Post-conflict Justice Research Articles

Writing the Rape in Post-Conflict Societies of the 1990s: John M. Coetzee and Slavenka Drakulić

ABSTRACTThe International Criminal Tribunal for the former Yugoslavia (ICTY) and the Truth and Reconciliation Commission (TRC), beyond their undeniable differences in dealing with post-conflict justice, were influenced by the same “rape as a weapon of war” paradigm in their approach to the abuses of the women’s rights. This article examines literary explorations of this paradigm, i.e., how its interpretative patterns have been appropriated, adjusted, and reshaped in As if I Am Not There (1999) by Slavenka Drakulić and in Disgrace (1999) by John M. Coetzee. It points out how literature in post-conflict societies of the 1990s has been used successfully to problematize the victim status in war and conflict situations and to give voice to the silenced aspects of women’s rape stories, as well as to signal the limitations of the main legal and commission discourses that rely on a too rigid conception of sexual violence against women.

MEA CULPA, SUA CULPA, TUA MAXIMA CULPA: COLLECTIVE RESPONSIBILITY AND LEGAL JUDGMENT

Ascertaining litigation for crimes reaching the dimensions of crimes against humanity remains an elusive quest. This is despite the precedents set by post-WWII trials in international criminal law and post-conflict justice. Ranging from the contribution of Nuremberg to the substantive development of international criminal law, to the philosophical evaluation of legalism in post-conflict systems of justice, the persistent significance of the Nuremberg legacy is indeed worthy of attention. In this article, the Nuremberg legacy is reexamined from the perspective of collective responsibility for mass crimes. The Nuremberg Judgment is counted as the benchmark in international law for the definition and adjudication of individual accountability for war crimes and crimes against humanity and redefined the nature of legal responsibility. However, concurring with Karl Jaspers, I argue that for such crimes, the judgment cannot emanate from the courtroom alone. In this vein, the paper revisits theories of collective responsibility and culpability. Due to the extensive the nature of harm involved in historic injustices, I posit that individual responsibility argument waged against historic justice claims carries forward a great deficit. Historic injustices and the harms they generate are best understood as collective harms. The response to such harms must have a collective component as well, and the remedies offered are only meaningful in a social and political context. One common form of such harm, constitutive harm, significantly differs from the aggregative accounts of harm generally used by standard individual criminal litigation processes. It is the type of harm that people suffer as members of historically wronged groups and communities and often in the hands of the state that was poised to protect them. Therefore, historic injustice cases require a different account of responsibility, one that cannot be harnessed solely based on individual responsibility argumentation within the context of domestic or international criminal justice jurisprudence. The article urges that we make room for considerations pertaining to collective responsibility as a moral obligation, thus providing a context within which legal judgment for egregious crimes could be firmly situated and historicized.

Time for Change: Aid, NGOs, and Transitional Justice in Bosnia-Herzegovina

This article examines Scandinavian donor practices in Bosnia-Herzegovina (BiH) with regards to post-conflict justice activities. BiH has been a laboratory of reconstruction, peace-building and transitional justice processes since the end of the war in 1995. While issues related to rebuilding and developing war-torn societies and their economies have attracted extensive scholarly attention, the question of international aid practices in transitional justice contexts remains widely understudied. Although the influence of nongovernmental organizations (NGOs) in reconciliatory transitional justice work has been growing, the relationship between international donors and local NGOs involved in these projects remains very limited. The objective of this study is to explore why this is the case. This research draws on Scandinavian aid practices in BiH – particularly the cases of Norway and Sweden – as Scandinavian countries are considered norm entrepreneurs not only in world politics but also in the field of development. This research relies on over three-dozen in depth interviews (with government representatives, experts, and activists), donor evaluation reports, and media documents. The article discusses the factors contributing to the reluctance of Scandinavian donors to provide financial assistance to local NGOs engaging in restorative justice processes in BiH.

Does and Should International Law Prohibit the Prosecution of Children for War Crimes?

© The Author, 2017. Published by Oxford University Press on behalf of EJIL Ltd. This article investigates whether international law prohibits the prosecution of children for war crimes and, if it does not, whether it should do so. In particular, the interplay between restorative and retributive post-conflict justice mechanisms, on the one hand, and juvenile rehabilitative justice mechanisms, on the other, is discussed in detail. The article suggests that in certain, narrow, circumstances children having committed war crimes should be prosecuted.

