FROM AGREEMENT TO DURABLE PEACE
So far, the discussion has concerned how the peace vs. justice question plays out in moving from conflict to dialogue and from negotiation to an agreement. It will now turn to the question of justice and the longer-term durability of agreements and peace.
First, the postagreement tasks of securing implementation and compliance are considered. Next, the broader and longer-term imperative of durable peace is discussed.After the agreement: justice in implementation and compliance
Recent research highlights the importance of continued negotiations after an agreement has been signed, to secure implementation and compliance (Spector & Zartman, 2003; Victor et al., 1998). This often determines whether an agreement on paper will remain just that, or actually result in an effective outcome. While some further negotiation is always needed after signature, international agreements in some areas (e.g. the global environment) appear to be particularly at risk of being stillborn. Very little research has, however, concerned itself with the role of justice and the peace vs. justice question in this phase. But important justice issues do arise in matters of implementation and compliance. Among them is the internationally well-established principle (legal and moral) concerning the obligation to honor and comply with freely negotiated agreements. These issues are, as reality demonstrates, perfectly capable of destroying entire peace agreements and peace processes.
First of all, one or more parties may not proceed with ratifying and implementing an agreement they have signed, or may delay doing so for a long time. There may be many reasons, more or less under their control. Complex legal or technical questions regarding ratification and enforcement may have to be resolved both within and between countries. Implementation may involve too great costs for some countries, for which the agreement itself does not provide cover.
Domestic stakeholders, for example, in business or industry, may see their interests damaged by what has been agreed and may be strong enough to build barriers. Resistence to compromise on sovereign rights or lack of a sense of urgency are other reasons for agreements not being implemented (Susskind, 1994). Secondly, even if implemented, an agreement may be undermined with time by violations and failures to comply with obligations under it. Here lack of enforcement mechanisms and penalities, and insufficient incentives to comply, usually play a role. Sometimes states can avoid compliance and the costs it entails, and yet benefit from the agreement in much the same way as complying parties. With such free-riding, the costs are pushed over on other parties while the gains are retained. It is particularly tempting and therefore rampant when it comes to global public goods (e.g. a strong weapons non-proliferation regime, the global climate), the benefits of which are universally accessible and indivisible and cannot be denied to particular parties (Albin, 2003). Thirdly, parties which have by choice or not stood outside of the negotiation of the agreement may also choose to free-ride, or be capable of undermining it in other ways.In all these cases, the legitimacy of the agreement will suffer. Powerful charges of injustice arise when parties do not honor agreements which they themselves have formulated and signed. In fact, they may be far more disruptive than feelings of injustice regarding the terms of the agreement itself. There are many international examples of this; among them, the negotiations between Israel and the PLO since 1993 and negotiations under the Nuclear Non-Proliferation Treaty, particularly since 1995. How far things can, and should, go before the agreement collapses depends on the circumstances, including costs of withdrawal for individual parties and the value of their alternatives. In one view of justice, the obligation to comply remains as long as the agreement is effective in serving its goals-and enough other parties also comply to make this possible (Barry, 1989).
Whatever the particulars, justice in matters of implementation and compliance generally serves peace, while negligence of it or outright injustices will undermine peace.After the war: transitional justice and peace
How can societies emerging from civil war and/or repressive rule deal with past injustices, and still move toward durable peace? Will attempts to redress past injustices promote or tear asunder the creation of a new peaceful (democratic) society? This is the context in which the peace vs. justice question has so far been most intensively debated, both in scholarship and policy-making. It has given rise to a large research literature, by now sharply divided over how to answer it. And it has made human rights activists collide with conflict managers over proper strategy in efforts to end devastating internal wars around the world (see Parlevliet, 2002). The apparent divisions result partly from focus on different aspects of justice and peace, and different time frames: behind the same labels, people talk in fact about different things which are not necessarily contradictory. But there are also genuine differences in the importance and priority attached to aspects of justice and peace, which remain unresolved.
“Transitional justice” here refers to the norms and instruments on the basis of which a society or new government, in transition from armed conflict and/or authoritarian rule, addresses past injustices committed in war or by the previous regime. At times, the term refers also to measures to prevent further atrocities and secure justice in the future; for example, through a new justice system (Call, 2004). It is about principles of justice, as well as the means used to act upon them. Depending on the context and the choice of the new government, transitional justice can entail a range of approaches (Elster, 2004): legal (e.g. the restoration of the rule of law), political, economic, administrative, psychological (e.g. reconciliation - see Rosoux's contribution to this volume), or a combination of these.
The general goals of transitionaljustice are durable peace and/or stable democratic government. Often societies are in transition from both armed conflict and autocracy, and regard democratization as a pillar of a new peaceful order. No consensus exists, however, on a more specific set of goals or criteria which transitional justice should fulfill to be deemed successful and completed. Also discussed is whether this kind of justice, in principle and practice, reflects a political-pragmatic compromise on “real” justice in times of transition rather than its own type of justice.Most debated is the question of what principle (and interpretation of it), and what instrument of transitional justice should be chosen under what conditions.4 Different proposals are made in the literature, corresponding to the diversity of situations and approaches contained within the thinking and practice of transitional justice (e.g. Graybill & Lanegran, 2004; Kritz, 1995; O'Connor & Rausch, 2007). Two fundamental principles are retributive justice and restorative justice. The former holds that those responsible for past injustices (e.g. war crimes, human rights violations) should be held accountable and be punished. The focus is on the offenders and committed wrongdoings. The associated instruments are mostly legal, such as criminal trials in international or national courts and tribunals, and reform of the existing national judicial system. Restorative justice is about healing the wounds of and compensating the victims, and restoring relationships and reconciling communities involving former enemies. It involves measures such as truth commissions and truth telling, reparations and compensation, and acts of apology and forgiveness. One study distinguishes five types of approaches to transitional justice, drawing on wide-ranging case examples of democratization processes: criminal justice, historical justice, reparatory justice, administrative justice and constitutional justice (Teitel, 2000).
