Restoring Justice after Large-scale Violent Conflicts

Ivo Aertsen, Jana Arsovska, Holger-C Rohne, Marta Valiñas, Kris Vanspauwen

• Publisher: Routledge
• Year: 2013
• Print ISBN: 9781843923022
• eBook ISBN: 9781134006304
• Edition: 1
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

This book provides a comparative analysis of the potential of restorative justice approaches to dealing with mass victimization in the context of large-scale violent conflicts focusing on case studies from Kosovo, Israel-Palestine and Congo, incorporating contributions from leading authorities in these areas. One of the main objectives of the book is to examine if, how and to what extent restorative justice is applicable in various different cultural, social and historical contexts, and what common themes can be identified within the different regions under analysis. The book will also provide a critical analysis of the UN Basic Principles on the use of restorative justice programmes in criminal matters as applied to the context of large scale violence.

Part 1

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Introduction

Chapter 1

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Challenging restorative justice – state-based conflict, mass victimisation and the changing nature of warfare

Holger-C. Rohne, Jana Arsovska and Ivo Aertsen¹

There is no lasting hope in violence, only temporary relief from hopelessness.

Kingman Brewster Jr

Violence and conflict have always been part of human experience in one form or another and their destructive impact can be observed all over the world. However, some nineteenth-century utopian social philosophers, for example, harboured the hope that a future without war, violence and crime might be realised. Unfortunately this hope did not come about in the twentieth century (Friedrichs 1998a). The twentieth century has often been depicted as a ‘post-imperial epoch’, because it witnessed the collapse of the Habsburg, Ottoman, Hohenzollern, Ch'ing, British and Russian Empires. However, these splinterings have not been the end of the matter since the nationalistic spirit moved on further to divide countries (Spencer 1998: 7; Bianchini 1996: 188). Even so, many academics have argued that the Cold War period – the late 1940s to the late 1980s – often referred to as the ‘Long Peace’ was exceptionally stable (Human Security Report 2005: 22; Gaddis 1989). Although during this time the world indeed experienced a long period of unremitting peace between the traditional ‘great powers’, this trend did not mirror reality in the developing world. From the beginning of the Cold War to the early 1990s, the number of armed conflicts in developing countries rose dramatically (Human Security Report 2005: 22; Cranna 1994: xvii; Friedrichs 1998a).

Thus, seen globally and over a long period of time, we live in an increasingly violent and precarious world (see Table 1.1). Apparently the century that has just ended was the most violent that humanity has ever experienced. It has been characterised by extraordinarily high levels of war, violence and related crimes (Friedrichs 1998a). Although one should take statistical data with the necessary caution, numbers show that nearly three times as many people were killed in conflict in the twentieth century than in the previous four centuries together (Human Development Report 2005: 153). Strikingly enough, states have been complicit in a disproportionate share of such destructive activity (Friedrichs 1998a; Proall 1898; Horowitz 1989; Barak 1990; Kauzlarich et al. 1992; Cohen 1993, 1996).

Hence, it is the challenging task of the authors of this book to acknowledge the enormous costs that large-scale state-based conflicts² have on human lives and development and to search for constructive ways to deal with them. Restorative justice is a possible way – one that has attracted a great deal of scholarly attention in a very short period of time – to deal with conventional crimes (Aertsen et al. 2006; Daly 2004: 500); however, the potentials for this justice practice have not been explored in the context of large-scale violence and mass victimisation. Therefore, after presenting in this first chapter the main aims and methods of this book, the authors aim to investigate restorative justice possibilities in several (post-)conflict regions, by drawing on various local informal and formal practices for dealing with violent conflicts. In short, the book aims to examine if, how and to which extent restorative justice is applicable to large-scale violent conflicts in different cultural, social, political and historical contexts

Table 1.1 An overview of (armed) conflict-related deaths in the last five centuries

Period	Conflict-related deaths (millions)	World population, mid-century (millions)	Conflict-related deaths as share of world population (%)
Sixteenth century	1.6	493.3	0.32
Seventeenth century	6.1	579.1	1.05
Eighteenth century	7.0	757.4	0.92
Nineteenth century	19.4	1, 172.9	1.65
Twentieth century	109.7	2, 519.5	4.35

Sources: Human Development Report (2005: 153 table 5.1).

and whether commonalities can be identified within the different regions under analysis.

