Post-conflict Justice Research Articles

Rethinking amnesties: atrocity, accountability and impunity in post-conflict societies

The notion of accountability that is propagated in transitional justice often appears limited to demands for the prosecution and imprisonment of those who have been involved in serious human rights violations. Amnesties, widely understood as the absence of punishment for wrongdoing, are in turn considered by many scholars and activists as an example par excellence of the kind of Faustian pacts which are made in the name of political expediency in transitions from conflict. Drawing from a range of interdisciplinary literature, as well as research completed by the authors in a number of societies with a violent past, this paper uses amnesties as a case study to argue for a more rounded interrogation of the notion of accountability in transitional justice. The paper charts the various forms of intersecting accountability which both shape and delimit amnesties at key ‘moments’ concerning their remit, introduction and operation. The paper concludes that the legalistic view of amnesties as equating to impunity and retribution as accountability is inaccurate and misleading. It argues that a broader perspective of accountability speaks directly to the capacity for amnesties to play a more constructive role in post-conflict justice and peacemaking.

The Pursuit of International Criminal Justice: A World Study on Conflicts, Victimisation, and Post-Conflict Justice

The Pursuit of International Criminal Justice: A World Study on Conflicts, Victimisation, and Post-Conflict Justice

Women, Art and Post-Conflict Justice

AbstractThis article addresses the creative agency of women within the context of post-conflict or transitional justice (TJ). Specifically it seeks to underscore the diverse ways in which women in societies emerging from violent conflict and its attendant gender-based violations and atrocities use art and creative media to pursue the objectives of justice. The aims of this article are twofold: first, this article draws attention to the need for local stakeholders in war-affected communities and their international supporters to go beyond official mechanisms of transitional justice; to integrate cultural justice by recognising and encouraging aesthetic and creative means of pursuing justice after violent transitions, and women's particular capacities in this domain. Second, alongside the drive to treat women as more than victims by recognising their political agency in shaping peace and justice, this article draws attention to the need to recognise the creative agency of women and its valuable albeit intangible benefits for TJ and peacebuilding.

Investigating Outcomes of a Limited Gender Analysis of Enslavement in Post-conflict Justice Processes

The image of women sex slaves or sexually violated women in armed conflict has begun to dominate and shape international interventions, including justice, peacebuilding and development processes in post-conflict societies. Such interventions respond to women as ‘rape victims’ when in fact women have more complex narratives of their wartime experiences – experiences that may indeed include rape but also embrace community leadership, anti-war protest, military training and economic profit from wartime livelihoods. Furthermore, an exclusive focus on ‘sex crimes’ precludes an analysis of femininity(ies) and masculinity(ies) and the ways these gender identities shape modes of violence and victimisation. This article provides a comparative overview of interdisciplinary research representing both narrow and broad gender analyses of enslavement as well as emerging legal definitions of enslavement provided by the case law, indictments and statutes of contemporary international tribunals in The Hague, Tokyo and Freetown respectively.1

Collective Responsibility and Post-Conflict Justice

How best to secure justice in the aftermath of mass atrocity? International criminal tribunals – and courtrooms and jailhouses generally – have emerged as influential accountability mechanisms. Yet the justice pursued by international criminal tribunals, although tangible, also is strikingly under-inclusive. These limitations suggest that adequately redressing collective violence might contemplate a discursive shift to inclusively incorporating other accountability mechanisms, including collective forms of responsibility. Collective responsibility implies non-criminal sanctions that attach to groups whose misfeasance or nonfeasance is supportive of, acquiescent in, causally connected to, or necessary for serious violations of international criminal law to occur. This paper examines what collective responsibility mechanisms might look like; what ends they might serve; what dangers they pose; and how they might contribute to a more robust instantiation of post-conflict justice.

Addressing Sexual Violence in Internationally Mediated Peace Negotiations

Negotiated peace agreements rarely address the legacy of wartime sexual violence committed by state and non-state armed actors, even in cases where mass rape has been a prominent feature of the conflict. This article examines why this has been the case. It assesses the implications of UN Security Council resolution 1820 (June 2008), which calls for internationally mediated peace talks to address conflict-related sexual violence; advances reasons why doing so may contribute to more durable peace; and outlines where specific textual references to sexual violence in peace agreements could enhance the well-being of survivors and reduce the chances of brutal and widespread sexual violence persisting in the post-conflict period. The article focuses on five types (or elements) of peace agreement: (1) early-stage agreements covering humanitarian access and confidence-building measures; (2) ceasefires and ceasefire monitoring; (3) arrangements for demobilization, disarmament and reintegration (DDR) and longer-term security sector reform (SSR); (4) post-conflict justice institutions; and (5) provisions relating to reparations for victims of serious human rights abuses.