In another study, focus is also on criminal justice, but with a different emphasis on vindication of the victim rather than punishment of the guilty (Biggar, 2001). Yet another holds that the restoration of justice after war must involve three elements: (re-) distributive justice, as a means to address causes of conflict; legal justice, as a means to deal with symptoms of conflict; and rectificatory (roughly retributive) justice, as a way to handle the consequences of conflict (Mani, 2002, 2005).Of course, the debate is not only about the principles and meaning of transitional justice. Most of all, it is about strategy. One discussion is about how different principles and instruments of transitionary justice may in practice work against each other, for example those of retributive and restorative justice. Offenders must participate in various processes of restorative justice, but are of course unlikely to do so if at the same time tried and punished in the name of retributive justice (see Kauffman, 2005). Another set of findings suggest that mechanisms such as trials and international tribunals do not really promote reconciliation (Stover & Weinstein, 2004). The most relevant discussion here is exactly over the peace vs. justice question: what aspects of transitional justice are considered possible and prudent to pursue given political realities and the politics of peace-making and peace-building. There are essentially three overlapping answers given in the research literature to date.
One proposed answer is that peace comes first and must be prioritized: it can be or is best built without justice at least for an initial period of time. Peace—for example, the end of violence and internal conflict—is the basis for the success of other pursuits, and a precondition for achieving justice subsequently. Attempting to address justice issues first or together with peace issues is politically unrealistic and dangerous, and will lead to neither justice nor peace. Justice must follow after peace—or else it will undermine the achievement and durability of both peace and justice.
Proponents of this approach stress the need for pragmatism, particularly in war- torn societies marked by political volatility and institutional weaknesses. In this context, attempting to punish those responsible for gross human rights violations, for example, may only lead to further crimes. One study holds that “a norm-governed political order must be based on a political bargain among contending groups... on striking politically expedient bargains that create effective political coalitions to contain the power of potential perpetrators of abuses. Amnesty— or simply ignoring past abuses—may be a necessary tool. Once such deals are struck, institutions based on the rule of law become more feasible” (Snyder & Vinjamuri, 2003/04, p. 6). In arguing for pragmatismand the “logic of consequences”, it examines the use and result of three approaches to the pursuit of justice and peace in 32 cases of civil wars from 1989 to 2003. Other research points out that the absence of provisions for justice, such as human rights, in a peace agreement does not inhibit their inclusion or role in subsequent laws (Putnam, 2002).
The second basic answer to the peace vs. justice question in post-war societies starts off from a different premise. Both justice and peace need to be pursued from the outset. While tensions between the two goals are recognized, choosing one over the other is not an option: peace cannot be restored or built and will not endure unless demands for justice are addressed (Mani, 2002, 2005). Current policies are typically short term and centered upon ending or containing violence, at the expense of issues essential to lasting peace such as the underlying causes of conflict (Tschirgi, 2005). Whether justice is the foundation from or through which peace follows varies, but clearly the two values are interlinked and not opposing. This becomes particularly clear when examining the long-term requirements of durable peace and stability, for example, in the legal justice area. In countries emerging from civil war, peace is impossible without the establishment and implementation of the rule of law. That involves a range of principles, institutions and processes concerned with various aspects of justice and accountability which, in one view, are most effective if established and implemented domestically by the concerned countries themselves (Kritz, 2001). One study highlights, with reference to the work of the International Criminal Tribunal for the former Yugoslavia, how criminal justice contributes to durable peace by punishing inhumane or unjust actions and deterring further atrocities (Akhavan, 1998). Another examines how and when justice can be reconciled with peace through various instruments, mostly associated with retributive and restorative justice (Biggar, 2001). Noting that most countries concerned are impoverished, yet another adds the importance of instruments of distributive justice to address socio-economic inequalities as a cause of conflict (Mani,
2002).
The third answer regards certain aspects of justice as compatible with peace. These are often labelled “forward-looking” in seeking justice not retrospectively, but within future arrangements and institutions (Snyder & Vinjamuri, 2003/04; Zartman & Kremenyuk, 2005). Conversely, the pursuit of backwardlooking notions of justice focusing on rectifying past wrongdoings are seen as detrimental to peace-building. Of course, the three different approaches here outlined overlap. For example, while in the first approach, justice is subordinated to or even eliminated by political constraints and calculations to a certain stage, it is not seen as dispensable in the long run: without justice, including the institutionalization of the rule of law and democracy, peace will not endure (e.g. Hampson, 1996). Thus, peace and justice are not even here, in the final analysis, opposing. The question is instead about timing and sequencing - when and how far each goal is best pursued so as to eventually fulfill both, given political circumstances.