EU Foreign Policy, Transitional Justice and Mediation

Laura Davis

• Publisher: Routledge
• Year: 2014
• ISBN:
  9781317750093
• Edition: 1
• Topic: Politik & Internationale Beziehungen
• Subtopic: Frieden & globale Entwicklung

This book analyses how the European Union translates its principles of peace and justice into policy and puts them into practice, particularly in societies in or emerging from violent conflict.

The European Union treaty states that in its relations with the wider world, the EU is to promote peace, security, the protection of human rights, and the strict observance and the development of international law. The EU is active in peace processes around the world, yet its role in international peace mediation is largely ignored.

This book offers the first scholarly analysis of how the EU engages in peace processes and justice for human rights violations, focussing on the point where mediation and transitional justice intersect. Drawing on extensive fieldwork, the book includes case studies of how the EU sought to promote peace and justice in the Democratic Republic of Congo (DRC), how it supports international justice through the International Criminal Court, and a model of the EU as a mediator. These provide an evidence-base for policy makers and practitioners as well as strong empirical contributions to theory.

The book addresses whether and how the EU pursues its principles of both peace and justice in conflict zones, where, in practice, these principles may be in conflict, and the implications of these findings for understanding EU foreign policy and the EU as a security actor.

This book will be of much interest to students of EU foreign policy, transitional justice, peace and conflict studies and security studies.

1 Peace and justice in principle

DOI: 10.4324/9781315796291-2

In its relations with the wider world, the Union shall uphold and promote its values and interests and contribute to the protection of its citizens. It shall contribute to peace, security, the sustainable development of the Earth, solidarity and mutual respect among peoples, free and fair trade, eradication of poverty and the protection of human rights, in particular the rights of the child, as well as to the strict observance and the development of international law, including respect for the principles of the United Nations Charter.

(European Union, 2008, Art. 3.5)

I consider principles to be the stated normative values in EU relations with the wider world. The Treaty on European Union states in Article 3.5 that the EU will promote the principles of peace, security, the protection of human rights, and the strict observance and the development of international law, as well as other values, in its relations with the wider world: peace and justice in shorthand.

Scholars have considered the explicit inclusion of principles in foreign policy in depth. Arnold Wolfers developed the notion of ‘milieu goals’, where states aim to shape the environment beyond their borders rather than acquire or defend possessions, and which resonated with EU scholars. Peace and the protection of human rights are good examples of milieu goals, according to Wolfers, because efforts to attain goals of this nature ‘make sense only if nations have reason to concern themselves with things other than their own possessions’ (Wolfers, 1962, p. 79; Smith, 2003).

The notion of the EU as a ‘civilian power’ was first put forward in 1972 by François Duchêne and enjoyed something of a comeback in the 2000s (Orbie, 2008, p. 8). It argues that the EU need not develop as a military superpower in order to be a world power; its economic might and attractiveness to other states, particularly on the European continent, would reduce the need for military superiority. In Joseph Nye’s terminology, the EU is a ‘soft power’ (2004). For Karen Smith, the creation of ESDP and possessing military instruments, even if their use was only restricted to humanitarian tasks, closed off the potential for civilian power (Smith, 2000). Christopher Hill and Michael Smith note that the notion of milieu goals and the concept of civilian power Europe have been central to the ‘actualisation of certain principles of conduct in foreign policy’. While this may initially have been somewhat ‘sloganistic’, they detect a move to ‘more practical methods of standard-setting, such as the promotion of human rights’ (Hill and Smith, 2005, p. 397).