State-based crime: definitions and other challenges

Despite the fact that far more violence has been carried out in the name of states – and far more property has been destroyed – than can be ascribed to conventional offenders, state crime, as well as state-based crime,³ is not yet a major focus of criminological investigation. According to David O. Friedrichs (1998a), the call for more criminological attention particularly to state crime is recent (Harding 1998; Chambliss 1989; Cohen 1998), although not entirely new (Proall 1998). Several criminologists have published books on political crime (Roebuck and Weeber, 1978; Ingraham 1979; Tunnell 1993; Hagan 1997; Friedrichs 1998a, 1998b) and attempts have also been made by authors from other disciplines to understand state wrongdoings (Comfort 1950; Wolfe 1973; Becker and Murray 1971; Douglas and Johnson; 1977; Macfarlane 1974). If the potential harm of state(-based) crime overshadows other forms of crime, then the challenge to criminologists should be apparent. This is one of the reasons why this book looks at the potentials of applying restorative justice practice – which, besides being part of other scientific disciplines, is also a criminological topic – to state-based crimes.

Nevertheless, it is frequently accepted that the conceptual and methodological issues in the area of state-based crimes are very daunting (Friedrichs 1998a). This links closely to the nature of the topic itself which is highly complex and sensitive and which opens a lot of definitional dilemmas. The problems of bias, establishing ‘truth’, double standards and ‘political power’ are particularly relevant in the ideological realm of state-based crimes. It is often challenging if not impossible to determine whether a state acts as aggressor or justifiably tries to defend its sovereignty and citizens against opposing military or paramilitary forces. Concepts such as state crime, political crime, genocide, politicide, terror, rebel actions, human rights violations and ‘legitimate’ military, diplomatic and domestic initiatives of sovereign states are intertwined in very complex ways, which is an obstacle for the methodical study of these sensitive phenomena. Interestingly, for example, international organisations collect statistics from governments on various issues; however, there is no official data on armed conflicts or human rights abuses (Human Security Report 2005: 19). Also, the challenges involved in effectively preventing or responding to state crime are enormous and they initially link to the difficulty of exposing such crimes in the first place; hence, many have argued that the immediate exposure of state crimes is very improbable (Markovits and Silverstein 1988; Friedrichs 1998a). Moreover, concepts such as ‘terrorism’ and ‘terrorist’ are also often not terms of scientific classification. They are rather imprecise and emotive; therefore, they are a source for many injustices, double standards and manipulations of present systems and regimes (O'Brien 1983). ‘One man's terrorist is another man's freedom fighter’ is the aphorism that strikingly illustrates this definitional problem. Having acknowledged obvious limitations, we do not intend to enter greatly into various ongoing definitional debates, but merely to explore the relevance of restorative justice principles in the context of state-based crimes using well-accepted pre-existing definitions.

Conflict trends and consequences in the bloodiest century

As noted above towards the end of the twentieth century there had been a drastic increase in state-based conflicts which in fact led to the occurrence of various state-based crimes. But what does this mean in terms of numbers and human development costs? More than fifteen years after the end of the Cold War there is still a general perception that the world is becoming more dangerous. According to public opinion polls from rich countries, this perception is linked to fears of terrorist threats as anti-state activities. However, although very significant, such attacks lead to a distorted perception of the distribution of human insecurity. For example, since 1998 ‘terrorism’ has been responsible for approximately 20,000 fatalities globally (Human Development Report 2005: 151; UNDP 1990: 61). At the same time humanitarian tragedies such as the state-based conflicts in the Democratic Republic of the Congo (DRC) and the Darfur region of Sudan glimmer only sporadically into world news reports although they are claiming victims on a scale that dwarfs the threats facing people in industrialised countries (Human Development Report 2005: 151). In order to clarify the picture and to assess the role of states we need to examine the relation between human insecurity and conflict trends which can be interpreted in both a positive and a negative light.