Restoring justice in Serbia: Reconciliation and restorative justice in a post-war context

The debate on how to deal with the past in Serbia is an ongoing one. Both the International Criminal Tribunal for ex-Yugoslavia and national criminal justice mechanisms have played an important role in prosecuting offenders. Other transitional justice approaches continue to be discussed. All in all, the Yugoslav and the Serbian cases are similar to other debates about 'dealing with the past' or 'transitional justice', as they are taking place between elites, political, economic, and within civil society, both in the country concerned and at the international level. Likewise the views and expectations of the local populations in any given country are very rarely taken into account. In this paper findings of a population-based research carried out by our research team in Serbia in 2007 are presented. The research was done by means of a quantitative survey across the country on several issues of post-conflict justice, including truth seeking, accountability, reparation for victims and reconciliation.

Trauma and Vengeance: Assessing the Psychological and Emotional Effects of Post-Conflict Justice

Do war crimes tribunals or truth commissions satisfy victims of war and atrocity and provide psychological relief from war-induced trauma? Do they make victims less vengeful and less likely to engage in or support violent retribution? Or does the experience of post-conflict justice simply reinforce and exacerbate emotional and psychological suffering? Answers to these questions are central to the logic of truth-telling’s peace-promoting effects in post-authoritarian and post-war societies. Indeed, one of transitional justice’s core arguments is that victims of wartime abuse demand truth and justice. These arguments, however, assume that truth-telling processes, on average, provide psychological and emotional benefits to victims. Some critics have argued, however, that they actually cause more harm than good. Although victims’ preferences for truth and justice are well documented, we know considerably less about their actual impact. This article assesses that impact by surveying the extant empirical evidence from prominent cases of transitional justice, as well as research in forensic and clinical psychology. It finds a paltry empirical record that offers little support for claims of either salutary or harmful effects of post-conflict justice. Although there is little evidence that truth-telling in general dramatically harms individuals, the notion that formal truth-telling processes satisfy victims’ need for justice, ease their emotional and psychological suffering, and dampen their desire for vengeance, remains highly dubious.

How to Repair the Harm after Violent Conflict in Bosnia? Results of a Population-Based Survey

Debates about serious human rights violations and international crimes committed in the past usually start during times of political transition, that is when societies are moving away from a non-democratic regime and the new political elites are confronted with the fundamental question on how to address the heavy burden of their dark past. This question was posed in most countries of Latin America in the 1980s, in all countries of Central and Eastern Europe in the 1990s and in several countries in Africa and Asia during the last decade. The issue of ‘dealing with the past’ or ‘transitional justice’ is most often managed by elites, national and international, and the views and expectations of the local populations are rarely taken into account. Yet population-based research can yield interesting insights into strategies and mechanisms for dealing with the crimes of the past and for reconstructing the future. In this contribution we report on the findings of a population-based research in Bosnia in 2006 that dealt with several issues of post-conflict justice. The focus is on the issue of reparation for the harm inflicted, how it is perceived by the population in Bosnia, what forms it may take, and how to feed it into policy-making at the national and the international level.

Gender, sexual violence and justice in war-torn societies

Despite a growing awareness among scholars and policymakers of the role that gender plays in mobilising war crimes and human rights abuses and the need for attention to gender in the aftermath of violent conflicts, the international community has not yet paid sufficient attention to gender in the construction of mechanisms intended to promote justice in war-torn societies. Similarly, scholars have neglected gender as an explanatory concept in their analyses of efforts to promote ‘post-conflict justice’. In an effort to address this void, this paper examines the limitations of prevailing approaches to justice in war-torn societies due to their failure to adequately consider the role of gender norms as a constraint on participation in the dominant mechanisms for pursuing ‘post-conflict justice’. It also considers how mechanisms intended to promote justice in war-torn societies might be most appropriately constructed in an effort to bring justice to all victims of wartime violence.

