A Critical Analysis of the Strengths and Limitations of the Responsibility to Protect in the Central African Republic Between 2013-2017

Claudia Broadhead, University of Leeds

Claudia Broadhead graduated from Leeds University in 2018 with a First-Class Honours in English and History of Art. She currently works in Refugee Support at the British Red Cross.

Abstract

This paper will discuss the material implications of the UN Responsibility to Protect in the Central African Republic (CAR), a country which since March 2013 has seen ongoing internal conflict. The paper concentrates on the international community’s response to mass atrocities in CAR from 2013 until 2017. The evocation of R2P as a response to the situation on the ground in CAR has resulted in consensual intervention by the EU and UN. This essay will focus on three dimensions of the R2P norm: its shift from a Westphalian to a liberal interpretation of sovereignty, its nature as a tool that is ultimately driven by international political will, and the role of R2P to facilitate support between the international community and the state’s governing body. The paper will use these three facets to evaluate the success of R2P in CAR and concludes that the limitations of the UN norm outweigh its strengths as a tool to prevent and protect mass atrocity crimes.

The Central African Republic (CAR) has seen an eruption in renewed violence and ongoing atrocities since March 2013, with its situation further deteriorating from late 2016. In brief, the crisis emerged with the predominantly Muslim rebel group Séléka fighting to overthrow the corrupt Bozizé government, which resulted in the formation and subsequent retaliation by the mostly Christian anti-balaka militias. Both rebel groups, as well as armed forces and civilian mobs have committed mass atrocity crimes (UNSC Resolution 2134, 2014, p.1). The instrumentalisation of religion and ethnicity have been central to the human rights violations, however, it is imperative to emphasize that the crisis is far more complex, and fundamentally propelled by political groundings (Global Centre for the Responsibility to Protect, 2014). The international community has repeatedly responded to the violence in CAR: France has intervened multiple times since CAR’s independence in 1960, and in April 2014 the United Nations Multidimensional Integrated Stabilization Mission in the Central African Republic (MINUSCA) was established as the third UN mission in 20 years (Cinq-Mars, 2015, p. 7). In 2005, the Responsibility to Protect (R2P) was endorsed into the World Summit Outcome Document as a global norm, following its introduction as a principle in the 2001 International Commission on Intervention and State Sovereignty (ICISS) report (ICISS). At the heart of R2P, there are three pillars of responsibility: pillar one stipulates that foremost it is the duty of the state to protect its population from genocide, war crimes, crimes against humanity and ethnic cleansing; pillar two indicates that if a state fails, it is the responsibility of the international community to assist; and pillar three specifies that if peaceful means are inadequate and the state is manifestly failing to protecting its population, the international community must take action in a ‘timely and decisive manner’ in accordance with the UN Charter (United Nations General Assembly, 2005, p. 30).  The UN Security Council (UNSC) has invoked R2P 18 times concerning CAR since R2P’s adoption in 2005 through UN Resolutions that emphasise the commitment of the international community to resolving the country’s conflict.

This essay will argue that despite ongoing international efforts to protect populations from widespread human rights violations in CAR, the limitations of R2P outweigh its strengths. The argument will develop by looking firstly at how R2P’s reconfiguration of sovereignty gives states the opportunity to discuss and act, but how this universal shift of sovereignty has failed to be effective in CAR. Secondly, once this opportunity to help has been created, R2P is flawed in its dependence on political will; the lack of vested interest in CAR has led to slow missions that fail to address the systematic and root issues of the human rights abuses. Thirdly, once states do commit to investing in the protection of a threatened population, R2P instructs the international community to assist, in the case of CAR, a corrupt and problematic government, and gives unprecedented power to peacekeepers that is poorly monitored and has led to bad practice on the ground.

The impact of R2P’s reconfiguration of sovereignty in CAR

First proposed in the 2001 ICISS report, utmost sovereignty under the first pillar of R2P was redefined as a conditional right reconfiguring Westphalian sovereignty which dictates the absolute right of state leaders to control their own territory, condemning outside interference on all levels (Cohen and Deng, 2016, p. 88). This shift of the notion of sovereignty to a more liberal orientation can be regarded as a key strength of the norm in reference to CAR because it allows states to discuss and act in situations of widespread human rights violations. Although the report emphasised the value of sovereignty, it stipulated that states had a responsibility to protect their populations and under specific circumstances of state failings to do so, the principle of non-intervention could be overruled (Glanville, 2016, p. 160). In CAR, ‘the successive ruling elites and their entourage never demonstrated any sense of responsibility or accountability towards the populations they were meant to administer’ (UNSC, 2015, p. 27). Widespread human rights violations had been occurring in CAR for a prolonged time, and the failure of the state to lead and take responsibility for its population is a well-recognised cause of the conflict (UNSC, 2015, p. 28). The reconceptualization of sovereignty has led to the international community playing a role in efforts to alleviate the heinous conflict. R2P is therefore a progressive concept in that it encourages states to discuss human rights atrocities across the world, reshaping international relations to prioritise populations threatened by mass atrocity crimes. Jennifer Welsh (2013, p. 368) argues that R2P has been a success because it has altered state behaviour to ‘consider a real or imminent crisis’. Although norm cascade theory set out by Finnermore and Sikkink (1998) is problematic in its assertions, it is useful as a starting point because Welsh (2013, p. 379) contends that R2P has passed its emergence, and is now in the phase of ‘cascade’ and ‘diffusion’ whereby sates are beginning to ‘consistently act on the norm’s precepts’. With reference to CAR, this is evidenced by the 18 UN Resolutions that have been invoked since 2005 in response to the crisis. The recalling of resolutions to support the population of CAR demonstrates how the international community is beginning to consult the norm as a method of international responsibility concerning the four crimes. States are therefore beginning to adopt R2P as worldwide diplomatic language which ensures mass atrocity crimes are considered and discussed, leading to supportive and consented state intervention in extreme situations of widespread human rights violations, as seen in CAR.

