Spoilers of Justice
- Side: 248-261
- Publisert på Idunn: 2013-06-10
- Publisert: 2013-06-10
I. Introduction1I am grateful to Elin Skaar and Eric Wiebelhaus-Brahm for their very useful comments on earlier drafts of this paper. Any errors are mine alone.
What “drives” justice after violent conflict? The pieces in this special issue provide readers with the opportunity to reflect upon a question that perhaps remains under-examined in the transitional justice literature. This is the case despite the proliferation of research on the effects of transitional justice mechanisms; research on the transnational flow of norms and strategies; legal analyses of institutions and trials; and the work of a wide range of advocacy organisations. The introduction and analytic framework by Skaar and Wiebelhaus-Brahm in this issue make the case well that the role of actors as drivers merits greater scrutiny, alongside the role of environment and what they call world time, and that in particular, actors and environment may be mutually constitutive.2Elin Skaar and Eric Wiebelhaus-Brahm, ‘Drivers of Justice after Violent Conflict: An Introduction,’ and ‘How Actors Drive Transitional Justice Processes: A New Analytical Framework,’ in this issue.
What these framing pieces do not do, however, is identify in detail what, or who, may act as the ‘‘brakes’’ on justice, in other words identify the spoilers who are able to halt, slow, alter, or even pervert justice processes; why they do so, and how they design their resistance to such processes. The framework article by Skaar and Wiebelhaus-Brahm does analyse the range of actors who both support and oppose various transitional justice measures, and raises discussions of the interplay between them and also among national, international and local actors. However, the emphasis is, given the focus of this special issue, rightly upon the drivers of transitional justice. Thus, this short think piece seeks to act as a complement and a bookend, so to speak, to the introductory pieces, by focusing on the many possible spoilers of justice.
These actors matter not only because they may impede activities of drivers of justice, but because understanding their goals, incentives, and capacities may help drivers of justice to design their own strategies more effectively, a point to which I return in the final section on implications. The country studies in this special issue, in fact, illustrate in great detail the important counterpart which spoilers may be to drivers, and it is this dialectic which is essential to understanding the shape which justice processes ultimately take in conflict-affected countries and their operation subsequently.
With this emphasis upon spoilers, I do not mean to revisit the well-worn “justice versus peace” debate or to simply observe that actors with a range of social, economic, and political interests can impede justice, but rather to emphasise the constellation of actors which affect decisions about justice. In this short reflection piece, I will develop the concept of spoilers of justice; elaborate upon critical dimensions and characteristics of spoilers, including their vulnerability to charges of serious crimes and their wider goals and incentives, and consider how these may affect their demands, strategies and justice outcomes. I draw upon the case studies in this special issue, as well as other comparative studies including those based upon my own field research over the past decade in countries such as Sierra Leone, Kenya, and Lebanon, before drawing out a few brief implications for policy and future research.
II. The Spoilers of Justice and the Dialectic of Accountability
The introductory and analytic pieces rightly question the relative simplicity of early work utilising the balance of power, domestically, to explain justice outcomes. I agree, though I would say that placing such balance of forces and the preferences of a range of actors alongside environmental and temporal analyses may yield important insights.3Chandra Lekha Sriram, Confronting Past Human Rights Violations: Justice Versus Peace in Times of Transition (Frank Cass 2004) 20–37. However, just as the identities, incentives, and strategies of the drivers of justice are important, so too are those of the spoilers of justice, which are equally complex—not least because many spoilers of justice may tolerate, or even advocate, some degree of accountability and some specific transitional justice mechanisms. There is something of a dialectical process between those who advocate one or more justice processes for a variety of reasons, and those who may resist some or all justice processes, similarly for a variety of reasons. It is important to think, therefore, about what it is that spoilers want, who their constituents are, and what leverage they have, as this may assist mediators in peace agreements, or the drivers of justice themselves to adjust strategies as well as identify potential pitfalls. A clearer identification of the identities and goals and strategies of spoilers might also enable a better understanding of entry points to address their concerns and enable drivers of justice to make greater inroads. I turn first to a brief discussion of the concept of spoilers, imported here from the international security and conflict resolution literature, before modifying it to elaborate upon the concept of a spoiler of justice.