Utopia and the doubters: truth, transition and the law

Truth commissions have an intuitive appeal in squaring the circle of peace and accountability post-conflict, but some claims for their benefits risk utopianism. Law provides both opportunities and pitfalls for post-conflict justice initiatives, including the operation of truth commissions. Rather than adopting a heavily legalised approach, derived from Public Inquiries, an ‘holistic legal model’, employing social science fact-finding methodologies to explore pattern of violations, and drawing appropriately on legal standards, may provide the best option for a possible Northern Ireland truth commission.

Empty Words or Real Achievement? The Impact of Security Council Resolution 1325 on Women in Armed Conflicts

On October 31, 2000, the Security Council of the United Nations (UN) adopted Resolution 1325 as the first comprehensive document on strengthening the role of women and girls in conflict and postconflict situations. The article reviews the resolution's history and examines its potential for the advancement of women. The characteristic advantage of Resolution 1325 is its central idea of the empowerment of women in conflict and postconflict settings. However, have the objectives of the resolution been adequately endorsed at the international level? Have they been sufficiently implemented at the national level? Or have the commitments of Resolution 1325 remained empty words without further impact? The article explores the case of Uganda to illustrate the effects of the resolution on women as peace-builders in a national context and discusses the advances in addressing gender issues in postconflict justice processes. It concludes that many of the commitments outlined in Resolution 1325 still remain to be implemented—at the level of the UN as well as in national contexts.

Some reflections on the legitimacy of international trial justice

This paper addresses a number of interrelated conceptual difficulties that impact adversely on the ability of international criminal trials to deliver outcomes perceived as legitimate by victims and communities in post-conflict states. It begins by exploring the extent to which those moral justifications for punishment espoused by international courts are instrumental in marginalizing the aspirations for justice of victims and victim communities, and suggests how a greater appreciation of the sociological context of punishing international crimes can contribute towards an improved understanding of normative practice. The paper then examines the relationship between perceptions of international crime and punishment, and the broader issue of whether international criminal law provides an appropriate normative structure for giving effect to those universal humanitarian values concerned with punishment in an increasingly pluralistic world. Finally, the paper considers how the theory and practice of punishing international crimes can more effectively satisfy both local and global aspirations for post-conflict justice through enhancing the transformative capacity of international criminal trials.

Rule of Law and Human Rights Protections through Criminal Law Reform: Model Codes for Post-conflict Criminal Justice

This article examines the inter-relationship between the rule of law, criminal law reform and international human rights norms and standards in post-conflict societies from a theoretical as well as a practical perspective. In several peace operations, both national and international actors have faced significant challenges in reforming the domestic criminal law framework. Reflecting upon these challenges, many practitioners have called for the creation of ‘law reform tools’. With the aim of providing such tools, the Model Codes for Post-conflict Criminal Justice Project has developed a set of model criminal laws. The model codes have been drafted in a manner that is fully compliant with international human rights norms and standards in the field of criminal proceedings. The article discusses how such model codes may meaningfully contribute to domestic criminal law reform efforts, not as a panacea but a start for enhanced human rights protection in post-conflict states.

Prosecuting war crimes: Trials and tribulations

During the course of the last decade or so, we have witnessed a growth in the business of international criminal justice, prompted by changes in the international system and a greater concern about violations of human rights occurring within the borders of a state. The establishment of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in May 1993 was the first step on a path that led to the establishment of a permanent International Criminal Court with the adoption of a statute in July 1998 and its coming into force four years later. Prosecuting war crimes was seen increasingly as an important element of the package of measures designed to bring about ‘post-conflict reconstruction’. There was a marked increase also in the number of cases on the basis of the exercise of universal jurisdiction by certain states. More recently, however, a degree of fatigue with international criminal justice was discernable. It was suggested that alternative mechanisms involving greater local involvement and different approaches such as truth commissions or some form of amnesty might be better suited to the lofty demands of post-conflict justice. The books discussed here all make a significant contribution to the growing body of literature examining ways of dealing with the commission of war crimes, crimes against humanity and genocide and the complex legal, political, ethical and practical issues involved.

Should Approaches to Post-conflict Justice and Reconciliation be Determined Globally, Nationally or Locally?

This article responds to the normative question of whether post-conflict justice and reconciliation should be determined at the global, national or local level through an analysis of the tripartite judicial framework that has emerged in Rwanda in the aftermath of the 1994 genocide. It evaluates the experience of the International Criminal Tribunal for Rwanda (ICTR), national courts and gacaca courts across two interdisciplinary theoretical debates: first, the anthropological and philosophical question of relativism versus universalism; second, the socio-legal question of retribution versus restoration. The article argues that these two theoretical debates, pervasive in the literature, represent false dichotomies and that, in the case of Rwanda, there has been a complex and dynamic relationship between approaches to justice adopted at each level. Although in practice political tensions and elite interests have created contradictions and undermined judicial credibility at every level, the experience points ...