Norbert Elias’s ‘civilising process’ (Elias, 1978) has also been connected to the notion of civilian power. Andrew Linklater draws on this and identifies the development of international criminal law and the establishment of the International Criminal Court as evidence of a global civilizing process, which aims to reduce cruelty in world affairs and increase the empathy between different peoples (Linklater, 2005), and of international society in which states and political communities behave in a certain way and develop and maintain rules and institutions through which to conduct their relationships (Bull and Watson, 1984). In this tradition, Linklater and Hidemi Suganami (2006) identified a set of principles for ‘good international citizenship’. Linklater identifies seven forms of harm that the EU should avoid – including human rights violations, whether through commission, omission or negligence. The extent to which it does so is the measure of its ‘force for good’ (Linklater, 2005). However, it is worth noting that for scholars with an interest in the developing world, the notion of ‘civilising process’ may come too close to the colonial ‘civilising missions’ for comfort.¹

For many scholars, the nature of the EU’s objectives are more important in defining the EU’s foreign policy than a discussion of whether the tools are military or civilian. The tools are, after all, overwhelmingly civilian, even within CSDP. ‘Normative power Europe’ was defined by Ian Manners (2002, p. 252) as ‘an attempt to suggest that not only is the EU constructed on a normative basis, but importantly that this predisposes it to act in a normative way in world politics’. Normative power Europe has proven a strong stimulus to research, and Richard Whitman (2013) notes the emergence of a third wave of nomative, or neo-normative theorizing.

The EU’s support for Responsibility to Protect (R2P), which suggests that normative action does not necessarily preclude military intervention, seems to reinforce this approach. R2P was developed by the UN’s International Commission on Intervention and State Sovereignty, and allows for military intervention, under strict conditions and with UN Security Council authorization, in contexts where states fail to protect their people from serious harm (International Commission on Intervention and State Sovereignty (ICISS), 2001). When R2P was discussed in the case of Darfur, different interpretations emerged on the role of military force and the other preventive aspects of the principle (Williams and Black, 2010). But in the case of Libya, UN Security Council Resolution (UNSCR) 1973, which authorized the NATO campaign in that country, explicitly cited R2P and referred back to the previous Resolution, UNSCR 1970, which had also used the language of R2P.²

The concept of R2P and Linklater’s connection of the International Criminal Court and international criminal law with international society, underline the multilateral setting in which the EU operates – a theme I return to throughout this book. But first, I turn to the principles at the heart of this book: peace and justice for human rights violations in societies in, or emerging from, conflict. In this chapter, I draw on scholarly debates and policy definitions from international organizations, particularly the United Nations, to discuss how these concepts – broad and contested as they are – can be understood in policy and practice rather than as philosophical concepts.

Justice for human rights violations

[Justice is] an ideal of accountability and fairness in the protection and vindication of rights and the prevention and punishment of wrongs. Justice implies regard for the rights of the accused, for the interests of victims and for the well-being of society at large. It is a concept rooted in all national cultures and traditions and, while its administration usually implies formal judicial mechanisms, traditional dispute resolution mechanisms are equally relevant. The international community has worked to articulate collectively the substantive and procedural requirements for the administration of justice for more than half a century.

(UN Security Council, 2004, p. 4)

This is how the Secretary General of the United Nations defines ‘justice’. Although the Treaty on European Union commits the EU to human rights protection and the strict observance and development of international law, the EU does not define ‘justice’ per se. To understand how the EU may promote justice for human rights violations, particularly in societies in or emerging from violent conflict, I consider three key areas: transitional justice, the rule of law, and security sector reform (SSR). I address rule of law and security sector reform only insofar as they address justice for human rights violations, as they may each also address issues not directly relevant to my line of enquiry, such as tax law or border management. For some policy-makers, such as the Organization for Economic Cooperation and Development’s Development Assistance Committee (OECD DAC), the rule of law is part of security sector reform. Others, such as the European Commission, keep the two separate. Transitional justice, the rule of law, and security sector reform are interlinked and can overlap – the creation of a special chamber within the national system to try war crimes, as in Bosnia-Herzegovina, could count as all three, for example. But transitional justice is different from the other two as it refers explicitly to addressing the legacy of systematic abuse, and as policy-makers tend to address the three fields separately, I also treat them separately.

