“Rethinking Peace and Justice” Symposium: Concluding Reflections

Ron Slye and Louise Mallinder join JiC for the concluding piece in our symposium on ‘Rethinking Peace and Justice’. Ron and Louise are the authors of the IFIT report to which the contributors responded. Ron is a professor of law at Seattle University. Louise is Professor of Law at Queen’s University Belfast. All of the other contributions to the symposium can be found here.

(Photo: ~W~ / Flickr)

We are grateful to Justice in Conflict for hosting this symposium on the publication of Rethinking Peace and Justice, which we co-authored on behalf of the Law and Peace Practice Group of the Institute for Integrated Transitions. We are also grateful to all the contributors for sharing their reflections on how themes explored in our report resonated in the contexts in which they work. Their thoughtful commentaries underscore the importance of the issues we raise in the publication and provide concrete illustrations of how taking a more flexible and less ideological approach to accountability and justice can further justice and efforts to negotiate peaceful outcomes to conflict.

The five different contributions illustrate how adopting a more nuanced and creative approach to balancing peace and justice is relevant at different points in a process of conflict resolution. Galuh Wandita’s post on peace efforts in Asia focuses on the importance of adopting a more creative approach in the context of an ongoing justice process in Aceh, where peace efforts paid insufficient attention to the importance of justice. Stephen Rapp’s post on Syria emphasizes that providing relief to victims is as important to include in efforts to influence an ongoing conflict as it is in developing a post-conflict road-map.  He also underscores the importance of creative approaches in the context of an ongoing conflict that is yet to enter into a serious phase of negotiation. Sarah Dunne’s contribution illustrates the importance of creative approaches to peace and justice in the context of an ongoing peace negotiation in Ukraine. The contribution by Juan Carlos Botero and Mateo Merchán illustrates the importance of continued flexibility and assessment of the balance struck between peace and justice in the early stages of a newly-created justice process in Colombia. Finally, Mark Kersten takes a more global perspective, exploring some of the implications and possibilities that arise if a more creative approach to balancing peace and justice is adopted at the international level, including by the Security Council and the ICC.

While each of the posts contributes unique perspectives to the conversation we aimed to encourage through our publication, we here highlight four cross-cutting themes that are present to some degree in each:

  • The challenges of delivering justice during and after conflict

  • Victim community empowerment and agency

  • Social reconstruction and victim healing as complements to prosecution

  • Legal leniency measures that can prevent violence and facilitate truth, justice, and reparations

The challenges of delivering justice during and after conflict

Over the last two decades, it has been increasingly common for human rights actors and international policymakers to contend that criminal prosecutions are a necessary component of sustainable peace and an obligation under international law in response to international crimes and gross human rights violations. This position, while laudable, does not reduce the profound legal, security, political and social challenges to delivering justice during or after armed conflict.

The contributions to this symposium each make clear that these challenges remain in different ways in each setting. For example, Stephen Rapp argues that the IFIT report “is timely because these issues continue to resonate in some of the most significant policy debates of our time.” He further observes that the relevance of these questions endures as we have not reached a point where “there is a greater possibility that high-level actors will face criminal prosecution for serious violations of human rights that constitute international crimes. Far from it.” Mark Kersten similarly observes that the peace versus justice debate “isn’t going away” and he draws on empirical research to report that leading experts have acknowledged that there is “no obvious answer” to these dilemmas. Indeed, as Juan Carlos Botero and Mateo Merchán observe, these challenges can remain even for comprehensive transitional justice approaches such as Colombia’s, which encompass prosecutions, truth recovery and reparations. These authors state that addressing questions of scale will continue to be the great challenge “in scenarios of mass atrocities, where it is not possible to prosecute all those responsible and satisfy the rights of all victims individually.”

Notwithstanding the differences between the contexts discussed in the contributions, there is a consensus among the authors that these inevitable peace and justice challenges must be addressed, above all, in a realistic and creative manner. For example, Galuh Wandita distinguishes between “practical needs” (defined as measures to preserve life and bring peace) and “strategic needs” (to be addressed through measures to acknowledge victims and sanction perpetrators). She argues that “During peace negotiations, we work on the practical needs, with the long-term goal of achieving some kind of justice.” All of the contributions to this symposium recognize the need to address such practical challenges while developing multifaceted transitional justice approaches and ensuring that victims’ voices are empowered through their engagement.