In contestation, the liberal shift of sovereignty from its traditional sense under R2P threatens the unconditional right of states, surfacing the threat of interference by international actors. The African Union (AU) is formed of states committed to traditional sovereignty meaning the language of R2P has not been widely adopted by the regional organisation; R2P as a universal principle is therefore flawed in its failure to accommodate for the unique states in Africa (Aning and Atuobi, 2011, p. 16). The AU is an essential component of effective multilateral support. However, due to R2P’s insistence on conditional state sovereignty, the AU has failed to appropriately encourage and assist CAR when mass atrocity crimes have occurred, as articulated by pillar II. Regional organisations are a fundamental aspect of translating R2P practically onto the ground, particularly due to the organisation having an understanding of the dynamics and relations in the area they act within (Aning and Okyere, 2016, p. 355). Article 4(g) of the AU Constitutive Act is a non-interference clause, ‘virtually turning R2P on its head by approaching protection from the vantage point of state regimes rather than the potential victims’ (Aning and Okyere, 2016, p. 363). Therefore, R2P’s reconfiguration of sovereignty is limited in the context of CAR in that the non-conformist states have impacted the role of the AU as an assisting organisation in response to the occurrence of the four crimes in CAR. Despite the AU’s authorisation of the deployment of troops to the African-led International Support Mission to CAR (MISCA) in July 2013, the operation failed to provide sufficient support to protect CAR’s populations from mass atrocity crimes that have continued to exist (Cinq-Mars, 2015, p. 13). A 2014 statement by the UN Secretary-General (Ki-Moon, 2014a) asserted that the 3,500 assigned AU troops were not sufficient to implement MISCA’s mandate. We can identify this as a lack of commitment by the AU to intervene in CAR, compromising the strength of R2P as a globalised norm. The UNSG (Ki-Moon, 2011a, p. 3) notes that R2P should ‘respect institutional and cultural difference from region to region’, while advocates of the global norm emphasise the pragmatic step at the heart of R2P in that it is invoked on a ‘case-by-case’ approach. Critiquing this however, we can use Adejo’s (2001, p. 136) analysis to note that due to old norms of absolute sovereignty, non-interference continues to exist within the institutional framework which has allowed state failings to obstruct AU intervention. Despite the deployment of AU troops to MISCA, their effectiveness was poor due to the insufficient size of the group which suggests the AU’s unwillingness to engage fully with R2P, and thus the mission has had very limited success in protecting threatened populations in CAR.

The failure of R2P to protect a country which has little international interest 

Despite Welsh’s (2013) nuanced approach that celebrates R2P as a norm that has become integrated into international diplomatic language, close analysis of the impact R2P has had in response to the emergence of the four crimes in CAR reveals several limitations of the norm. Effective international assistance through prevention strategies under pillar II are ultimately dependent on the political will of states, particularly the state interests of the Security Council’s permanent five members (P5) (Hehir, 2015, p. 85). This critique of the global norm can be applied to CAR which has been described as a ‘phantom state’ (International Crisis Group, 2007). Cinq-Mars argues that the lack of exploitable resources in the country and the absence of ‘any meaningful institutional capacity’ has led to CAR being disregarded as a priority by the international community (2015, p. 6). Furthermore, due to the structure of the UNSC and the overriding power of the P5 in international decisions, in practice R2P is a concept whose power is vested in the Security Council (Davies and Bellamy, 2014). Aidan Hehir (2017, p. 335) challenges Welsh’s (2013) support of R2P as an integrated norm, instead asserting that the norm’s ‘impact on the behaviour of states has been limited’. R2P has not shifted state mind-sets because international response is fuelled by state interests whereby manipulation of the norm occurs for selfish means (Kowert and Legro, 1996, p. 493). States are given the ability to intervene; but this can lead to intervention for vested interests, or increased violence on the ground and bad practice of the interveners. The Geneva Peacekeeping Platform, an international centre that links experts with peacebuilding actors and facilitates discussion to drive greater knowledge and understanding of peacekeeping issues, reinforces this in relation to CAR, explaining that one factor of the failed peacebuilding efforts is the ‘overly negative and inherently flawed’ perception of the country (Akasaki et. al, 2015). Cinq-Mars (2015, p. 7) concludes that this view of CAR led to ‘reactive and belated’ responses. ‘Reactive’ demonstrates that with no political desire or ulterior motive, the international community prioritised short-term alleviation over the cost of tackling the root causes of the conflict. ‘Belated’ aligns with Hehir’s argument that R2P is a utopian norm because when states are unwilling to respond in a ‘timely’ manner R2P prevents the successful stabilisation of a failing state (Hehir, 2017, p. 340-41). Cinq-Mars (2015, p. 12) interviewed current and former UN staff who described CAR as a ‘punishment posting’ and ‘parking lot of the UN’, suggesting staff are abandoned there while the UN focuses on more important work. Turnover rates of UN staff in CAR are exceedingly high. The absence of exploitable resources and lack of a strong relationship between CAR and any members of the P5 has ultimately shaped the R2P response which has been inadequate in protecting civilians from mass human rights violations (Hehir, 2015, p. 93). CAR being regarded as a forgotten lost cause allows us to conclude with Hehir’s argument that the efficacy of R2P is ‘heavily dependent on political will, as opposed to legal procedure and judicial oversights’ (Hehir, 2015, p. 93).