I draw here upon the concept of “spoilers” in peace processes as elaborated by Stephen John Stedman, albeit modifying it significantly.4Stephen John Stedman, ‘Spoiler Problems in Peace Processes,’ (1997) 22 International Security 5. While the concept itself, the categories it developed, the analysis which followed, and its utility for mediators have all come under criticism, I will draw advisedly upon the approach here.5Marie-Jöelle Zahar, ‘SRSG Mediation in Civil Wars: Revisiting the “Spoiler Debate”’ (2010) 16 Global Governance 265, criticises its utility for mediators, and suggests that it is environments rather than actors which should be more carefully profiled. For Stedman, several dimensions of spoilers were to be understood in relation to peace agreements: their position (inside or outside an agreement), the number of spoilers, the “type” of spoilers (which he characterised as limited, greedy, or total) and the locus of the spoiler problem (leaders, followers, or both). This characterisation is fairly simple, and the “type” category in particular lacks finer-grained detail of the specific goals and incentives of spoilers. However, the concept and this approach still serves as a useful starting point for thinking about spoilers in the pursuit of justice. For understanding the nature, preferences, and incentives of a spoiler may, in principle, help to identify incentives which might assist in altering that spoiler’s behaviour. Simply put, those who resist accountability processes are not all violent, intransigent war criminals who object to all justice, and some may be persuaded to accept mechanisms they initially oppose. Many, in fact, may advocate justice, albeit in limited ways or in terms not immediately familiar to advocates of international justice. What follows is my own preliminary attempt to elaborate on a possible characterisation of key dimensions of spoilers of justice, partly following but partly deviating from Stedman’s approach, as suits my own focus on actors who may be political elites, state officials, traditional leaders, state or non-state combatants, or ordinary civilians.
Responsibility (for Serious Offenses)
It may seem too obvious to merit stating, but most spoilers of justice in conflict-affected countries will be responsible (individually or severally, directly or indirectly) for serious offenses. Their resistance will be, therefore, individually based, although some elements of it may also be based upon loyalty (along, for example, lines of fighting forces, ethnic or religious allegiances, or political affiliations relating to groups with responsibility for such offenses). Thus, certain individuals and/or groups may either categorically resist discussions of justice in peace agreements or post-conflict settings, or resist those aspects which may affect them. They may also deploy shifting and devious strategies rather than outright resistance, but seek nonetheless to avoid accountability for serious crimes. Traditionally, fears of accountability were often managed rather simply, so long as one or more sides to an agreement had cause for concern: through a blanket amnesty. However, following guidance from UN mediators that UN-endorsed peace agreements could not include amnesties for the core international crimes, accountability could not explicitly be excluded in peace agreements. However, many agreements are simply silent on the matter, reflecting the preferences of parties to the agreements, or include complex power-sharing arrangements which will allow parties to resist accountability in the post-agreement environment.6Stef Vandeginste and Chandra Lekha Sriram, ‘Power-sharing and Transitional Justice: A Clash of Paradigms?’ (2011) 17 Global Governance 489.
However, in some instances, those with alleged responsibility for serious crimes may still advocate some accountability measures, so long as they are able to shield themselves (or believe themselves able to do so). Thus the Rwandan government has promoted accountability for the 1994 genocide but strenuously resisted international efforts to prosecute alleged war crimes committed by the Rwandan Patriotic Front; Ugandan President Museveni sought to refer only the crimes committed by the Lord’s Resistance Army to the International Criminal Court (ICC) while avoiding prosecutions of members of the national army; and the Special Court for Sierra Leone faced criticism for failing to consider crimes attributed to sitting President Kabbah. Kenyan political elites have engaged in a range of political manoeuvres, ultimately unsuccessfully, to avoid ICC involvement, through promising domestic accountability in a variety of forms.7Stephen Brown with Chandra Lekha Sriram, ‘The Big Fish Won’t Fry Themselves: Accountability for Post-election Violence in Kenya’ (2012) 111 African Affairs 244.
