome Statute (US Institute of Peace, 2008).

Even recognizing the incompleteness and insufficiency of the retributive approach, an

action to restore self-enforcing peace in scenarios of devastation needs to be taken

using the instruments of criminal courts (Minow, 1998). This may be realized by the

combination of ‘honest modesty’ (ibid.:51) about the results achievable from

retributive processes and the acknowledgment that prosecuting HR violations is the

most direct form of accountability possible in the aftermath of a civil war.

Promoters of the moderate or restorative approach challenge the effectiveness of trials

in increasing the pacification of societies disrupted by tremendous brutalities, arguing

that prosecutions potentially perpetuate more violence and instability (Osiel, 2000).

They consider TCs- ‘bodies established to look at widespread HR violations that took

place during a specified period of time, on a temporary basis, by a state, often in

conjunction with opposition forces and/or the involvement of the international

community’ (Quinn, 2013:333)- as the sole means capable to create sustainable peace,

because of their scarce destabilizing effects. These include the mobilization of anti-

democratic forces, linked to the previous authoritarian regime or security apparatus,

with the goal of jeopardize the democratic transition (Olsen et al., 2010). Hence, TCs

seek to address the psychological damages derived from the exposure to

mistreatments experienced by civilians living in war zones (Maynard, 1997). Victims

are not re-traumatized by the ‘financial and emotional costs of litigation’

characterizing trials, such as testify and cross-examination (Minow, 1998:58).

Since the 1970s, more than thirty TCs were established, mainly in Latin America and

Africa (Quinn, 2013). They ought to promote peace employing a broad focus over the

full range of abuses committed, and to seek educative effects through the announcing

of testimony, as well as the final report containing the details of crimes (ibid.). Also,

the cost of TCs is low if compared to the one of trials, since they do not involve as

many infrastructures and personnel as the latters (ibid.).

The prime added value of TCs resides in the focus on victims, which are dignified and

empowered through the restorative process, in opposition to the sole attention on

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perpetrators attributed to war crimes tribunals (ibid.). That the official role of victims

in trials is restricted to deliver witness testimony in a formal procedure is not to be

denied. However, acknowledging the formal limitations and purposes of the trial

itself, is possible to prevent feelings of being ignored or manipulated during the

prosecution (US Institute of Peace, 2008). Furthermore, the logic shaping retributive

justice is criticized for preferring guarantees for the rights of defendants over truth-

seeking, while TCs are believed to offer a more complete account over the causes and

consequences of conflict (Minow, 1998). Yet, retributive trials reaffirm the truth

concerning the value of the victims, by inflicting a public penalty to their perpetrators

(ibid.). Hence, their limited focus on individual perpetrators does not undermine the

identification of broader patterns of violence, but requires the engagement of TCs to

investigate the widespread patterns of HR abuses in conjunction with tribunals (US

Institute of Peace, 2008).

If we look at the Ugandan case, a TC was created in 1986 to inquire the circumstances

and causes of the massacres occurred between 1962 and 1986, as well as to evaluate

the role of state institutions in HR violations (Quinn, 2013). Sadly, very little results

were obtained in the country due to a variety of situational constraints: excessive

gauge of mandate, lack of evidences, pace, scarcity of funding and lack of political

will (ibid.). The last limitation depends on the fact that these non-judicial bodies are

primarily based on the active participation of the population in the afflicted country

(ibid.). Therefore, the sense of skepticism and distrust among the Ugandan

population, which had been vexed by terrible violence perpetrated by the government

for decades, made it impossible to believe in the initiative supported by the new

regime in power. Hence, the work of the Commission was ‘negligible’, since it

involved only a small part of the whole population (ibid.:340).

The Sierra Leone case further highlights the limitations of TCs for achieving long-

term peace in regard of time constraints and institutional weakness. The Commission

was settled with the purpose of acknowledging and comprehending the country’s

horrific past, but such goal was not to be accomplished within its two years mandate

(Dougherty, 2004). Moreover, various recommendations were not executed as a

consequence of deficiency of judicial and legal influence (ibid.). This situation

created frustration and disillusionment in the members of the community and worsen

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the possibility for a pacific situation to mature (ibid.).

These examples illustrate how the accomplishment of a sustainable peace in post-

conflict societies may be addressed only by the combination of different TJ

mechanisms, both judicial and non-judicial, within a holistic approach (De Bortoli,

2014). Although TCs were created for the noble purpose of providing an alternative

healing approach to enormous individual and social damages, their effectiveness often

remains feeble. For instance, even in the most successful case where restorative

justice took place, namely South Africa, the TC was only a partial stepping stone in

the process toward national reconciliation and peace (Minow, 1998). Its successes

were connected to the particular political situation existing in the country when the

apartheid ended: the voting rights acquired by the black majority infused a real sense

of security, while the whites’ control over huge amounts of economic resources made

national unity a necessity (ibid.). Furthermore, the TC was not the sole apparatus

employed in the transition, since its successes- submissions and evidence from over

20.000 victims- were enforced by the concession of amnesties to lower perpetrators

participating in the TC’s struggle, together with prosecutions for apartheid security

forces (ibid.).