The failure of the EU and UN to implement prevention and respond to credible early warnings

The lack of political will of states to fully invest in CAR can be identified by the reported failure of the UN and EU to respond to credible early warning systems and implement effective prevention strategies in CAR, and thus R2P has failed to efficiently protect the country’s population (Bellamy and Lupel, 2015, p. 2).  Although atrocity crimes are determined by a multitude of variable factors and conditions making them demanding and strenuous to prevent, prevention strategies including building national resilience, promoting human rights, and adopting targeted preventative measures have been outlined in the UNSG’s 2013 report on prevention and thus enshrined in pillar I and II of R2P (Ki-Moon, 2013). As Simon Adams (2013, p. 1), the Director of the Global Centre for R2P declares, ‘R2P is primarily a preventive doctrine’. Although Hehir (2012, p. 87) argues that the shift of emphasis from intervention in the ICISS report (2001) to prevention in the World Summit Outcome Document (2005) indicates R2P’s failure to impact law, procedure and regulating institutions, it is widely accepted that implementing preventive strategies has resulted in successful aversion from the four crimes (McLoughlin, 2014, p. 414). The UNSG’s 2013 report on prevention noted that early warning mechanisms to alert decision makers to situations that were on the brink of escalation were a vital aspect of atrocity prevention measures (Ki-Moon, 2013, p. 14). With regard to CAR, it was already in April 2013 when public calls were made by XXX for Muslim civilians to be wiped out (Cinq-Mars, 2015, p. 16) and in August 2017 the Under-Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator made a statement that concluded the early warning signs of genocide were visible and action must be taken immediately (O’Brian, 2017). The UN and EU have been heavily criticised for their slow and insufficient response to the rise of widespread human rights violations in CAR (Bellamy and Lupel, 2015, p. 2). The lack of political will to whole heartedly respond to the crisis is a reason for the insufficiency of the international community. Following the December 2013 attacks and warnings of ethnic cleansing, crimes against humanity and war crimes, EU ministers agreed in January 2014 to deploy an EU military operation (EUFOR RCA) in CAR (Council of the European Union, 2014). To ensure its rapid operation, EUFOR RCA was approved in UN Resolution 2134 (UNSC Resolution 2134, 2014, p.3). However, three months later, in March 2014, the already delayed EUFOR RCA mission still required another 500 troops for its deployment (Global Centre for the Responsibility to Protect, 2013). On the 9th April, a further three weeks later, troops from EUFOR RCA arrived in Bangui and an initial group of 55 begin patrolling (Global Centre for the Responsibility to Protect, 2013). Despite the grave warnings of widespread human rights violations from organisations on the ground in CAR, R2P’s lack of legal binding and dependence on political will has meant the UN and EU have been ineffective at translating agreements into practical action. The delay of deployment in the context of the crisis was shockingly high as without an ulterior motive troops were unlikely to be deployed to CAR. The EUFOR RCA mission was initially restricted to a mere six months, and it was centred in the capital of the country with no troops operating in other critically turbulent areas, therefore R2P’s dependence on political will has allowed conflict to intensify and lives to be lost.

The failure of R2P to address the structural underlying causes of instability in CAR

R2P has allowed the international community to provide short-term direct assistance and stabilisation but has failed to address the structural underlying causes of the occurrence of the four crimes. Again, the lack of political will of states to fully invest in CAR that has led to this. This can be illustrated through events in December 2013 where the UN pulled into action following an outbreak of violence, and although further mass killings were initially supressed, the intervention had short-lived preventative benefits but actually intensified inter-communal violence in the long-term (Cinq-Mars, 2015, p. 15). Early December 2013 saw widespread human rights abuses occur as anti-Balaka militias attacked former Séléka forces in Bangui, killing an estimated 1,000 people in an ethno-religious cleansing mission (Global Centre for the Responsibility to Protect, 2013). This was instantaneously followed by the UNSC adoption of Resolution 2127 authorising MISCA and the emergency deployment of French troops to take ‘all necessary measures’ to contribute to the ‘protection of civilians and the restoration of security and public order’ (UNSC Resolution 2127, 2013, p. 7). Unintentionally, international focus to disarm former Séléka rebels placed anti-balaka fighters in a position of superiority resulting in the forced displacement of Muslim civilians by anti-balaka in Bangui and western CAR (Øen, 2014, p. 32). The UN was heavily criticised for its insufficient role in the crisis, once source being the international humanitarian organisation Médecins Sans Frontières who released an open letter to the UN humanitarian system expressing its ‘deep concern about the unacceptable performance’ of UN agencies in CAR (Global Centre for the Responsibility to Protect, 2013). The peace missions deployed to CAR were criticised by Cinq-Mars (2015) for lacking the capacity to interrupt violence due to ill-equipped, under-trained and insufficiently supported operations. The structure of R2P as a non-legally binding concept that relies on state responsibility and voluntary assistance has meant that efforts in CAR have been fundamentally reactive, but not thorough investments to address the underlying causes of the conflict. Unfortunately, the international community has intervened in CAR under R2P in a very surface fashion which has lacked capacity, exacerbating violence in some regions and failing to structurally prevent widespread human rights violations due to the absence of addressing the root issues of the conflict.

The role Pillar II has had in supporting CAR’s corrupt government and giving unprecedented power to UN peacekeepers