Resolution of property disputes in Bosnia and Kosovo: The contribution to peacebuilding

This study reviews the international property-related interventions in post-conflict Bosnia and Kosovo, and explains the justifications for establishing international mass claims proceedings to restore or compensate for lost property rights as a consequence of conflict and discrimination. The institutions and processes are a milestone in the protection of the rights of refugees and internally displaced persons in post-conflict peacebuilding. These case studies demonstrate that property restitution has not been fully successful in its primary objective of re-establishing multiethnic societies by safeguarding housing and property rights. It has nevertheless fostered the rule of law and contributed to ethnic reconciliation by providing post-conflict justice and acknowledging past wrongs.

Human Rights Education: The Third Leg of Post-Conflict/Transitional Justice

Emerging out of the same foment of war and violence that led to the recognition of international human rights, post-conflict or transitional justice represents one of the most important political developments in efforts to advance human civilization to arise during the course of the twentieth century. As more and more countries undergo the trauma of civil war or revolutions against repressive regimes, they and the international community must confront the problems of transforming these situations of violent conflict into healthy, functional democratic states. The guiding principle behind post-conflict or transitional justice is that complying with the demands of justice is a necessary prerequisite to peace and stability. The two terms, post-conflict justice and transitional justice, while often used interchangeably to cover the same basic concerns with justice, reflect developmental changes within the field and slightly varying perspectives on its application. The former, growing out of the Nuremberg trials (though having roots as early as the Treaty of Versaille), initially focused on retributive justice through judicial mechanisms as a means of punishment and prevention arising out of concluded conflicts. Transitional justice emerged in the 1980s in situations where the conflict had not yet been resolved. Instead of focusing upon individual perpetrators, it shifted attention to broader social issues relating to the need for reconciliation and social reconstruction. It supported the development of truth commissions and victim reparations, issues of restorative justice. Along with the possible inclusion of trials, transitional justice embodies those practices that take place after or facilitate the transition from one political regime to another. Contemporary approaches to transitional justice increasingly view the application of judicial mechanisms, truth commissions, and victims' compensation as elements within the total arsenal of transitional justice, each to be applied as appropriate to the specific situation arising in the country in question. Thus, while all three approaches may be appropriate, one or the other may be accorded primary attention, while the others play roles of lesser public import. These approaches, however, fail to appreciate that, even according to their own justifications for action, they remain inadequate to the task assigned. They are necessary but incomplete. In order to achieve the effects desired, transition from a dysfunctional society to a healthy democracy, they must be combined with an effective program of human rights education. This applies whether one looks at the issue through the lens of retributive justice (identified principally with post-conflict judicial mechanism approaches) or restorative justice (associated with transitional justice mechanisms).

The Road from Dayton to Brussels? The International Criminal Tribunal for the Former Yugoslavia and the Politics of War Crimes in Bosnia

The tenth anniversary of the massacre of 7–8,000 Bosnian Muslim men and boys at Srebrenica in July 1995 set in stark relief the continuing salience of war crimes in the political life of Bosnia and Herzegovina. With the country now firmly on a path ‘from Dayton to Brussels’, dealing with the war crimes legacy is critical to its future development. Cooperation with the International Criminal Tribunal for the Former Yugoslavia (ICTY) is a non-negotiable condition for further progress toward membership of the European Union and NATO's Partnership for Peace, while in the long-term, dealing with the legacy of war crimes is crucial to establishing lasting peace in Bosnia and in the region. This article examines the potential contribution of the ICTY to the restoration of peace in Bosnia in the context of debates about the role of post-conflict justice in societies in transition from war to peace and in the context of the international community's use of the war crimes issues as a political bargaining tool. It will be argued that the two are inextricably linked as short-term pragmatic advantages brought by cooperation work in tandem with longer-term goals of peace and reconciliation.

Sierra Leone: African Solutions to African Problems?

This article analyzes to what extent international, regional and national efforts to solve the civil war in Sierra Leone as well as to bring along post-conflict justice have been competing with, or supportive of each other. It argues that the legal frameworks of these missions and institutions need to be more mindful of the efforts by other missions and institutions pursuing similar ends in order to maximize their effectiveness and not to defeat each other.