Transitional Justice in Peacebuilding

Actor-Contingent and Malleable Justice

Djeyhoun Ostowar

• Publisher: Routledge
• Year: 2020
• Topic: Politics & International Relations
• eBook ISBN:
  9781000261523
• Subtopic: Military & Maritime History
• Index: Politics & International Relations

This book explores the role of actors in determining transitional justice in peacebuilding contexts.

In recent decades, transitional justice mechanisms and processes have been introduced to a variety of settings, becoming widely regarded as essential elements in the 'peacebuilding toolbox'. While it has increasingly been suggested that transitional justice is imposed by neo-imperial actors with little regard for the needs and cultures of local populations, evidence suggests that dismissing these policies as neo-imperial or neo-liberal impositions would result in grossly overlooking their dynamics, which involve a whole range of relevant actors operating at multiple levels. This book interrogates this theme through empirical analysis of three sites of peacebuilding that have seen extensive international involvement: Kosovo, East Timor and Afghanistan. It proposes a novel framework for analysing and approaching transitional justice in peacebuilding that disaggregates three broad sets of actors operating at different levels in relevant processes: external actors (international and regional levels), transitional justice promoters (local, national, international and transnational levels), and transitional regimes (national and local levels). The book argues that transitional justice in peacebuilding must be conceived of as actor-contingent and malleable due to the significance of agency and (inter)actions of key categories of actors throughout peacebuilding transition.

This book will be of interest to students and practitioners of transitional justice, peacebuilding, law, and International Relations.

1 Introduction: Liberal Peace and Justice?

In 2004, the United Nations Secretary-General (UNSG) Kofi Annan unequivocally asserted that justice and peace are not just interconnected, but that they can function in mutually supportive ways. Addressing an oft-articulated concern about their incompatibility, he claimed in his report – which constituted a watershed moment in the debate on peace and justice – that ‘[j]ustice and peace are not contradictory forces. Rather, when properly pursued, they promote and sustain one another’.¹ This stance on peace and justice resonated with the emerging discourse at that time. Over the years, a level of policy and scholarly consensus had been taking root, maintaining that peace and justice are not mutually exclusive. The debate markedly shifted from a conflict between justice-advocates and peace-supporters to a conversation about the possibilities and challenges of particular justice-seeking measures. In 2009, speaking at an event marking the sixtieth anniversary of the Geneva Conventions, Annan’s successor, UNSG Ban Ki-Moon, even asserted that ‘the debate is no longer between peace and justice, but between peace and what kind of justice’. He hailed this move as a ‘conceptual breakthrough’.² Within a decade, during the high-level event celebrating the seventieth anniversary of the Universal Declaration of Human Rights in 2018, the new UNSG, Antonio Guterres, had to acknowledge that ‘the human rights agenda is losing ground and authoritarianism is on the rise’.³ A decline of rights agenda and an anti-liberal turn are likely to have consequences for transitional justice because, by and large, the transitional justice agenda depends upon the international human rights norms. The general discourse on the relationship of justice and peace, and by extension transitional justice⁴ and peacebuilding,⁵ has shifted from a tendency to emphasize the mutual tension between peace and justice to an embracing of their interdependence, though this has recently subsided back into decreased enthusiasm for human rights, together with a certain decline of confidence in, and even a dismissal of, related practices such as transitional justice.

Conceptual advances towards connecting peace and justice initially built upon, and went hand in hand with, a real-life linking of peace and justice in the practices of peacebuilding and transitional justice. In the 1990s, the image of peace and justice as ‘mutually reinforcing’ was vividly epitomized by the establishment of the International Criminal Court (ICC) and ad hoc international criminal tribunals (ICTs), which were endowed with a responsibility to contribute to peace.⁶ The ad hoc tribunals for both the former Yugoslavia and Rwanda were established to contribute ‘to the restoration and maintenance of peace’.⁷ This is also true for the ICC, whose mandate refers to ‘crimes [that] threaten the peace, security and well-being of the world’, and explicitly tasks the ICC to contribute to the maintenance of international peace and security.⁸ In fact, the ICC and ICTs are far from the only products of that development. First of all, in several countries the turn towards accountability assumed the form of ‘hybrid’ courts, which sought to combine the national and international levels, and tended to comprise national and international judges, prosecutors, jurisdictions and the application of different laws.⁹ In certain peacebuilding contexts, transitional justice transcended the sole pursuit of legal accountability, through a focus on truth-seeking (in addition to accountability). Truth-seeking tended to be pursued in the form of a truth commission, an inquiry or a documentation effort, with the assumption that such efforts can contribute to preventing conflict and avoiding conflict relapse.¹⁰ Finally, other mechanisms associated with ‘transitional justice’, such as reparations and vetting (often also referred to as lustration),¹¹ were also used in post-conflict peacebuilding situations. Vetting and reparations were conceived of as important elements in dealing with the past and for building peace.¹² The invocation of all these measures hinged on the assumption that justice, in its varied forms, contributes to a sustainable peace.