So, not surprisingly, many of those responsible for serious crimes will oppose accountability, but not all will, particularly where they see an opportunity for an adversary to face accountability while shielding themselves. As the article by Sørbø and Ahmed in this issue discusses, the government of Sudan did not simply reject the indictment of President Omar al-Bashir by the ICC. It also sought to prevent international criminal investigations and trials by incorporating international crimes into domestic law, albeit in the process shielding superiors from command responsibility. Both the north-south Comprehensive Peace Agreement of 2005 and the Darfur Peace Agreement of 2006 were silent regarding accountability, and the government ultimately created limited tribunals for Darfur which failed to deal with responsibility for serious international crimes.8Gunnar M Sørbø and Abdel Ghaffar M Ahmed, ‘Justice by Default? Dealing with Accountability Issues in Sudan,’ in this issue. Similarly, a blanket amnesty law was approved by the Afghan Parliament in 2007, covering all parties to the conflict, and tacitly accepted by international actors present on the ground.9Aziz Hakimi and Astri Suhrke, ‘A Poisonous Chalice: The Struggle for Human Rights and Accountability in Afghanistan,’ in this issue.
Finally, some actors without any evident responsibility for serious crimes may object to or undermine accountability processes on a range of other grounds, such as national sovereignty and concerns about the imposition of externally-driven models of justice, or beliefs that justice measures will disrupt reconciliation and peace-building, or the belief that those in a shared identity group are being unfairly targeted. This may have been the case in Mozambique, as the article by Igreja and Skaar outlines, where civil society has been if not resistant to, then not evidently interested in, promotion of accountability mechanisms.10Victor Igreja and Elin Skaar, ‘“A Conflict Does not Rot”: State and Civil Society Responses to Civil War Offences in Mozambique,’ in this issue. Similarly external actors without evident direct responsibility for abuses in a particular country may oppose accountability for a variety of reasons, including local and regional stability as well as fears of regional contagion or demonstration effect of accountability processes. This may or may not explain the resistance from the African Union to the arrest warrant for Sudanese President al-Bashir, and relative support of Kenyan elites in resisting the involvement of the ICC. In Kenya, while a significant majority of the population favours prosecutions before the ICC, surveys also indicate that many do not support the prosecution of co-ethnics, believing their group or groups to be unfairly targeted.11 Brown and Sriram (n 7).
Even international actors and domestic actors who advocated accountability may become, if not spoilers, at best reluctant accepters of justice processes. As the article by Knudsen and Hanafi outlines, external actors, including the United Nations, which previously advocated accountability appear to have lost enthusiasm for the Special Tribunal. In my own interviews in Lebanon, many practitioners, including those working to advocate human rights, rule of law, and accountability, suggested that the tribunal had been set up to ‘criminalize Syria’ and that with the change in administrations in the United States and France, that was no longer a goal and therefore the tribunal had lost favour in those countries as well.12Chandra Lekha Sriram, ‘Unfinished Business: Peacebuilding, Accountability and Rule of Law in Lebanon,’ in Chandra Lekha Sriram, Jemima García-Godos, Johanna Herman and Olga Martin-Ortega (eds), Transitional Justice and Peacebuilding on the Ground: Victims and Excombatants (Routledge 2013); Interviews in Beirut in August 2009 and December 2010, not for attribution.
Relatedly, as Sørbø and Ahmed discuss, international actors may also only be reluctantly tolerant of justice processes where they fear they might create obstacles to other goals. This appears to have been the case with regard to fears that ICC investigations would impede peace negotiations in, and humanitarian access to, Darfur. The authors emphasise the ways in which the concern of some international actors to ensure the implementation of the north-south Comprehensive Peace Agreement, alongside competing agendas of other international actors, limited opportunities to promote accountability for ongoing abuses in Darfur. International peace mediators involved in resolving the north-south conflict may also have assumed that those efforts would address long-running marginalisation of populations and tensions in Darfur.13 Sørbø and Ahmed (n 8). Similarly, while international mediators in Afghanistan supported the creation of a human rights commission, they were not prepared to prioritise accountability, with UN Special Representative Lakhdar Brahimi claiming that, as the article in this issue by Hakimi and Suhrke notes, ‘our responsibility to the living has to take precedence’.14 Hakimi and Suhrke (n 9) 206. At least some of those who voted for the later amnesty bill may have done so not because they feared accountability, but for pragmatic reasons, or in line with rhetoric about honouring those responsible for past jihad. 15Ibid.