Transcending beyond political will, even if states do commit to preventing and protecting the population from mass atrocity crimes, pillar II instructs the international community to support CAR’s government, who have been fundamental in fuelling the crisis and have taken part in widespread human rights violations themselves. Pillar II stipulates ‘the international community should as appropriate, encourage and help states to exercise their responsibility and support the United Nations in establishing an early warning system’ (United Nations General Assembly, 2005, p. 30). Its aim is to ensure international assistance helps a failing state to build the resilience to protect its population from the four crimes. In the 2009 UNSG report ‘Implementing the Responsibility to Protect’, Ban Ki-Moon claimed that pillar II is an ‘active partnership between the international community and the State’ and broke down the pillar into three categories: encouragement, capacity building, and assisting States (Ki-Moon, 2009, p. 15). Regarding the third dimension, Gallagher highlights how if those in power are the reason for the lack of ‘accountable political institutions, respect for the rule of law and equal access to justice, and mechanisms for the fair and transparent management of economic resources and assets’, then international assistance may legitimise those responsible for the crisis (Gallagher, 2009, p. 1274). Gallagher’s critique can be applied to the CAR case because it is the state who has played a leading role in fuelling conflict and committing human rights violations, and therefore it is controversial and highly problematic that the international community work side by side with CAR’s government. CAR has failed to be effectively governed by legitimate state authority since its independence in 1960. Bozizé, who ruled from 2003 to 2013, controlled a horrifically corrupt government, holding all the power and marginalising the northern and eastern regions of the country (Cinq-Mars, 2015, p. 6). Ostracising communities outside Bangui led to the rise of anti-government rebel fighters who are legitimately furious (Cinq-Mars, 2015, p. 6). Furthermore, Louisa Lombard (2014) notes that Bozizé engaged in the politicisation of religion which intensified tensions between religious groups, providing further ground for conflict. However, through the October 2013 UNSC Resolution 2088 and MINUSCA’s attempt to establish a legal framework, we can identify two distinct ways that the UN has assisted and ultimately legitimised a government that has manipulated relations and established hierarchy. Firstly, Resolution 2088 both ‘Urges the Government of the Central African Republic to ensure that freedom of expression and assembly, including for the opposition parties, as well as the rule of law are fully respected’, and ‘Demands that all armed groups cooperate with the Government in the disarmament, demobilization and reintegration process’ (UNSC Resolution 2088, 2013, p.3). The UN is encouraging CAR’s government to oversee commitment to human rights and law by all groups, and instructing armed groups to actively work with the government, legitimising it as an actor which holds power and control. Secondly, with the support of MINUSCA there has been efforts to re-establish the court system, yet the UNSG emphasises the rebel group individuals convicted, suggesting elite figures in the corrupt CAR state have continued unscathed (Ki-Moon, 2018, p. 7). Rebel armed groups were responsible for 33% of all human rights abuses, yet the national police and State led military are responsible for 25% of violations (Ki-Moon, 2018, p. 9). Furthermore, in April 2014, Russia and China blocked a proposal by the United States and France at the UNSC to impose targeted sanctions against three individuals, including former President Bozizé (Charbonneau and Nichols, 2014). International assistance in the way of establishing courts and prison systems, although fundamental in establishing a democratic and well-governed State, legitimises the mass human rights violations of the State by majoritively condemning the rebel groups. We can therefore critique R2P as a norm that encourages the international community to aid state’s that are key players in the cause of conflict.

Once states commit to supportive military intervention in the form of peacekeeping, which aims to protect populations at risk, R2P provides unprecedented power to peacekeepers and does not enshrine rigid training and monitoring, which has led to power being misused and abused, and ultimately R2P has created opportunities for bad practice on the ground in CAR.  Prevention by definition ‘involves a bi-lateral dynamic’ (Hehir 2015, p. 91), but accusations of sexual abuse by peacekeepers has hugely weakened the reputation of the military operations (Arieff, 2014).  Hehir’s work on prevention informs us that in the case of CAR the groups planning the attack must be dissuaded by the international community in order for prevention to be successful (2015, p. 91). However, there have been repeated accusations of sexual abuse, many cases involving children, by troops associated with French, AU and UN intervention which has ruptured any sense of trust or working relationships between the armed groups and the peacekeepers. An October 2017 Amnesty International news article reported that UN peacekeepers in Bambari drugged and sexually assaulted a young woman in CAR (Amnesty International News, 2017). The atrocious actions of the UN peacekeeper in this specific case were taken to court and the victim was restored with some form of justice (Amnesty International News, 2017). However, Amnesty (2017) reports that no other allegations of rape involving UN troops, despite the ‘continuous stream of well-documented’ claims, have been criminally investigated. The lack of a strategic framework and rigid monitoring following international assistance and intervention on the ground has allowed peacekeepers to heinously misuse their powerː despite training modules and mobile training teams being used to ensure peacekeepers understand their role in protecting civilians, this is evidently not enough (Ki-Moon, 2014b, p. 17). The UNSG’s 2014 report emphasises ways to identify at risk groups and increase protection capacity for vulnerable women, although this progress is vital, it fails to acknowledge the continuous allegations against peacekeepers themselves and how this can be combatted in the future (Ki-Moon, 2014b, p. 17). The misuse of power by certain troops has been a contributing factor to the failure of the international community to protect CAR’s populations from the four crimes. R2P is thus limited in that it does not ensure rigid training and monitoring of practice on the ground, allowing assault to occur which has jeopardised the success of prevention and restoration missions in CAR.

Conclusion

R2P is advocated for by scholars as a progressive norm that has encouraged conversation about human rights atrocities and has reshaped thought to further prioritise the lives of mass atrocity victims in international relations. However, this article has argued that in the context of the ongoing crisis in CAR, the limitations of R2P outweigh its strengths. There are two key strands of critique that this essay has negotiated, one in reference to the wording of the norm, and another in relation to how R2P is put into practice and interpreted. On one hand, the R2P discourse reconceptualises sovereignty in pillar I and instructs the international community to assist the manifestly failing state in pillar II. These stipulations have meant the African Union has had minimal input in restoring CAR due to its framework tied to legalities of traditional sovereignty. Furthermore, the rest of the international community has been involved in supporting and actively assisting the corrupt CAR government which is criticised for being the catalyst of the entire crisis. On the other hand, the non-legally binding norm has been able to be exploited in its invocation by states and their troops. R2P is dependent on the political will of states to offer their resources and services to protect populations threatened by the four crimes, it is therefore able to be abused in situations of state interest or allied relations which has led to the crisis in CAR being insufficiently responded to by the international community. On a more granular level, the authority that the peacekeepers have has been horrifically misused due to the absence of rigid training and monitoring efforts, which has weakened the opportunity for peacebuilding relations between international troops and local armed groups. Ultimately, R2P creates opportunities for states to help populations threatened by genocide, war crimes, crimes against humanity and ethnic cleansing. Nevertheless, its nature as non-legally binding allows states to act most effectively and efficiently in cases of vested interest, while once states do commit to assist, R2P threatens to further violence and legitimise bad practice.