Ultimately, inquiry into facts and reconciliation pursued by TCs do not replace justice

or punishment for perpetrators of atrocities, so that, in the reality of post-conflict

situations, both retributive and restorative models serve as means to achieve

sustainable peace (Murphy, 1998). Indeed, post-conflict transition and long-term

peace cannot be guaranteed by making a choice between justice and truth or between

vengeance and forgiveness. According to Kofi Annan, TJ requires the ‘full range’ of

‘both judicial and non-judicial mechanisms, with differing levels of international

involvement and individual prosecutions, reparations, truth-seeking’ (Aucoin,

2007:42). This is due to the fact that the social damages affecting nations after a civil

war are so deep and broad that they are unlikely to be solved by a unique model of TJ.

During the Rwandan genocide, a large number of women were publicly raped and

over ninety-one percent of the children faced a death in the family (UNICEF, 1995).

In this horrific situation, the creation of a sustainable peace by employing uniquely

retributive or restorative justice systems represents, at best, an utopian goal (Aucoin,

2007). The complex legacies afflicting post-conflict societies require the

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reconciliation between the prevention of a culture of impunity, on the one hand, and

mechanisms that are more sensitive to the needs and vulnerabilities of the victims, on

the other.

TCs are grounded on the assumption that providing victims with the chance to tell and

hear the truth will have healing effects on them and, more widely, on the whole

community (Minow, 1998). However, if this process certainly succeeded in the South

African case, it is unlikely to improve the grave situations afflicting many others post-

conflict societies. In the poem Unchopping Tree, Merwin (1970) expresses the

limitations of TCs in the aftermath of a civil war. The impossibility of restoring a tree

when its twigs, branches and leaves have been totally broken is used as a metaphor to

portray the wrecked pieces of a community destroyed by massive war-related

atrocities. Even if the tree would be agonizingly reassessed it would remain

surrounded just by dead leaves. Similarly, survivors of civil wars cannot be healed by

the sole truth-seeking when enclosed in a situation of loss and devastation.

In order to face terrible large-scale abuses and to reach some form of peace, the

international support to affected countries should operate not only by addressing

individual punishment or injury but putting an end to the physical and social chaos

affecting the whole community (Maynard, 1997). Such goal cannot be pursued by

temporary ad hoc TJ mechanisms but has to include diverse justice models in a broad

and holistic approach. Starting from the assumption that each conflict situation is

unique, peace-building measures ought to encompass an inductive or problem-driven

approach, which begins with the causes and effects of particular conflicts and seek to

devise TJ strategies accordingly (Cousens and Kumar, 2001).

In this regard, evidences from the Transitional Justice Data Base (TJDB) project

reveal that only the combination of different TJ mechanisms may positively affect HR

and democracy and, subsequently, create a space for the progress of sustainable peace

(Olsen et al., 2010). The project takes into account TJ processes occurred in all the

countries of the world between 1970 and 2007 and is grounded on the Keesing’s

World News Archives as its primary source (ibid.:991). It demonstrates that the two

paradigms examined in this essay are not inevitably exclusive or opposing and, rather,

that only the combination of trials and TCs, together with amnesties, can advance the

initial TJ goals- democracy and HR promotion (ibid.).

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In fact, trials are crucial to determine the legal and moral accountability required to

deter future HR abuses in the aftermath of a civil war (ibid.). However, in cases of

‘negotiated transition’ after a conflict, that is where the prior authoritarian regime still

possesses consistent political strength, amnesties are necessary to avoid the

jeopardizing of the democratic evolution by ‘potential spoilers’ (ibid.:997). Indeed,

conflicts do not simply end because the social, political and economic dynamics

supporting them remain alive in other criminal forms (Luckham, 2004). According to

De Bortoli (2014), TJ bodies that are used in isolation ‘have a tendency to be

disregarded as nothing more than words’. The importance of TCs resides in the fact

that they address the victimhood of individuals involved in HR abuses, but they

remain nothing more than a symbolic recognition if not accompanied by concrete

political and legal efforts (ibid.). Hence, TCs are unable to operate effectively if

lacking the accountability and stability provided by trials and amnesties (Olsen et al.,

2010). Trials, on the other hand, reveal the capacity and willingness of fighting

impunity and enforcing the rule of law over political and economic powers (ibid.).

In conclusion, so far, TJ established the foundation for a sustainable peace only when

war crime tribunals and TCs have been combined in a comprehensive strategy. Both

paradigms seek to create peace in societies where massive abuses eliminated the

possibility for the state to sustain healthy relations and to respond to personal and

general needs of its citizens. The basis for peace to develop after civil conflict ought

to be grounded on long-term capacity building and the establishment of the rule of

law. To achieve this goal, the sole employment of TCs is insufficient but their action

is needed to address more directly the needs of victims and to face broad patterns of

abuses. Rather than describing them as mutually excluding paradigms, these two

approaches have to be coordinated, while maintaining their distinctive features.

Indeed, if the short-term strategy of each field may differ, their congruent ultimate

goals make their combination possible and desirable. Both approaches aspire at

accomplishing the same goals and they can be concurrently used as parts of a holistic

TJ approach.

The pervasive necessities of post-conflict societies are expressed by the words of a

survivor of the Rwandan genocide: ‘in a normal situation, one can get support and

assistance from school, extended family, work, the state. All these are gone in war.

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There is nothing. You can’t trust anyone. All is gone. There is no protection. The

teachers, the mayors, even the family has killed’ (UNICEF, 1995). Due to the

complexity of the conditions on the ground and to the horrific consequences of HR

violations, the realization of any form of sustainable peace have to move beyond the

paradigms of retributive or restorative justice and, more importantly, further than the

sole liberal capitalism paradigm.

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