Vulnerability (to Charges of Serious Offenses)
Distinct from responsibility, individuals and groups may be more or less vulnerable to charges of serious offenses. These vulnerabilities may be understood as counterparts to, or results of, the factors shaping capabilities outlined by Skaar and Wiebelhaus-Brahm in the framing article, such as national and international preferences and constraints, including but not limited to the strength and decisions of institutions such as domestic, regional and international courts and the strength and preferences of civil society actors. This vulnerability, then, may be predicated on the degree of responsibility, but driven largely by other factors. These may include the individual or group’s political, military, or economic power, or local networks of protection. These may also include their participation (or exclusion) from political or peace processes in which decisions about accountability are being debated. Groups which are excluded from these discussions are more likely to be vulnerable to future charges, or believe themselves to be so, having not been party to the crafting of terms relating to accountability for past abuses, or future rule of law reforms. Further, relative power still matters. Powerful political elites can resist international promotion of justice, as has been the case in Sudan and to a far lesser degree Kenya, and at the same time prevent, or offer limited or sham, domestic justice. Fighting forces can refuse to sign peace agreements without protections; can threaten to or refuse to demobilise; or can threaten to or actually remobilise if their interests are challenged.
However, those inside peace or political processes who feel vulnerable to accountability, either because they have committed atrocities or have fallen out of political favour or fear doing so, may also be strongly resistant to the spectre of justice processes. In this context, individual members of fighting forces (state and non-state), and political elites may be particularly resistant, where they are both responsible, and with the terms of peace agreements and demobilisation processes, find themselves potentially vulnerable to accountability processes.16Robert Muggah (ed), Security and Post-War Reconstruction: Dealing with Fighters in the Aftermath of War (Routledge 2009). Thus for example, as Hakimi and Suhrke discuss, “warlord” actors occupied privileged positions of power and retained access to the use of force, and were able to resist coalitions of human rights advocates promoting accountability in Afghanistan. Former military commanders and religious conservatives, who comprised about three quarters of the male members of the lower house of Parliament, many of whom were alleged by Human Rights Watch to have been responsible for serious abuses, were in a position to block accountability and promote amnesty.17Human Rights Watch, Blood Stained Hands (2005); Hakimi and Suhrke (n 9). They were mobilised, according to Hakimi and Suhrke, by prominent former communists and mujahedin leaders with particular cause for concern about accountability. The United States and other allies involved in the intervention in Afghanistan had earlier blocked discussion of past human rights violations before the UN Human Rights Commission in 2003. While the Afghan Independent Human Rights Commission initially promoted criminal accountability, under pressure from resistant domestic factions and the compromise of President Karzai, it ultimately retreated. Notably, Karzai’s support for the amnesty legislation came despite his earlier stated opposition to amnesty and apparent invulnerability to accusations of serious abuses or prosecutions for any such abuses.18 Hakimi and Suhrke (n 9). While advocates of accountability in Parliament protested the amnesty bill by walking out, this did not prevent its passage. Further, in 2011, President Karzai fired three influential members of the national human rights commission, a move which has been explained as a reaction to a controversial planned conflict mapping report, or retaliation against members for other reasons. In short, drivers of justice were not absent in Afghanistan, but were outmaneuvered by spoilers with significant power.