Surprisingly enough, the last decade of the twentieth century witnessed a reduction of conflicts. In the early 1990s, the number of conflicts worldwide rose considerably, several wars fared in the former Soviet Union. A few years after the collapse of the Soviet Union there were more regional conflicts and civil wars than at any other time this past century (Cranna 1994). However, statistics show that from a high of 51 state-based conflicts in 1991–92 there were only 29 ongoing conflicts in 2003 (Human Development Report 2005: 153; Human Security Report 2005: 22; Kiza et al. 2006: 28). Although the number of conflicts in general has declined, various studies point out that the wars of the last two decades have exacted an extremely large toll in human lives (Kiza et al. 2006: 40).

Genocide, which the UN Genocide Convention defines as ‘acts committed with intent to destroy, in whole or part, a national, ethnical, racial or religious group’ and other mass murders⁴ have killed enormous numbers of people in the twentieth century (Churchill 1986; Harrf and Gurr 1996; Breton and Wintrobe 1986; Friedrichs 1998a; Charny 1986; Smith 1995; Rummel 1995).⁵ The Rwandan genocide in 1994 killed almost one million people and the civil war in the DRC killed approximately seven per cent of the population which amounts to nearly four million deaths. In Sudan a two-decade long civil war took more than two million lives and displaced six million people. The 1990s also saw ethnic cleansing in the heart of Europe as violent civil conflicts swept the Balkans. The ongoing bloody conflict in the Middle East is another tragedy of enormous significance. In general, it could be observed that the geographical pattern of conflict has changed over time, with a shift in security risks towards the poorest countries and also towards civilian targets (Human Development Report 2005: 153–4).

With regard to the burden of warfare for the civilian population, it could be observed that the latter in fact has become the focus of the armed struggle: whereas during the First World War the ratio between soldiers killed and civilians was nine to one, it was reversed at the end of the twentieth century with nine civilian fatalities to one killed combatant (Rohne 2006a: 80; Gutmann and Rieff 1999: 10). Hence, large-scale violent conflicts and mass victimisation have indeed become a gruesome reality with devastating consequences for millions of people, including children,⁶ living in poor and troublesome regions (Singer 2005). Moreover, each major conflict from the last 60 years, such as Algeria, Korea, Vietnam, Congo and Sudan, has killed between 400,000 and two million people, amounting to more than 45 million deaths. About 78 per cent of them are identifed as civilians and only 15 per cent as combatants, although these numbers are difficult to verify. According to the World Health Organisation (WHO), the estimated number of war-related deaths in the year 2000 was 310,000 of which almost 20 per cent were caused by war-related violence (Krug et al. 2002: 9–10; Human Security Report 2005: 30).

It is estimated that in 1950 each conflict killed 38,000 people on average (battle-deaths per conflict), but by 2002, this number dropped to 600 (Human Security Report 2005: 31; Lacina and Gleditsch 2005; see also Table 1.2⁷). These numbers have led many people to believe that wars and conflicts in the world are rapidly declining. In 2003, however, the war in Iraq and the genocidal conflict in Sudan – among the most striking examples – have again marked an increase in war victims. Around 27,000 Iraqis and Americans have died in Iraq alone as a result of continued insurgency, although the conventional war ended in 2003 (Human Security Report 2005).

In addition to the war death estimates, about 25 million people are currently internally displaced because of conflict or human rights violations and 18 million have become refugees abroad (Cranna 1994). Nine of the ten countries ranked at the bottom in the human development index (HDI) have experienced violent conflict at some point since 1990 (Human Development Report 2005: 15). In the period 1990–2003 low...

Table of contents

• Cover
• Half Title
• Full Title
• Copyright
• Contents
• Acknowledgements
• List of Abbreviations
• Notes on Contributors
• Explanation of the Cost Organisation
• PART 1 Introduction
• PART 2 Case studies
• SECTION 1 The Kosovo conflict
• SECTION 2 The Israeli–Palestinian conflict
• SECTION 3 The conflict in the Democratic Republic of Congo
• PART 4 Conclusion
• Index