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How Gendered Experiences Shape Processes and Practices of War and Peace

Jennifer Amy Leigh, The University of Law, UK

Jennifer is currently a full-time Civil Servant and part-time Graduate Diploma in Law student at The University of Law. Previously, she graduated from The University of Manchester with a MA in Politics and from the University of Liverpool with a BA Honours in English Language and Literature. Jennifer has studied abroad at Xi’an Jiaotong-Liverpool University in Suzhou, China, and IILM in Delhi, India. 

Abstract

This article considers the gendered nature of conflict. It argues that war is not a patriarchal preserve and that gendered experience extends conflict beyond its usual boundaries. Women are shown to be affected by war, as the term is broadly understood, in a variety of ways, although the full extent of female experiences has not yet been assimilated into conflict discourse. It shows that the usual demarcations between war and peace do not reflect gendered experience, and the examples of the Congo and Korea are used to illustrate this point. The value of social constructivism in providing a theoretical framework for gendered experience is war is also considered, with reference to female experiences in World War One. The example of South Africa’s Truth and Reconciliation Commission is examined in even greater detail, particularly in respect to women’s experience of violence, sexual or otherwise, and their unwillingness to discuss it. Attention is given to the role of peace, which is defined not as the absence of war, but as the absence of insecurity and other forms of violence not usually associated with traditional conflict. The role of gendered experience in shaping peace processes is also considered, especially women’s participation is peace-building and the secure establishment of peace after conflict. It is suggested that many more connections need to be made if gendered experiences in the narratives of war are to be fully appreciated. The importance of avoiding stereotypes is made apparent.

Recent developments in the nature of warfare have had profound consequences for gendered experiences both during and after conflict. While war has traditionally been defined as either an international military struggle or a civil conflict between opposing forces within a state, it is now increasingly understood as ‘a sustained campaign against something undesirable’ (Concise English Dictionary, 2011: 1628). Indeed, today’s wars are referred to as ‘wars’ against drugs, guns, and terror (Kerrigan, 2017; Winkler, 2011; Rogers, 2004), partly, but not exclusively, fought within civil societies, including women and children holding only a limited knowledge of the war in their streets. This essay will show how war and peace can be viewed through the prism of gendered experience and, more importantly, that a full appreciation of the gendered nature of conflict is vital if the processes of modern warfare and peace-making are to be fully understood. This essay will use theories which stress the role of male elite power interests, as well as those which argue that the end of conflict is merely the prelude to the reassertion of patriarchal, social relations and ‘gendered dynamics’ (Borer, 2009: 1172). It will show how gendered experiences extend war beyond its hitherto geographical and temporal frameworks and bring value to the idea that peace should be ‘built’ rather than simply ‘declared’.

It is vital from the outset to understand the different ways in which women are affected by war and post-conflict situations. The United Nations Security Council Resolution 1325 recognises that, at the most basic level, men and women experience conflict differently. The Resolution encourages international actors to increase women’s participation in peace and security processes and incorporate gender perspectives into post-conflict initiatives. An example of these principles being successfully applied is the Women, Peace and Security (WPS) agenda. Yet whilst Fionnuala Ní Aoláin (2016: 275) rightly identifies WPS as “the dominant discourse framing women’s advocacy and action in international affairs”, she also explains that until recently, the types of conflict likely to fall within the WPS agenda’s remit have been narrowly defined as those which lie within the denotation of traditional armed conflict. Presumably, the long-running siege of Mosul (2016-2017) would be included, whereas the 2012 racist murder of Shaima Alawadi, an Iraqi woman, in California would not (Sjoberg, 2013; Katrandjian, 2012). Presumably, the 2017 attacks in Borough Market in London would also be excluded. The exclusion of these events, which do not fall within traditional definitions of armed conflict, is significant since it increases the risk of gender essentialism by which the gender is understood according to physical characteristics. This limitation in the WPS agenda’s remit is particularly significant as the terms for inclusion have been defined by male-dominated security institutions. For example, while the first session of the United Nations Counter-Terrorism Committee (CTC) briefed states on the role of women in combating terrorism and extremism, the CTC has not to this date negotiated with the WPS, leaving the latter playing a peripheral role in the terrorism discourse. Ní Aoláin concludes:

“the superficial inclusion of references to women in the context of addressing terrorism and advancing counterterrorism strategies should not be read as a form of meaningful intersection between the WPS agenda and by now well-established post 9/11 international security regimes […] The parallel reality is that, despite over a decade of intrusion into the peace and security arena, women find themselves (yet again) at the wrong party” (2016: 289).

One conclusion which might be taken from this is that despite the WPS agenda’s attempt to include gendered experiences in conflict and post-conflict narratives, the full range of women’s experiences have not yet been fully accepted into the discourse of conflict prevention and resolution.

Defining War, Defining Peace

It can be argued that the traditional demarcations between war and peace do not allow for the full expression of gendered experiences. To see war as the incidence of violence between two or more states and peace as the absence of such an incidence generally obscures women’s experiences in war. This is the argument of Chris Cuomo (1996: 42), who sees war as “white noise in the background of social existence”. Thus, while certain women in the Congo perceive the motivations of soldiers to commit rape as intimately connected with the conflict, and regarded as the ‘spoils’ of war, other women experience war in less traditional contexts (Card, 1996). For example, Catherine Moon detects war in the behaviour of women prostitutes in the development of the Korean De-Militarized Zone (1997). Indeed, viewed from a broader perspective, events such as the death of Alawadi lay outside the conventional divisions between war and peace. Several feminist scholars (Elshtain, 1987) have argued that to distinguish between war and peace is similar to distinguishing between the public and private roles in civil society. Once such a distinction is removed, the ways in which gendered experiences shape the processes and practices of war and peace become clearer.

As such, it is important to identify a theoretical framework by which these gendered experiences can be more clearly understood. The theory of social constructivism, according to which the thread of gender identity is “woven, moved, stretched” as women and men take their places in the social world (Messner, 1990), has attracted some attention in regard to this issue. Michael Messner explains that “gender identity, rather than being viewed as a ‘thing’ which people ‘have,’ is thus conceptualized as a process of construction which develops, comes into crisis, and changes as a person interacts with the social world” (Messner, 1990: 419).

