There is a pertinent, multifaceted dilemma in the implementation of peace and justice in post-conflict contexts. Over the last century, there has been growing interest in how countries recover from mass violence or human rights violations focusing on how transitional justice is applied to post-conflict societies: that is, societies where war is coming to a close but there is a distinct lack of peace .
Conceptually, transitional justice is highly contested but I will adopt the United Nations definition: the full range of processes and mechanisms associated with 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.
Under this definition, it is important to recognise there are complex tensions between peace and justice because of their difference in nature, and the aims and outcomes which are unique to each post-conflict society. ‘Peace’ is a term used to describe the procedures involved when resolving conflict and establishing sustainable peace .
It is overarching and includes conflict transformation, restorative justice, strong leadership, trauma healing, reconciliation and democratised development. It recognitises that when conflict ends, peaceful, stable social or economic development does not automatically follow . Therefore, there are tensions between criminal justice and peacebuilding in an attempt to reach peace.
I will explore how the process of achieving justice can often undermine peacebuilding. In order to assess the peace/justice dilemma, I will focus on criminal justice and reconciliation and democratisation as notions of peacebuilding. Reconciliation may be ambiguous but I will adopt Hayners view that it includes building or rebuilding relationships today that are not haunted by the conflicts and hatreds of yesterday .
First, I will analyse the principle of law, punishment and truth-seeking as mechanisms for accountability and reconciliation. I will explore if long-term peace can be obtained through restoration of civic trust whilst criminal justice is being implemented. I will consider the juxtaposition between memorialisation through victim recognition and societal reform which may mean erasing historical narratives. I will use Rwanda and Northern Ireland as case studies because the struggles they face as post-conflict are both similar and different as Western and Eastern countries. Finally, I will conclude a hybrid approach towards peacebuilding requires an element of criminal justice in conjunction with appreciation of underlying histories and culture. Criminal justice appears beneficial, but not essential, to victim recognition and moving forward; and promoting reconciliation, truth and trust should aid transformative relationships throughout society in the short and long term to achieve conflict resolution .
Criminal justice is called for by those who want to restore communities by ensuring perpetrator accountability. Often, weak judiciaries and fragile democracies initiate investigations and prosecutions for gross human rights violations, seeking to show no society is above the law so as to promote democratic principles . Although transitional justice scholars appreciate judicial mechanisms are a vital response to conflict-torn societies, reconciliation has become a mandate of these proceedings . The Rwanda tribunal statute explicitly states that criminal trials would contribute to the process of national reconciliation . Human rights standards, institutions and enforcement mechanisms have been strengthened by the international legal community, following the 1948 Universal Declaration of Human Rights . Human rights activists, diplomats and academics have increasingly employed a legal framework of justice to respond to law violators . The nature of war has shifted from inter-state to intra-state in the over the last century, intensifying the competition for power and wealth .
Often racial or ethnically motivated conflicts target civilians, especially women and children, devastating the infrastructure . and affecting localities – people at a neighbourhood level . This form of violence was synonymous with the Rwandan genocide where Government forces pressured Hutu civilians to arm themselves and encouraging them to rape and kill their Tutsi neighbours, and to destroy their property . This breakdown of familial networkds which provided the foundation for a functioning community is detrimental . Post-conflict societies call for communal accountability. Northern Ireland is still dealing with those post conflict challenges following the Troubles of the 1960s which created a violent society . The 1988 ‘Good Friday’ Agreement addressed issues of identity, reconciliation and residual ethnic divides . But, peace has been imperfect, tainted by the original atrocities although the social divide has been partially diluted . The mechanism for accountability remains important but emphasis lies with reconciliation measures.
Criminal justice intends to cover the remit of discovering and publicising the truth of past atrocities; punishing perpetrators; responding to the needs of victims; promoting the rule of law in emerging democracies; and promoting reconciliation . Legislation has brought the orchestrators of the crimes . National, international or hybrid trials of individuals have become the benchmark of accountability which focuses on individual perpetrators – often those in top positions in the government or military.