Victim community empowerment and agency

Each of the contributions touches upon the importance of empowering victims and their representatives and increasing their agency in any peace and justice process. Galuh Wandita includes a quotation from Samsidar, a prominent activist in Aceh, reflecting on the justice process there: “Anything concerning victims did not come from the parties (of the peace agreement) but from civil society.” Wandita observes that peace agreements often focus on combatants and neglect the interests of victims, and thus recommends that “Victims’ groups should be strengthened and prepared to engage local and national government officials in a struggle for truth and justice that can take decades.” Stephen Rapp, in his discussion of creative strategies to address peace and justice during an ongoing conflict, reiterates the importance of having the perspective of victims present in peace negotiations. In the Ukraine, Sarah Dunne observes that the debates over accountability have taken a strongly punitive turn with little engagement with victims and other relevant stakeholders. At the same time she argues that any amnesty or leniency proposal that fails to take into account “victims’ fears, needs and elements that could contribute to non-repetition” risks polarizing the debates over peace and justice and undermining attempts to develop a creative transitional justice solution. In the case of Colombia, which is in the early stages of an innovative approach to accountability, Juan Carlos Botero and Mateo Merchán argue that a process that incorporates victim participation must continuously ensure that victims are taken into account so that they “feel represented in the policies, plans, and practices that are investigated, prosecuted and sanctioned” through the new justice process. While Mark Kersten does not directly address the importance of victim empowerment, one can see the importance of such an approach to the reform proposals he makes with respect to international criminal justice.

Social reconstruction and victim healing as complements to prosecution

A number of the contributors directly challenge the tendency by some to equate justice with retributive prosecution (see in particular the contributions by Sarah Dunne and Mark Kersten). Instead, as we argue in Rethinking Peace and Justice, a victim-centered approach that is serious about healing and social reconstruction must look well beyond prosecution. Each of the contributions touch on this point and illustrates the importance of taking a more creative approach to victim-oriented justice and the risks of ignoring the complex needs of victims. Galuh Wandita, for example, argues for increasing the capacity of victims’ groups to address trauma, document and share their experiences, and strengthen their socio-economic base. Stephen Rapp’s contribution centers on the importance of addressing the need of victims for reconstruction and repair during an ongoing conflict. Sarah Dunne stresses the importance of any amnesty or other form of leniency being grounded in or accompanied by a framework that includes addressing victims’ needs for recovery. Juan Carlos Botero and Mateo Merchán observe that the important procedural rights given to victims in the novel accountability system developed in Colombia underscore the creative opportunity available for incorporating into an accountability mechanism a conception of justice that furthers victim healing and reconstruction. In arguing for reforms at the global level, Mark Kersten refers to some of the important lessons that can be learned by looking at restorative justice approaches in Canada and other places that better incorporate and address the needs and rights of victims.

Legal leniency measures that can prevent violence and facilitate truth, justice and reparations

The contributors to this symposium all welcome our report’s effort to stimulate honest and creative discussion of how to balance peace and justice. In addition, we all seem to agree that creativity and leniency should not be used to justify an absence of efforts to hold perpetrators to account, address the needs of victims, and prevent future violations. As indicated by Stephen Rapp, this understanding of the parameters of acceptable leniency rules out the possibility of unconditional amnesties for serious crimes and violations.

However, within the bounds of permissible leniency, several of the authors highlight that transitional justice mechanisms must be in synch with conflict resolution goals. As Sarah Dunne argues, the mechanisms must “answer victims’ needs for recovery” and connect to clearly articulated goals of furthering the peace process. Referring to the living experiment of post-conflict peacebuilding in Colombia, Juan Carlos Botero and Mateo Merchán state that “While ‘the jury is still out’ on this novel justice approach for the prosecution of grave crimes, early indications suggest that this procedure is already generating a reparation and restoration dynamic in Colombia”.

These are just four of the many important themes that arise out of the rich and contextualized contributions to this symposium.  One of our initial goals in writing Rethinking Peace and Justice was to provoke a thoughtful conversation around issues that many of us feel can become over-simplified in the heat of advocacy and contested interests that inform policy-making. We look forward to continuing this conversation with the readers of Justice in Conflict and the broader global peace and justice communities.

About Mark Kersten

Mark Kersten is a consultant at the Wayamo Foundation, a Senior Researcher at the Munk School of Global Affairs, and a law student at McGill University Law School. He is also author of the book, 'Justice in Conflict - The Effects of the International Criminal Court's Interventions on Ending Wars and Building Peace' (Oxford University Press, 2016).
This entry was posted in Peace Negotiations, Peace Processes, Peacebuilding, Rethinking Peace and Justice Symposium, Transitional Justice and tagged , . Bookmark the permalink.

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