Transitional justice

Transitional justice has emerged as a set of tools through which societies may address the legacy of systematic and widespread human rights abuse in the aftermath of violent conflict or authoritarian rule. Paige Arthur traces the emergence of the concept of transitional justice to the late 1980s and early 1990s in response to the transitions from authoritarianism to democracy in Latin America. She identifies a political belief that democracy was possible everywhere, regardless of economic development, and a shift in emphasis of the Left from ideology to individual human rights as contributing factors. She observes that these circumstances have fundamentally influenced how the ‘justice’ in transitional justice is understood and pursued. The justice is for individual human rights violations and not the other rights and needs of populations in a post-conflict environment – not least the socio-economic – and is pursued primarily through legal-institutional means (Arthur, 2009).

Arthur (2009, p. 357) also identifies the normative aims of transitional justice as ‘achieving justice for victims, and achieving a more just, democratic, order’. The duality of these objectives – legal (accountability for its own sake) and political (contributing to a particular political arrangement) – is reflected in UN Secretary General Ban Ki-Moon’s definition of transitional justice as ‘a society’s attempts to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation’ (UN Secretary General, 2010).

The relevance of the ‘transition paradigm’ to transitional justice is debated (Carothers, 2002) yet clearly societies emerging from – or trying to emerge from – violent conflict are in some form of transition, although the end-destination is not necessarily evident. The notion of transition to democracy was at least an early underlying assumption in the early days of transitional justice (Carothers, 2002; Teitel, 2003; Arthur, 2009; Bell et al., 2004), but in conflict and post-conflict settings there is less certainty – and perhaps now less optimism – about the endpoint of transition to.

Transitional justice may seek to deal with the past, to address current political problems, and to prevent recurrence in the future simultaneously. These different objectives have led Christine Bell (2009, p. 6) to challenge the idea of a transitional justice ‘field’, arguing that ‘transitional justice’ should rather be understood as a ‘label or cloak that aims to rationalise a set of diverse bargains in relation to the past as an integrated endeavour, so as to obscure the quite different normative, moral and political implications of the bargains’. The contested scope and aims of transitional justice have significant implications for external actors, suggesting they need to clarify how they and their potential partners understand transitional justice as a basis for engaging with initiatives.

The human rights considered in this book are those claimed to be universal – not limited to any particular group by virtue of citizenship or nationality – and as such do not depend only on a (national) social contract. Amartya Sen convincingly counters equating human rights with legislation alone. He argues that public articulations on human rights, such as the Universal Declaration on Human Rights, are ethical assertions rather than propositions on what is already legally guaranteed. Declarations often prompt new legislation, yet legislation is only one way of furthering the cause of human rights. After all, even when human rights are enshrined in the law, they may be under-enforced for some groups, such as minorities or women (Ní Aoláin and Rooney, 2007; Sager, 1978). Naming and shaming of violators, public information campaigns, and monitoring how laws are enacted, are just a few of the complementary ways of promoting greater respect for, and protection of, human rights. Legislation plays a part in identifying and protecting human rights, but ‘it is important to give the general ethical status of human rights its due, rather than locking up the concept of human rights prematurely within the narrow box of legislation – real or ideal’ (Sen, 2009, p. 366).

Norms are developed and upheld in many ways in society, not only through the official institutions of the state. Many social groups may have a regulatory function (Griffiths, 1986), so activism aimed at social change to respect and protect human rights as ethical standards and social norms is as important as seeking protection through just institutions. It is society at large, including and going beyond the judicial institutions, that is most important for justice – not the institutions alone. This is particularly the case in countries where the formal justice system is dysfunctional, absent or untrusted. For these reasons I take a broad view of transitional justice, considering how social actors may contribute to the transition and new political order, including (and looking beyond) institutional reform at the legal-institutional level. This is not to deny a central role for the law and legal protection of rights in transitional justice – accountability for human rights violations must be at the core of transitional justice for the term to be meaningful (Bell, 2009) – simply that the law is insufficient in itself to deliver that accountability. Seeking justice for widespread human rights violations needs then to combine strengthening just institutions and promoting social change to protect human rights, and pursuing accountability for violations. As human rights are universal, rights are enjoyed by each individual by virtue of her humanity and regardless of the...