Holding government and military personnel to account under humanitarian lawthrough punishing them for crimes against humanity does not necessarily equate to justice for the victims, nor drive societal reconciliation. Advocates for individualised accountability and justice suggest international trials can be an effective response to communal violence in an effort to obtain peace , . Prosecuting leaders who ordered or directed human rights violations partially contributes towards securing a moral and ethical response to victims because it recognises victims innoncence whilst acknowledging their pain . Minow notes guilty verdicts afford public acknowledgment of what happened, and its utter wrongfulness. Perpetrators are forced to face their accusers. If convicted, the stigmatisation and punishment can be the justice that victims sought . Perpetrators are often symbols for their cause, regime and ideology: criminal punishment allows a grieving society to begin the peace and democratisation process .
Following criminal justice an apology can be an effective mechanism of reconciliation. It acknowledges victims’ suffering as well as the responsibility of the accused whichprovides some tangible punishment particularly if perpetrators seek submission due to feelings of guilt . Therefore, criminal justice goes some way to expose the intentions of the perpetrators, which is essential to peacebuilding. This identifies the victim as the holder of rights, thus providing some justice relief . Aacademics and activists beleive that perpetrator punishment re-enforces the boundaries of what is considered acceptable, removing possible threats to a new regime and deterring future exploitations . For successor regimes in particular, public sanctioning of war criminals shows the past deserves condemnation . Creating a power vacuum by removing the the country’s leaders could exacerbate the dilemma between justice and peacebuilding. Whilst justice may be served, without a government there is no organisation to support displaced people, broken infrastructure and provide basic humanitarian needs. The resulting low civic trust could prevent any chance for reconciliation, re-establishing equality and law .
In Northern Ireland none of the major perpetrators of violence had been definitively ‘defeated’, so each group could claim victory. As a result there were few prosecutions, despite 3,703 deaths and 40,000 injuries during the Troubles . In 2013, Northern Irelands Attorney General John Larkin said there should be an end to investigations into killings, including all deaths caused by paramilitaries, police or the Army before the Good Friday Agreement . Abolition of the Historical Enquiries Team would have removed the formal accountability mechanism. Corrigan, from Amnesty International condoned the proposal as an utter betrayal of victims fundamental right to access justice . Clearly, tThere is little incentive for ex-soldiers to confess their crimes so without justice, reconciliation has proved difficult . As society is governed by a joint narrative, this is detrimental to peace because it has been built on discontent and a continued religiously-politically divided society . Larkin’s proposal was rejected which demonstrates the importance of clear governance in a post-conflict society to ensure justice and peace are implemented respectively.
However, Rwanda confounds the claim that removing the country’s leaders will exacerbate the dilemma between peace and justice. Rather, it exemplifies that leadership continuity can prevent justice and peace being achieved in different ways. In Rwanda, Kagame was Vice-President during the genocide and stayed in became President in 2003 . He faced no criminal prosecutions and continues to undemocratically rule Rwanda, potentially until 2034 and has had a role in the assassination of exiled political opponents . Reportedly, he is widely supported holding 99% of the vote; however there are questions as to the legitimacy of his support . Therefore, it could be argued that, political and military leaders who have evaded accountability for their deeds may have done so because of popular support . However, a Rwandan citizen stated we are told they are sorry, they won’t do it again. Some people believe that. I am not one of them, highlighting the state of fear and distrust which prevents peace . Ultimately, the authoritarian government have perpetuated violence, perhaps due to a lack of criminal justice and peacebuilding attempts alone have therefore fallen short .
However, focussing on the individual problematises the function of criminal trials to provide accountability as well as creating a potential for peace. Perpetrator punishment may have the unintended consequence of transforming them into scapegoats to perpetuate the political ideology of a specific group . This may have a negative impact which undermines the benefits of punishment as it does not pave the way for reconciliation but rather perpetuates a social divide and prevent future coexistence . Moreover, perpetrator confessions or apologies area powerful form of justice although their are often questioned . It would be hasty to assume that reconciliation is secured by closure. Galtung suggests assurances that hostilities will not be repeated, combined with a healing process produces a reconciliation procedure in a post-conflict state . However, arguably this a narrow perspective which gratify through revenge: but it ignores the fact that revenge would hinder the healing process. According to a Rwandan genocide survivor, I accept [the killers’]