An understanding of social constructivism allows us to gain a new perspective on gendered experiences. For example, during the First World War, particularly following the introduction of conscription in 1916, women’s gender identity significantly developed; the effects of this development extended far beyond the Armistice of 1918 and the peace treaties that followed. Conventional historical analysis has highlighted the way in which the involvement of women in WWI aided the campaign for female suffrage. Yet social histories of the 1920s shows how pre-war patriarchal societies sought to restore women to their traditional roles, while several women rejected any easy categorisation and certainly any restoration of pre-war complacencies (Vera Brittain and Virginia Woolf are two contrasting examples) (McKibbin, 1998). In this context, peace can indeed be interpreted as a process, one which has an impact far beyond the conventional stereotype. Hanley’s (1991) thesis shows how the widespread perception of the solider on the front line as the main victim of war frequently prevents us from acknowledging other victims and the effect of war on gendered experience. This also:

“discourages questions about war as a continuous condition […] eerily reminiscent of the motel room Patrick Purdy left behind when he set out for the Stockton, California schoolyard where he would spray the playing children with bullets from his assault rifle, killing five and ultimately himself. His room at the motel was empty but for a company of toy soldiers […]” (Hanley, 1991: 31-32).

The fact that Hanley’s analysis stretches from the First World War to the Cleveland Elementary School shooting in 1989 reveals the long history of tensions in gendered behaviour in the context of war and peace. However, detailed analysis of a more recent peace process will allow us to understand gendered experience more comprehensively.

The Example of South Africa

A highly persuasive account of the gendering of peace concerns one of the most famous peace and reconciliation movements. Tristan Anne Borer’s analysis of the South African Truth and Reconciliation Commission (SATRC) shows that women were reluctant to talk about the sexual violence experienced during the apartheid era. Indeed, women were far more willing to discuss offences committed against male relatives rather than offences against themselves, a point illustrated by testimony concerning sexual violence (Borer, 2009). Rape, as argued by Diken and Lausten (2005), is a prime strategy of warfare. In their work on the Congo, Baaz and Stern (2009) show women were often raped by soldiers from their own country as well as by peacekeepers who were supposedly their protectors. Yet, among the 21,000 testimonies given to the SATRC, only 140 mentioned rape (Borer, 2009: 117; South African Truth and Reconciliation Commission, 1998: 296). One explanation for this outcome is that, according to its definition, the TRC was interested in gross violations of human rights (GVHR) confined to killing, abduction, torture or severe ill treatment. Notably, Borer (2009) does not argue that rape surely qualifies as severe ill treatment. However, she does show that in its desire to pursue racial injustices, the TRC underestimated the degree to which “patriarchal power relations were integrated and used to bolster the power of the oppressors within indigenous communities” (Goldblatt and Meintjes, 1998). The TRC was clearly aware of its deficiencies in this area and stated in its final report that the definition of GVHR adopted by the Commission resulted in a blindness to the types of abuse predominantly experienced by women. This evidence indicates how the processes and practices of peace can be misconceived when insufficient attention is given to gendered experience, and to the social constructivist role played by women in post-conflict situations.

The South African example is equally instructive in other ways. Though an understanding of women’s experiences is essential to the process of peace, women in South Africa were reluctant to describe assaults due to a sense of shame. Added to this sense of shame, black women generally feared that testifying against the men who raped them would bring shame on the post-apartheid government. Indeed, many of the alleged rapists held government office positions and some were prominent members of the ANC (Borer, 2009). In this context, it can be argued that truth was particularly dangerous for post-conflict reconstruction. In addition, women who testified to events of rape suffered before they themselves rose to significant positions in the ANC would be seen as ‘weak’ from a male standpoint, assuming they had ‘allowed themselves’ to be placed in such a situation. Ultimately, the TRC acknowledged that women had indeed suffered from gross violations of their human rights, yet did so without undertaking a full investigation of those violations, an inquiry which may have been further hampered by the widespread reluctance of men to acknowledge the acts of sexual violence committed (Borer, 2009).

The South African example is also helpful for understanding present-day South African society. Sjoberg (2013) and other scholars (McEvoy, 2009) have shown that peace needs to be ‘built’ and is “not something that can be imposed from the top down by political elites but something that must be constructed from the bottom up with citizen participation” (Sjoberg, 2013: 180). The absence of such participation in South Africa has led to a failure to implement fundamental changes in ordinary women’s lives, despite many black women now occupying significant government positions. In Borer’s view, the failure of the TRC to address these issues means that the chances of implementing such changes are made “immeasurably more difficult when one key institution devoted to raising awareness about the culture of human rights – such as a truth commission – turns a blind eye, no matter how unintentional, to the plight of women” (Borer, 2009: 1186).

Perhaps a positive conclusion to be drawn is that the absence of a full analysis of gendered experience could enable other post-conflict societies to understand the rigour needed if the process of peace is to be fully completed.

Broader Conceptions of Peace

If gendered experience is to be fully assimilated into the reconstruction of peace in post-conflict situations, a much broader understanding of the nature of peace is needed. As discussed, peace is not merely the absence of war, but also the absence of violence and insecurity. Birgit Brock-Utne (1989) persuasively suggests that peace should encompass justice and equality rather than simply an end to war. The replacement of violence and insecurity with justice and equality can be achieved only if certain areas of gendered experience are addressed. Brock-Utne suggests that these areas include wife-beating, unequal working conditions and free speech, and may also include an end to sweat shop labour and gendered divisions of labour and resources. Women working in factories whose rights are infringed by the demands of war, those forced into prostitution, and those whose domestic safety is threatened, can all begin to shape peace processes by bringing their situation to the notice of relevant authorities. However, such willingness to give evidence may be limited, particularly in societies where war is closely linked to ideals of masculinity.