In Lebanon, an amnesty law passed in 1991 has served to largely shield combatants in all sides to the conflict, many of whom benefited from power-sharing following the Ta’if accord, retaining or obtaining political power, or in the case of Hizbollah largely failing to demobilise and thus maintaining significant military power. Again, however, even those who might not be vulnerable to prosecution by virtue of having relatively clean hands, including many pro-human rights civil society actors, have remained largely silent regarding accountability for past abuses, influenced by and perhaps contributing to what has been termed a culture of amnesia. While not spoilers per se, their reluctance may make the work of drivers of justice more difficult.19Iolanda Jaquemet, ‘Fighting Amnesia: Ways to Uncover the Truth about Lebanon’s Missing’ (2009) 3 International Journal of Transitional Justice 69. The criticism of the one mechanism of accountability, the Special Tribunal for Lebanon, has come from numerous quarters, including both those actually charged by the tribunal as well as a range of actors who consider it to be a political tool. Syria and Syrian officials were originally speculated to be the likely culprits and therefore targets of the tribunal, and there was vocal criticism by Syrian officials and their sometime allies Hezbollah, each apparently vulnerable to prosecution. Meanwhile, even advocates of justice in Lebanon rightly observe that it has a narrow mandate covering a very small number of political assassinations, including that of former Prime Minister Hariri in 2005.20 Sriram, ‘Unfinished Business’ (n 12) 126–129; Are Knudsen and Sari Hanafi, ‘Special Tribunal for Lebanon (STL): Impartial or Imposed International Justice’, in this issue.
Number of (and Interplay Among) Spoilers and Relative Power
Numerous objectors (whether in sheer volume or diversity of groups) to accountability clearly complicate the work of drivers of justice. Numerous individuals and groups with potential responsibility for accountability would in principle appear to have a shared agenda—preventing any accountability. In some instances, this may result in a fairly coherent and robust resistance to any justice processes for past abuses being included in peace agreements or being approved by political actors or effected by the judiciary. In such instances one might expect demands for, and often the passage of, blanket amnesties for all parties, of the type embedded in the 1999 Lomé Peace Agreement for Sierra Leone, or the ultimate amnesty in Mozambique, as discussed by Igreja and Skaar in this issue.21 Igreja and Skaar (n 10). However, in some instances, contesting parties might hope to use justice processes to weaken political adversaries, even as they seek to avoid accountability themselves. This was arguably the case in Uganda, as outlined above, and in Kenya. Political elites have also traded accusations regarding the support of any accountability mechanisms by opponents as essentially being political tactics. In such instances, there may be a confused landscape of opposition to accountability which drivers of justice might seek to exploit.
Goals and Incentives (Social, Political, Economic and Justice)
Regardless of responsibility or vulnerability, individuals and groups may have rather different goals and incentives in relation to accountability. These goals and incentives may be normative or material, and in practice are often mixed and may be difficult to disaggregate. That is to say, the same actor may have a strong set of beliefs which involve opposition to one or more transitional justice mechanisms (because they challenge an individual or group understanding of the conflict, or because they interfere with reconciliation, for example) alongside a strong set of material incentives which underpin opposition to one or more mechanisms (because they will prevent their accessing political power or material resources, for example).
Some individual members (and perhaps some groups) responsible for or accused of serious violations may embrace, or at least accept, some forms of justice. They may do so less out of a commitment to the idea of accountability but rather to achieve social acceptance, or at least to facilitate their return to former communities, while continuing to oppose other forms of justice. This has arguably been the case with former (particularly child) combatants who have undergone traditional or community cleansing or conflict resolution processes in countries such as Sierra Leone and Uganda. At the same time, these same or other former combatant groups have opposed more formal justice processes such as trials for self-interested reasons, but also in some instances for reasons related to beliefs about the validity of the battles in which they engaged. Thus for example members of the Civil Defence Forces (CDF) and their supporters in Sierra Leone strongly opposed the trial of Chief Hinga Norman and other CDF members both in defence of the fighters themselves and as part of a wider normative claim about the heroic actions of the CDF.22Chandra Lekha Sriram, Globalizing Justice forMass Atrocities (Routledge 2005) 101– 105.
