A few weeks ago I spoke with a senior transitional justice researcher and aspiring politician from northern Uganda about the trials (if you excuse the pun) and tribulations of achieving peace and justice in the region. He described sentiments familiar to those who have engaged in the “peace versus justice” debate:
“I don’t see it as a debate. It is common sense that in situations of what we have been experiencing, strategically we should be sequencing these issues, prioritizing and looking at what is best in the short-term and what is best in the long-term. It is very legitimate in any process that we must create an enabling environment that can guarantee justice can be done…If you start asking for justice even before you create that enabling environment, it is not even a debate, it is foolery…We must sequence them.”
I subsequently challenged him on the effectiveness of his argument to which he responded that Argentina was the ideal example of a state which had successfully sequenced peace and justice.
The “sequencing argument” has become a popular feature in the rigid and harshly dichotomous “peace versus justice” debate. The argument is attractive because it represents an attempt to find ground between the polarizing views that there is “no peace without justice” and “there is no justice without peace.” While the sequencing argument is closer to the latter in suggesting that justice may have to follow peace it largely acknowledges that justice is necessary in the long term. Unlike scholars of a realist bent who are sceptical of any attempt to achieve justice in conflict and post-conflict contexts, the point is not to reject accountability and reconciliation but to create an environment in which pursuing justice enforces rather than destabilizes peace.
The sequencing argument is rather nuanced and intuitive. It weaves together the two major strands of thinking on peace: positive peace and negative peace. Negative peace, the cessation of large-scale, direct violence, is required before justice can be pursued. If justice is sought prior to the “silencing of the guns”, then it risks prolonging the conflict. However, once a negative peace is secured, justice should be pursued. Only by identifying and rectifying past wrongs – including human rights abuses – can a more encompassing, positive peace be achieved. In short, the sequencing argument suggests a trajectory of:
violent conflict –> negative peace –> justice and accountability –> positive peace
Proponents of the sequencing argument have, however, not thoroughly scrutinized how their theory translates into practice. On the ground, the sequencing argument presumably looks a little like this: in order to achieve a cessation of violence, parties enter inclusive peace negotiations to achieve a power-sharing agreement and peaceful transition. The parties discontinue active conflict while even the most brutal and unsavoury of leaders are guaranteed amnesties as an incentive to cease violent activity. Once stability is assured and the time for accountability is ripe, those amnesties are revoked and the leaders of the conflict are brought to account, ushering in positive peace and justice.
But just how many times could that possibly work? No dictator, tyrant or rebel leader would ever accept an amnesty that he or she believed would subsequently be revoked! It is for this reason that premeditated sequencing has no history in practice – surely something that proponents of sequencing peace and justice should acknowledge.
The sequencing argument also discounts the reality that it is much more difficult to revoke granted amnesties than to never grant them at all. Power-sharing agreements often reward leaders not only with protection from prosecution but with powerful economic and political positions. These figures are thus rewarded with center-stage post-conflict positions which allow them to gain rather than lose the ability to forcefully retaliate when their impunity is challenged. This, in turn, may make the subsequent, sequenced pursuit of accountability much more dangerous and potentially destabilizing.
The case of Argentina is instructive in the context of exposing the sequencing argument for its inconsistencies. Following the Dirty War of the early 1980s, a period marked by abductions, torture and murder of political ‘subversives’, Argentine President Raul Alfonsín sought to bring key leaders of the military junta to trial, overturning a self-amnesty which the dictatorial President General Reynaldo Bignone had signed in the dying days of the junta’s power. However, fears quickly spread that trials of the junta would instigate a return to violence and overwhelm the possibility of continuing prosecutions. As a result, the government of Carlos Menem granted the military junta leaders an amnesty for the crimes they had committed. Eventually, propelled by continued pressure from civil society groups, particularly the Grandmothers of the Plaza de Mayo, as well as the identification of some legal loopholes, Argentina recently began to prosecute the architects of its darkest period and declared that amnestying their crimes was unconstitutional. Today, Argentina is considered to be an inspiration for how to transition from autocracy and atrocity to democracy and the rule of law.
For some, Argentina’s experience in confronting its past is evidence that a sequenced approach is best. This is the lesson they draw. Unfortunately, it is a misreading of Argentina’s efforts to come to terms with its past. Argentina never decided to sequence peace and justice. On the contrary, consolidating peace and democracy while achieving justice was always a struggle. At the outset, it was never obvious that the transitional democratic government of Alfonsín would end up granting amnesties to its tyrants. Nor was it clear that the amnesties that Menem granted would be subverted and their beneficiaries prosecuted. Argentina sequenced justice as a result of a tumultuous experience not through premeditated intent. This makes Argentina’s experience all the more remarkable but its application to other contexts much less appropriate.
There are legitimate and difficult tensions when pursuing accountability in the context of active conflicts. The relationship between peace and international criminal justice remains more murky than clear. Every effort to break the black-and-white, either-or nature of the “peace versus justice” debate is welcome and warranted. But the sequencing argument just isn’t up to the task.
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