In societies where masculinity and militarism are particularly intertwined, the proclivity for war can be a structural rather than an incidental issue. Gendered experience can shape the process of both war and peace by showing how war is often perceived as the conventional image of “(masculine) warriors” protecting “(feminised) civilians” (Sjoberg, 2006). Such notions of protection are often far removed from the reality of feminine experience of war. Women are not necessarily protected in such situations and when they are, such protection may be dependent upon a loss of other rights such as the freedoms of expression and self-determination. Susan Rae Peterson has argued that war is a ‘protection racket’ whereby the lives of those ostensibly protected are risked to justify the making of war (Peterson, 1977). Indeed, some people justify the making of war by reference to the protection of the idealised ‘female’, a process which frequently entails the subjugation of women. This is one of the reasons why military propaganda has typically focused on the victimisation and murder of women by enemy combatants in order to motivate men to volunteer for service. Victory can legitimise exploitation and provide an excuse for violence if that exploitation is resisted.

The analysis above underlines the crucial role of gendered experiences in shaping peace processes. However, to take the first steps towards achieving this goal, it is vital that the theoretical positions underpinning peace activism are fully understood. The essentialist position places innate male violence at the root of war, making a clear link between war as it is commonly understood and violence in domestic situations (Kelly, 2000). Moreover, it is argued that attacks on women in war are evidence of a male desire to possess women as property, given that property, if defined broadly, can include productive labour and reproductive capacity (Turshen, 2001). In addition to physical assaults, women in war are made responsible for tending to the injured, caring for the young, and playing their part to ensure that another generation will be produced. This view clearly does not reflect the full range of gendered experiences in either war or peace, and fundamentally limits women to the traditional reproductive and nurturing roles. As Louise Vincent suggests, peace-builders who rely on such stereotypes:

“are reinforcing rather than assisting the fundamental revisioning of prevailing relations of gender dominance which justify women’s exclusion from the public sphere of work and politics on the basis of their putative special responsibilities and proficiencies as mothers” (2001: 5).

There seems to be a double-knot here, in that the evidence of the WPS suggests that women’s roles in peace-building are limited partly because of an essentialist outlook, and such a limitation refers to both male and female failing to be considered when peace processes are underway. It is these deficiencies which clearly need to be addressed if war is to be fully understood and peace built on secure foundations.

Conclusion

Evidence suggests that gendered experiences have shaped the processes of war and peace far more in recent years than has historically been the case. It is now understood that women’s experiences include more than simple nurturing and, just as significantly, that male roles in conflict and conflict resolution can be stereotyped as well. El-Bushra et al. (2005) has pointed out that women engaged in peacebuilding have been described as ‘weaving’ peace or supplying a ‘warm blanket’ of peace. Although such words reflect essentialist preconceptions of women’s roles, gendered experience is generally viewed as more concerning. Social constructivism offers opportunities to reveal the depth and variety of gendered experience. Gradually, an understanding of these two positions is filtering into peace processes. At the same time, the deficiencies outlined in South Africa, the Congo and elsewhere, not to mention the limitations of the United Nations in this regard, reveal that many more connections need to be made if gendered experiences are to be completely reflected in post-conflict contexts. This may change both the lives of everyone involved in conflicts and the complex processes of reconciliation that follow them.

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Why Is Sexual Violence Such an Effective Weapon of War?

Dawn Stevenson, University of Leeds, UK

Dawn Stevenson studied International Development and Spanish at the University of Leeds. After volunteering with a sustainable development NGO in Nepal for 9 months, Dawn is now working as a Policy Advisor in the Civil Service. Her main areas of interest are human rights, climate change and sustainable agriculture.

Abstract

Sexual violence is one of many war crimes that is effectively and strategically committed to achieve war aims; it encompasses many forms of violence and is perpetrated against victims of all genders during both wartime and peacetime.This paper argues that rape is an extremely effective weapon of war because its multidimensional consequences give rape the powerful ability to destroy not only its victims, but to tear apart their families and communities. It will explore how rape becomes a strategic tool to inflict long-term, devastating and debilitating consequences for female victims, for the men socially connected to them, and equally for their communities and future generations. These consequences are facilitated by gendered structural violence and inequality entrenched in patriarchal (male-centred, structured in sexism) societies and their perceptions of female sexuality and male dominance. These pre-existing perceptions and attitudes facilitate the widespread use of sexual violence as both a deliberate strategy of war and as an outcome of economic grievances.

“We won’t waste bullets on you; we will rape you and that will be worse for you” (Zimbardo, 2007, p. 13)

Sexual violence is one of many war crimes that is effectively and strategically committed to achieve war aims in almost every armed conflict in recorded history (Jones, 2013, p. 1). Until the recent UN recognition of its systematic and deliberate employment as a strategic weapon of war in 2008 (UN, 2014), sexual violence had been perceived as merely a consequence or side effect of war (MSF, 2004). However, brutal and devastating forms of sexual violence are utilized to achieve the military and political objectives of warring factions, to terrorize, displace and destroy ‘enemy’ groups (UN, 2014; Baaz and Stern, 2009; Jones, 2013, p. 2). Sexual violence encompasses many forms of violence and is perpetrated against victims of all genders during both wartime and peacetime. For clarity and precision of focus this article will specifically analyse sexual violence in the form of rape of women and girls. As it is rape that is perpetrated en masse as an effective weapon of war (Farwell, 2004). Moreover, the preponderance of rape warfare is perpetrated against women and girls (UN, 2008).