Groups and/or leaders with political aspirations, particularly armed groups seeking to transform into political parties, may seek to demonstrate their rule of law bona fides through embracing, or at least accepting, some accountability measures. Similarly, groups which fought politically or militarily on broad justice-seeking grounds, may find it more difficult (although hardly impossible) to justify an anti-accountability stance, at least if they are seeking to build political constituencies. This will be the case whether their stated justice agenda emphasised previous human rights abuses, corruption and poor governance and abusive institutions, or focused upon other grievances. At the same time, individuals and groups may have economic incentives to resist accountability, where restorative or reparative options may be costly, for example. Alternatively, traditional authorities who have presided over a range of local conflict resolution/justice processes, garnering fees and maintaining their social status in the process, may resist the prospect of other actors subverting their roles.23Deval Desai, Deborah Isser and Michael Woolcock, ‘Rethinking Justice Reform in Fragile and Conflict-Affected States: The Capacity of Development Agencies and Lessons from Liberia and Afghanistan’ (2012) 3 The World Bank Legal Review 241, 250. These actors, and their incentives and claims regarding their opposition to specific mechanisms of transitional justice, may vacillate between normative and material. Again, they may not oppose all accountability mechanisms, but take a stand against those which particularly challenge these claims.
Ostensibly normative concerns, which may be underpinned by other concerns and interests, may come into play with regard to decisions about justice, and be evidenced in strategies deployed by spoilers of justice. These include concerns about promotion of reconciliation, and more specifically the promotion of peace agreements. Thus the government of Mozambique, as Igreja and Skaar outline, offered amnesty to the rebel group Renamo both to induce elite rebel participation in a peace agreement, and to demoralise foot soldiers and weaken the group. Interestingly, there was apparent ambiguity about the original terms of the amnesty regarding coverage of crimes committed by government agents, resolved with a widening of language. Notably, the resistance to accountability thus began on behalf of the opposition by the government, for strategic reasons, widened to cover a blanket amnesty and effective silence about accountability. In Darfur, the situation was even more complicated: while international mediators accepted peace agreements which were silent on questions of accountability in an attempt to promote peace, the UN Security Council referred the situation to the ICC. However, given government intransigence, opportunities for accountability promotion by civil society have been limited.
It surely matters who is resisting accountability measures, and not simply because of their place in a competition for relative power. Rather, it also matters what status and prestige those who resist accountability mechanisms have. It matters, in short, whether they are leaders with a clear constituency, or elites without a clear constituency, at least as regards the question of accountability. This is not only a matter of their relative strength vis-á- vis drivers of justice, but rather also relates to the types of appeals that they may make. That is to say, they may be able to make strong appeals regarding the importance of their remaining in power for reasons of national security, or economic prosperity, but find limited support in their resistance to accountability, particularly where they, but not larger segments of the population, face accountability. Alternatively relatively weak leaders may find they have a broad constituency supporting constraints on accountability, perhaps for many of the reasons outlined in the discussions above on vulnerability, number and interplay among spoilers. The degree of support which leaders garner may also be shaped by their relative prestige and respect: if they are viewed as having failed in their roles (as political or military leaders, for example), they may hold less sway in debates, even where they retain significant political or military power. Evidently self-interested efforts to shield themselves from accountability may also harm their prestige. Conversely, there may in principle be situations where relatively low-level individuals object to accountability mechanisms, as perhaps with ex-combatants, but also with civil society groups. Again, this is not simply a matter of their relative power, but rather of the influence they may hold in specific communities (whether as respected war heroes, civic leaders, traditional leaders, or feared war criminals, to oversimplify things).
Leaders may seek to shield only themselves, or rather be the only ones facing clear threats of accountability, as where relevant prosecutorial mechanisms are mandated only to pursue those with the greatest accountability. External actors with their own agendas may also advocate amnesty, as South Africa did with Mozambique in 1984, according to the article by Igreja and Skaar.24 Igreja and Skaar (n 10). In such instances, at least two things may occur. First, those who are directly threatened with accountability measures become more embattled and intransigent (eg President al-Bashir of Sudan), in which case stonewalling or evasive measures are most likely. They may also be more likely to form coalitions with traditional adversaries who also face accountability, as has been the case with Kenyatta and Ruto in Kenya. In such situations, there may be relatively few entry points for drivers of justice to pursue even limited measures. Second, however, in some instances, the taint of accusations of responsibility for serious crimes may help to separate leaders from their supporters, who may come to view the leaders as criminal, or at least as too costly to support. In such instances, there may be greater scope for drivers of justice to promote justice measures, perhaps through engaging civil society or any responsive state institutions.