Choices of Justice: Effects of Civil War Termination on Postconflict Justice Mechanisms Implemented by the State

Choices of Justice: Effects of Civil War Termination on Postconflict Justice Mechanisms Implemented by the State

Sexual Violence During War and Peace: Gender, Power, and Post Conflict Justice: Gender, Power, and Post-Conflict Justice in Peru by Jelke Boesten

Sexual Violence During War and Peace: Gender, Power, and Post Conflict Justice: Gender, Power, and Post-Conflict Justice in Peru by Jelke Boesten

Seeking Justice in a Divided Region: Text Analysis of Regional Civil Society Deliberations in the Balkans

Contemporary conflicts are seldom contained within nation states. The cross-border nature of violence has prompted scholars to call for a regional approach to transitional justice (TJ). This article furthers our understanding of the regional dimension of postconflict justice by addressing the puzzle of whether discourse in regional-level debates is different from that in national- or local-level debates. It applies a communicative deliberation perspective by focusing on the patterns of talk during civil society deliberations on postconflict justice. Empirical evidence is based on the unique regional civil-society-led process in the Balkans that aims to establish a regional fact-finding commission, known by its acronym RECOM. Critiquing state-centred approaches to the study of TJ, this study conducts mixed-method research and applies text analytic techniques appropriate for the investigation of a large volume of regional-level data. Quantitative text analysis is carried out by applying a dictionary method to over half-a-million words of RECOM’s textual data. Findings suggest that regional-level debates have a higher level of restorative justice discourse than nonregional debates. Qualitative analysis of discursive frames explores this finding further, and shows that deliberators’ endorsement of the regional approach to TJ rests on a set of historical, present and future considerations, underpinned by a sense of regional consciousness.

The Politics of Prosecution of International Crimes in Sri Lanka

The international community failed to convince the Sri Lankan government and the Liberation Tigers of Tamil Eelam (LTTE) to end their armed conflict peacefully. The agenda has now shifted towards investigating international crimes committed in the last phase of the civil war instead. The former and current governments of Sri Lanka have responded ambivalently to the calls of the international community for prosecution of perpetrators before hybrid or national courts and they have skilfully tapped into the grievances of various international, regional and domestic constituencies. Post-conflict justice has different meanings when viewed against a background of counterinsurgency discourse, reconciliation, institutional reform and economic development. As a result, the conflicting priorities between the often self-serving agendas of the different actors have rendered the prospects for prosecution of international crimes in Sri Lanka remote.

Complementarity Conundrums

How can the temporal realities of transitional justice be reconciled with the requirement of finality in International Criminal Court (ICC) admissibility proceedings? The ICC clock tends to run too fast for states emerging from mass atrocities. The admissibility challenges of Libya in the cases of Saif Al-Islam Gaddafi and Abdullah Al-Senussi illustrate the realities of reconciling immediate global justice with the imperatives of local justice following mass atrocity. Striking the right balance between time and justice is at the root of an effective system of complementarity. The Libya cases provide an important precedent because it presents a post-conflict situation with actual national proceedings and a genuine willingness to prosecute. As such, it addresses the extent to which the ICC should accommodate the time and resource constraints of national judicial systems in transitional situations. Instead of a rush to judgment, making the complementarity principle a practical reality requires meaningful engagement with the messy realities of post-conflict justice.

Justice for Darfur: The icc and Domestic Justice Initiatives Eleven Years after the un Security Council Referral

This article provides a comprehensive overview of justice initiatives triggered by the International Criminal Court (icc) intervention in Sudan, assessing them in the light of the principle of complementarity against international fair trial standards. Particular attention is paid to the role that autochthonous justice initiatives might play to address the violence experienced in Darfur. The aim of this article hence includes providing an overview of the post-conflict justice scenario surrounding Sudan; discussing the rationale behind the adoption of the mechanisms established within this framework; and assessing the impact of the icc on the Sudanese justice system while simultaneously outlining possible strategies for the future.

Governing Asymmetries on the Battlefield: Towards a Relational Normativity

Governing contemporary warfare is deeply rooted in the shift since the end of the Cold War towards humanitarianism, whose practice has been accompanied by the parallel evolution of international laws that regulate the use of force (jus ad bellum), the conduct of hostilities (jus in bello), and post-conflict justice (jus post bellum). Yet, new unequal obligations on behalf of the territorial state faced with proxy warfare internally and foreign intervention externally have challenged the core role of such governance, and led to further erosion of the normativity of those rules in the theatres of conflict. As a result, this rule-based approach to government falls short of restoring the actual relationships and human ties between the warring parties. The undesired outcome of such humanitarian ambitions can be mediated through relational governance, as espoused by Yaqing Qin, one of China’s leading international relations scholars, which is founded in a Chinese epistemological and relation-focused framework. Its tools and methods stress the importance of trust and harmonization of relationships, in order for the international laws governing warfare to regain their normativity based on such relationality; without a fertile soil, evolving norms may not gain root and compliance with those norms cannot be fostered in the first place.

Jelke Boesten , Sexual Violence during War and Peace: Gender, Power, and Post-Conflict Justice in Peru (New York: Palgrave Macmillan and United States Institute of Peace, 2014), pp. xi + 231, £66.00, hb.