Notwithstanding the above developments, and while peace and justice have been presented as two sides of the same coin, the practices of both transitional justice and peacebuilding have increasingly been criticized as expressions of ‘liberal peace’.¹³ This critique had emerged even before the apparent weakening of the international human rights agenda observed at the time of writing – that is, in the midst of broader geopolitical trends and a distinct anti-liberal and inward turn in the politics of certain Western countries. In the academic and critical policy debates, both practices have already for some time been subjected to the same critique, which labels them ‘liberal’ projects. In part, the critique has been connected to the more general disenchantment about the dilemmas and risks associated with transitional justice, such as potential implications of the pursuit of criminal accountability for peace negotiations, possible negative effects of truth-seeking on the victims and survivors and the alleged inability of vetting and reparations to deliver on what they purport to achieve, in terms of facilitating a positive transformation and correcting the harms inflicted.¹⁴ By and large, however, this particular critique emerged due to a feeling of unease with, and the problematization of, the content and dynamics of both phenomena. Criticism was directed at peacebuilding mainly because of its propensity to promote a liberal-style democracy and market economy, even in places where these may not be fitting or even possible.¹⁵ As for transitional justice, the critique of ‘liberal peace’ pointed to its interconnectedness and integration with democratization and human rights goals, its potential to have negative impacts and its ‘inappropriateness’ for the local context.

This book engages with the core of the ‘liberal peace’ critique: the assertion concerning the ‘external imposition’ of transitional justice and peacebuilding, which implicitly and explicitly pervades much of the now prevalent critique of transitional justice as a form, and constituent part, of ‘liberal peace’. Indeed, the ‘liberal peace’ critique of peacebuilding and transitional justice, as well as of transitional justice as a constituent part of peacebuilding, relies on the underlying assumption, and at times explicit claims, regarding the propensity of both peacebuilding and transitional justice to entail ‘external imposition’.¹⁶ However, and quite startlingly, empirical experience seems to largely contradict this core premise of the ‘liberal peace’ critique. A closer examination of the dynamics of the countries considered in this book unveils a much more complex picture than would be permissible under the premise of ‘external imposition’. Kosovo’s transitional justice landscape, for example, contains mechanisms that were indeed established largely by external players, such as the International Criminal Tribunal for the former Yugoslavia (ICTY), European Union Rule of Law Mission in Kosovo (EULEX) and the new prosecutorial process for addressing war-related allegations against the Kosovo Liberation Army (KLA), the so-called Specialist Chambers. At the same time, the invocation of the ICTY in one of the most important instances – namely the indictment of Milošević, together with a host of other prominent Serbian leaders – appears to have come about independently from, and even in defiance of, the preferences of key external players in Kosovo, in particular, the US and the UK. In East Timor, although the prosecutorial process under the Serious Crimes Process was established by the UN, it could not operate effectively, due to non-cooperation and obstruction by Indonesia and the central government of East Timor. Moreover, as a response to an internationally supported truth commission, the Indonesian and East Timorese governments established a separate and joint truth commission, named the Commission for Truth and Friendship (CFT). In Afghanistan, early in its peacebuilding transition, in 2002, the Office of the United Nations High Commissioner for Human Rights (OHCHR) and International Center for Transitional Justice (ICTJ) jointly supported and facilitated a documentation process by the newly established Afghanistan Independent Human Rights Commission (AIHRC) – a process that precipitated the adoption of an official government-endorsed transitional justice Action Plan in 2005, which identified individual criminal accountability amongst its priorities. However, as seen in 2007 and despite protests by the ‘international community’, the Afghan parliament adopted an amnesty bill that granted immunity from prosecution for any form of hostility committed prior to the establishment of the interim administration in December 2001. These examples suggest that the claim concerning external imposition, articulated in the framing of transitional justice and peacebuilding as ‘liberal peace’, demands further interrogation and scrutiny, at the very least. The central question in this book, therefore, is the following: Is transitional justice in peacebuilding determined through external imposition, and if not, how and by whom is it determined?

This book interrogates this critical question by conducting an empirical examination of three sites of peacebuilding – Kosovo, East Timor and Afghanistan – and developing a novel analytical framework based on a disaggregation of the key actors in peacebuilding into three categories: external actors, transitional justice promoters and transitional regimes. Through empirical examination of the three cases, the book reveals that the core proposition within the critique of ‘liberal peace’ – that it implies external imposition – is, in fact, not only overstated but potentially even flawed.¹⁷ Indeed, the remarkable and entangled agency of different sets of actors is grossly overlooked by assertions and suggestions that transitional justice in peacebuilding is externally imposed. As the book demonstrates, using a large amount of empirical evidence, transitional justice in peacebuilding is determined not by a single category of actors, nor on a single level, but rather through a complex, multi-level and, over the course of transitions, protracted web of agency and interactions among the three actor categories identified.¹⁸ Even where external actors may play a more pr...

Table of contents

• Cover
• Half-Title
• Series
• Title
• Copyright
• Contents
• List of Illustrations
• Preface
• Acknowledgements
• Abbreviations
• 1 Introduction: Liberal Peace and Justice?
• 2 An Actor-Centred Analytical Framework
• 3 Kosovo: Multilayered Accountability
• 4 Parallel Justice for East Timor
• 5 The Near-Absence of Justice in Afghanistan
• 6 Conclusion: Actor-Contingent and Malleable Justice
• Index