In other instances, however, it may be society more generally, or a specific sector of civil society, which opposes, or at least deliberately fails to advocate, accountability measures. In Mozambique, as the article by Igreja and Skaar discusses, it was not only the government which proposed amnesty, but also civil society which failed to promote accountability mechanisms.25Ibid. They may do so out of fear of retribution from specific sectors, out of obedience to state and legal dictates, out of a belief that justice measures will disrupt or prevent reconciliation, or out of attachment to a particular community which may be vulnerable to accountability mechanisms. They may even do so because they believe that national pride or sovereignty is at stake.
Finally, it obviously matters whether those who resist justice have any standing, respect, or legitimacy, regardless of their official status. Those who cynically resist justice for selfish reasons may find it difficult to persuade others to agree with them, even if they invoke reconciliation or more nationalistic arguments. Of course, this is often complicated by patterns of allegiance. As discussed above, in Kenya the majority of the population supports ICC prosecutions, but divide along ethnic and party lines in some instances with respect to the specific accused persons. Alternatively, individuals with high moral standing and perhaps relatively little vulnerability, as was arguably the case for persons such as Archbishop Tutu or former-President Mandela in South Africa, may argue more credibly for limited accountability or amnesty. In Lebanon, the standing of Hizbollah clearly varies by community, but the organisation’s resistance to the Special Tribunal draws some support through its characterisation of the tribunal as a western imposition, and of it as being of interest largely to one political faction in the country, that associated with the assassinated Hariri and his son.
A number of implications may be gleaned from this discussion, and from the articles in this special issue more generally. The first, which may seem evident, is the importance of not only paying attention to potential and actual spoilers of justice, but of discerning key characteristics of these spoilers which shape their goals and preferences in transitions, and in relation to transitional justice generally and to specific transitional justice mechanisms. Thus, drivers of justice interested in engaging these potential spoilers may wish to carefully examine, among others, the five sets of characteristics I have identified here: responsibility, vulnerability, number/relative power, goals and incentives, and status/prestige. Examining these features may enable drivers to understand better what type of spoiler(s) they are engaging, their demands, and possible entry points for promoting some forms of transitional justice with the support, or at least tacit acceptance, of those spoilers. These features, of course, may change over time, altering the incentives and behaviour of spoilers: for instance, powerful perpetrators in political or military groups may pass away, retire, or lose prestige. Second, spoilers of justice run the gamut, from predictable elites and ex-combatants who have committed punishable crimes, to international donors and influential neighbours, civil society actors, traditional leaders, and sectors of the populace who coalesce around a particular identity which they defend against accountability measures.
Several key points flow from this, which may be of interest for drivers of justice who seek to engage spoilers and alter or work around their preferences. Spoilers object to accountability for a wide variety of reasons, and their preferences need to be understood and engaged. Those who object to transitional justice because they directly fear accountability, for example, may have their fears assuaged if they understand that planned accountability strategies will target a limited set of individuals. Those who object because they believe their identity group is being targeted may otherwise hold pro-accountability views which can be engaged to alter their position(s).
Further, spoilers do not always object to all forms of transitional justice, but rather have specific objections to specific transitional justice measures. Thus in some instances, those with very strong objections to prosecutions may be more amenable to commissions of inquiry or traditional justice processes which, in their view, afford them an opportunity to return to their communities. Those who oppose international trials may have fewer objections to domestic trials, or vice versa. Drivers of justice would do well to observe these preferences and identify entry points enabling limited justice processes, even if the overall justice mechanisms and outcomes are in their view suboptimal.