Jelke Boesten , Sexual Violence during War and Peace: Gender, Power, and Post-Conflict Justice in Peru (New York: Palgrave Macmillan and United States Institute of Peace, 2014), pp. xi + 231, £66.00, hb.

Disciplinary Divides in Post-Conflict Justice and Peace: Tracking If and How we Share Ideas

ABSTRACTThe study of post-conflict justice and peace incorporates ideas from many disciplines and on a range of topics including justice, reconciliation, democratization, and peace. While diversity is valuable, it can also lead to confusion in theory and practice and so requires close evaluation of how diverse ideas interact, and to what end. This paper begins the systematic examination of such interactions by using new bibliometric software to track citations between two particularly influential literatures contributing to post-conflict theory: the legal and the psychosocial. The paper describes how these traditions interact and the impact on the post-conflict literature as a whole.

‘The return of things as they were’: New humanitarianism, restitutive desire and the politics of unrectifiable loss

The current proliferation of restitutive claims in response to expropriation in armed conflicts occurs at the interstices of humanitarianism and transitional justice. Restitution indicates the expansion of the humanitarian mandate from providing immediate relief to those who have suffered loss, to engaging in remedial, redressive and restorative practices. That intersection between the humanitarian goals and post-conflict justice is one of the signs of ‘new’ forms and ethos of humanitarianism. This article offers a critical reading of the ‘restitutive desire’ underpinning the humanitarian restitutive politics, which it relates to political fantasies of reversibility and undoing. It locates the genealogy of restitution in Emile Durkheim’s work on the division of labour, individualization and the distinction between repressive and restitutive law. It argues that in the Durkheimian socio-legal tradition restitution figures as a return of ‘matters to their former status’ and of ‘disturbed relationships to their normal form’. It then turns to Sigmund Freud’s essay on Daniel Schreber, which defines restitution not as procedure of undoing, but as a reparative practice that nevertheless affirms the subject’s ‘catastrophic loss of the world’. The Freudian perspective uncouples restitution and undoing and asks about the possibility of restitutive politics haunted by unrectifiable loss.

Can We Forgive Them? Searching for Justice for the Victims of Halabja

In 1987, Saddam Hussein launched, as a part of what was known as the Anfal Operation, which was a brutal military operation on the Kurdish population in northern Iraq, killing hundreds of thousands of civilians. The key actors responsible for the Anfal Operation were tried and executed by the Iraqi High Tribunal in what came to be known as the Anfal Trial. Nonetheless, questions remain as to whether justice was served, specifically in relation to the Kurdish population in the city of Halabja which in 1988 endured a horrific chemical attack that left countless dead. The purpose of this essay is two-fold. Firstly, place the Anfal Operation in the context of postconflict justice, showing the role played by retributive justice and how it failed to provide justice for the people of Halabja. This view stems from a key premise of this contribution, which is that the Anfal and Dujail trials were not really designed to provide justice for Iraq’s Kurdish population. This resulted in the continued alienation of the Kurdish Iraqi population. Secondly, this paper argues that in the reconciliatory justice approach that involves communitybased reparation, which is more attuned to transformative justice is bettered suited to address Kurdish dissatisfaction with the wat the Iraqi States has treated them. A transformative justice approach would not only ensure not only that such crimes are unlikely to happen again but that the victims of Halabja will not be forgotten.

Beyond Peace vs. Justice: Assessing Transitional Justice’s Impact on Enduring Peace using Qualitative Comparative Analysis

Previous studies of the effects of transitional justice measures on post-conflict societies, specifically the longevity of emerging peace, have reached different conclusions, owing in part to whether they are large-n or small-n studies. We propose an alternative methodological approach, Qualitative Comparative Analysis (QCA), to address the controversy. QCA allows researchers to harness the qualitative depth of case studies, yet also facilitates broad cross-national comparison. Using the Post-Conflict Justice dataset, we show how QCA reveals several pathways societies can take to enduring peace. These depend on characteristics of the preceding conflict, differences in the post-conflict conditions, and the transitional justice measures implemented. This complexity- orientated approach shows that restorative and retributive justice measures, as well as amnesties, can have positive effects on post- conflict peace, although these effects are different depending on the conflict situations and the varying context conditions.