Drivers of justice would, then, benefit from such a close analysis, as many of the country studies here offer, of the core actors in a given situation, which might in turn help to support more finely-tuned strategies for the promotion of justice. Here, further research might be pursued which could help develop further analysis, including through a more rigorous typology of spoilers of justice, of their preferences relating to justice generally and to specific mechanisms, of their strategies and capacities to resist justice, and of their default or compromise positions. Such new research, beyond the scope of this short essay, would inform not only scholarship on transitional justice actors, mechanisms and strategies, but might also inform drivers of justice as they design their strategies.
|1||I am grateful to Elin Skaar and Eric Wiebelhaus-Brahm for their very useful comments on earlier drafts of this paper. Any errors are mine alone.|
|2||Elin Skaar and Eric Wiebelhaus-Brahm, ‘Drivers of Justice after Violent Conflict: An Introduction,’ and ‘How Actors Drive Transitional Justice Processes: A New Analytical Framework,’ in this issue.|
|3||Chandra Lekha Sriram, Confronting Past Human Rights Violations: Justice Versus Peace in Times of Transition (Frank Cass 2004) 20–37.|
|4||Stephen John Stedman, ‘Spoiler Problems in Peace Processes,’ (1997) 22 International Security 5.|
|5||Marie-Jöelle Zahar, ‘SRSG Mediation in Civil Wars: Revisiting the “Spoiler Debate”’ (2010) 16 Global Governance 265, criticises its utility for mediators, and suggests that it is environments rather than actors which should be more carefully profiled.|
|6||Stef Vandeginste and Chandra Lekha Sriram, ‘Power-sharing and Transitional Justice: A Clash of Paradigms?’ (2011) 17 Global Governance 489.|
|7||Stephen Brown with Chandra Lekha Sriram, ‘The Big Fish Won’t Fry Themselves: Accountability for Post-election Violence in Kenya’ (2012) 111 African Affairs 244.|
|8||Gunnar M Sørbø and Abdel Ghaffar M Ahmed, ‘Justice by Default? Dealing with Accountability Issues in Sudan,’ in this issue.|
|9||Aziz Hakimi and Astri Suhrke, ‘A Poisonous Chalice: The Struggle for Human Rights and Accountability in Afghanistan,’ in this issue.|
|10||Victor Igreja and Elin Skaar, ‘“A Conflict Does not Rot”: State and Civil Society Responses to Civil War Offences in Mozambique,’ in this issue.|
|11||Brown and Sriram (n 7).|
|12||Chandra Lekha Sriram, ‘Unfinished Business: Peacebuilding, Accountability and Rule of Law in Lebanon,’ in Chandra Lekha Sriram, Jemima García-Godos, Johanna Herman and Olga Martin-Ortega (eds), Transitional Justice and Peacebuilding on the Ground: Victims and Excombatants (Routledge 2013); Interviews in Beirut in August 2009 and December 2010, not for attribution.|
|13||Sørbø and Ahmed (n 8).|
|14||Hakimi and Suhrke (n 9) 206.|
|16||Robert Muggah (ed), Security and Post-War Reconstruction: Dealing with Fighters in the Aftermath of War (Routledge 2009).|
|17||Human Rights Watch, Blood Stained Hands (2005); Hakimi and Suhrke (n 9).|
|18||Hakimi and Suhrke (n 9).|
|19||Iolanda Jaquemet, ‘Fighting Amnesia: Ways to Uncover the Truth about Lebanon’s Missing’ (2009) 3 International Journal of Transitional Justice 69.|
|20||Sriram, ‘Unfinished Business’ (n 12) 126–129; Are Knudsen and Sari Hanafi, ‘Special Tribunal for Lebanon (STL): Impartial or Imposed International Justice’, in this issue.|
|21||Igreja and Skaar (n 10).|
|22||Chandra Lekha Sriram, Globalizing Justice forMass Atrocities (Routledge 2005) 101– 105.|
|23||Deval Desai, Deborah Isser and Michael Woolcock, ‘Rethinking Justice Reform in Fragile and Conflict-Affected States: The Capacity of Development Agencies and Lessons from Liberia and Afghanistan’ (2012) 3 The World Bank Legal Review 241, 250.|
|24||Igreja and Skaar (n 10).|