Amnesty and Pardon in Islamic Law With Special Reference to Post-Conflict Justice

The subject before us has acquired renewed significance in the aftermath of the September 2001 terrorist attacks, the tumult and violence that has been on the increase ever since, but also what followed the advent of the Arab Spring in many Muslim countries. Conflicts that engulf countries and communities rarely, if ever, end by clean endings. They leave behind a host of issues, including the urge to take revenge by the aggrieved parties - hence a vicious circle of violence follows. Post-conflict justice requires careful management, such that measure - for - measure justice may not be the right option in one’s quest to restore peace. The spirit of peace and willingness to give and take, admission of truth and forgiveness may be among the more effective means of healing and moving forward. What role, if any, is there in the midst of all this for Islam’s guidelines on repentance, amnesty and forgiveness is the main subject I address in the following pages. Amnesty, pardon and forgiveness are the means, in Islamic theology and law, as also in most other world traditions, of relieving someone from punishment, blame, civil liability or religious obligation. The same result is often achievable by recourse to certain other methods such as reconciliation, arbitration, and judicial order. This article focuses on an exposition of Islamic law provisions on amnesty (‘afwa). The fiqh positions explored here derive, for the most part, from the Qur’an (normative teaching), or Sunnah of the Prophet Muhammad, pbuh, and general consensus (ijma’) of scholars across the generations. Yet instances are found where fiqhi interpretations of the relevant scripture are reminiscent of historical settings and conditions of their time, which may, upon reflection, warrant further scrutiny and interpretation more in tune with the contemporary conditions of Muslims.

Amnesty and Pardon in Islamic Law with Special Reference to Post-Conflict Justice

The subject before us has acquired renewed significance in the aftermath of the September 2001 terrorist attacks, the tumult and violence that has been on the increase ever since, but also what followed the advent of the Arab Spring in many Muslim countries. Conflicts that engulf countries and communities rarely, if ever, end by clean endings. They leave behind a host of issues, including the urge to take revenge by the aggrieved parties − hence a vicious circle of violence follows. Post-conflict justice requires careful management, such that measure- for -measure justice may not be the right option in one’s quest to restore peace. The spirit of peace and willingness to give and take, admission of truth and forgiveness may be among the more effective means of healing and moving forward. What role, if any, is there in the midst of all this for Islam’s guidelines on repentance, amnesty and forgiveness is the main subject I address in the following pages. Amnesty, pardon and forgiveness are the means, in Islamic theology and law, as also in most other world traditions, of relieving someone from punishment, blame, civil liability or religious obligation. The same result is often achievable by recourse to certain other methods such as reconciliation, arbitration, and judicial order. This article focuses on an exposition of Islamic law provisions on amnesty (‘afwa). The fiqh positions explored here derive, for the most part, from the Qur’an (normative teaching), or Sunnah of the Prophet Muhammad, pbuh, and general consensus (ijma’) of scholars across the generations. Yet instances are found where fiqhi interpretations of the relevant scripture are reminiscent of historical settings and conditions of their time, which may, upon reflection, warrant further scrutiny and interpretation more in tune with the contemporary conditions of Muslims.

Mapping the Justice System and Legal Framework in a Conflict-Affected Country

It is vital that a rule of law practitioner providing assistance in a conflict-affected country first be familiar with the justice system in that country and the laws in operation. This can be an immensely challenging task, given the complexity of such systems and the fact that the rule of law practitioner may be working in a country with a different legal tradition to the one he or she was trained in. This guide provides rule of law practitioners with an overview of the range of potential justice systems, justice organizations and actors and laws that they may encounter when attempting to understand the post-conflict justice system and legal framework. Section 1 of this guide focuses on the state justice system and its various institutions and actors. Section 2 emphasizes the need to look at customary justice systems. This includes religious systems of justice, rebel/militia justice systems that formed during or after the conflict, as well as other actors who are mediating, arbitrating or adjudicating disputes. Section 3 discusses a range of potential other justice actors and institutions that may be important to include in a map of the justice system. Finally, Section 4 examines the legislative framework or the range of different laws that a practitioner may find in a post-conflict context.

International Criminal Courts in Action: The ICTR's Effect on Death Penalty and Reconciliation in Rwanda

This article focuses on a major reform encouraged by the International Criminal Tribunal for Rwanda (ICTR) – the abolition of the death penalty in Rwanda. For a decade prior to this reform, Rwandan courts have been imposing the death penalty in genocide cases. Using a qualitative empirical research method, still uncommon in international legal studies, the article shows how the ICTR’s requirements influenced the abolition, and then considers the impact of the abolition on national reconciliation in Rwanda. The findings suggest that the abolition has contributed to reconciliation, including through re-humanizing perpetrators and their relatives, improving survivors’ perception of society, and inspiring both survivors and perpetrators to envision a shared future. This is quite remarkable considering that, during the debates on the ICTR’s establishment, Rwanda insisted that sentencing to death genocide perpetrators was necessary for post-conflict justice and reconciliation. The article thus sheds a new light on the relationship between international tribunals and national reconciliation. In particular, it suggests that international tribunals can advance national reconciliation (and thus attain one of their explicit goals) through encouraging domestic legal developments such as death penalty reforms. Moreover, by raising awareness to the abolition’s positive effects on interethnic relations in Rwanda, the article could inform debates about the future of capital punishment in other death penalty countries.