This article will argue that rape is an extremely effective weapon of war because its multidimensional consequences give rape the powerful ability to destroy not only its victims, but to tear apart their families and communities. It will explore how rape becomes a strategic tool to inflict long-term, devastating and debilitating consequences for female victims, for the men socially connected to them, and equally for their communities and future generations. These consequences are facilitated by gendered structural violence and inequality entrenched in patriarchal (male-centred, structured in sexism) societies and their perceptions of female sexuality and male dominance (Boesten, 2012). Structural violence is defined as violence present not necessarily in direct, physical action but embedded into the political and economic structures of society (Farmer et al. 2006, p. 1686). Many forms of social injustice, including gender inequality and poverty form structural violence because they prevent individuals from realising their physical and mental potential (Galtung, 1969, p. 171). This article will conclude that these pre-existing perceptions and attitudes facilitate the widespread use of sexual violence as both a deliberate strategy of war and as an outcome of economic grievances.

To explore these issues, the article will principally analyse the case study of the Rwandan Genocide (1994), in which systematic, militarised rape was clearly used as a strategy of genocide to achieve ethnic cleansing and displacement of the Tutsi population. It will also draw from comparisons from the lengthy conflict in the Democratic Republic of Congo (DRC) (1997-2003), which provides insight into the complex interplay of the strategic, militarily-commanded use of rape understood by the ‘Rape as a Weapon of War’ discourse (Eriksson Baaz and Stern, 2013, p. 4), and the wartime exacerbation of ‘normal’ sexual violence born of soldiers’ socioeconomic grievances rooted in structural violence. It will explore how in both Rwanda and the DRC, rape warfare perpetrated with the economic goal of extorting personal assets and land by displacing women and communities, thus showcasing the political economy of rape (Turshen, 2001).

Sexual violence as a tool of genocide in Rwanda

We must first examine the use of sexual violence as a tool of genocide in Rwanda and explore why it was so effective in achieving the Hutu war objectives of destroying the Tutsi ethnic group and displacing them from land and assets in order to pillage. During the three months of genocide in Rwanda in 1994, an estimated 800,000 to 1 million Rwandans died, eradicating three quarters of the Tutsi population (Jones, 2013, p. 2). The systematic rape of up to 500,000 Tutsi women perpetrated by the ‘Interahamwe’ Hutu militia groups, civilians, and soldiers of the national Rwandan Armed Forces (FAR) (Human Rights Watch, 1996), was used as a weapon of war and an act of genocide with the intent to destroy the Tutsi ethnic group.

Understanding why rape was used as a weapon to further war objectives in Rwanda necessitates understanding the foundations of the genocide that created those objectives. The root of this genocide was the colonial assignment of distinct races to the previously fluid Hutu and Tutsi ethnic groups, creating “racialized political identities” that were later reproduced by nationalism during the post-colonial Rwandan revolution of 1959 (Mamdani, 2003, p. 144). Rwanda became a ‘Hutu nation’, in which the ‘alien’, non-Rwandan Tutsi aristocracy was seen to be holding a colonial, illegitimate claim to power. This language of political racialisation produced a radicalised Hutu social ideology which was inflamed by the military invasion of the Rwandan Patriotic Army (RPA) of exiled Tutsis from Uganda in 1990, which in turn triggered the civil war. The invasion was seen as an attempt to restore the colonial Tutsi monarchy, which justified brutal Hutu-Tutsi violence to wipe out the Tutsi population, all in pursuit of justice for the Hutu nation (Mamdani, 2003, p. 143, 147).

Genocide can be committed through various methods: by the mass murder and prevention of future reproduction of a victimized group, but also by destroying the cultural and social bonds of that group (Card, 1996, p. 8). In Rwanda, rape was used as a weapon for both strategies in the destruction of the Tutsi population. Firstly, rape was used to control reproduction, to end the Tutsi ‘race’ not only through murder and forced sterilization of Tutsi women by mutilation (Sai, 2012), but also by changing the race of the next generation through pregnancies resulting from Hutu rape of Tutsi women. During the genocide thousands of Tutsi women were gang-raped and raped with objects such as sharpened sticks and gun barrels, to cause life threatening injury and to forcibly sterilize them, to prevent the Tutsi population from bearing children (Human Rights Watch, 1996). In patriarchal societies such as the one in Rwanda, children adopt the father’s ethnicity; hence children of forced pregnancies take the ‘enemy’ group’s ethnicity (Sai, 2012). This ‘deliberate pollution’ of the “bloodlines of victimised populations” (Bartels et al., 2013, p. 341) is a frequent feature of genocidal warfare. It was also employed during the Bosnian war (1992-95), in which the systematic mass rape of an estimated 60,000 Bosnian women was used as a strategy for the genocidal ethnic cleansing of the Bosnian race through forced pregnancies, so that raped Bosnian women would give birth to a Serbian baby (MSF, 2004). The ability of rape to eliminate ethnic populations by changing the bloodlines of the next generation through forced pregnancy makes it a unique tool of genocidal warfare.

Rape warfare is extremely effective in decimating enemy communities because of its multidimensional, devastating and long-term consequences for raped women in the aftermath of their abuse. Many women raped in conflict are killed directly after or die from their injuries (Card, 1996, p. 8), whilst survivors can suffer life-threatening and long-term physical injuries from rape and/or mutilation (MSF, 2004). Many victims are also deliberately infected with HIV, which in fact led to an epidemic in Rwanda (Park, 2007, p. 15). Psychologically, sexual violence is used to intimidate, threaten and keep women in a state of fear (Brownmiller, 1986). In Rwanda, the Hutu population was encouraged to “use rape as a tactic of terror and spiritual annihilation” (Jones, 2013, p. 2), stripping Tutsi women of their dignity and identity (Sai, 2012) and causing long-lasting trauma (MSF, 2004).

Another factor that contributes to the efficacy of sexual violence as a weapon of war is that perpetrators of rape warfare have historically maintained impunity from retribution (Falcon, 2001). Despite its recent recognition by the UN and international community as a global security problem (Eriksson Baaz and Stern, 2013), rape remains one of the most “under-reported and inadequately prosecuted of all war crimes” (Allen, 2007; Jones, 2013, p. 1). The stigma and socioeconomic consequences for sexual violence victims, rooted in patriarchal gender inequality, reinforce impunity. As the vast majority of women who suffered rape and other forms of sexual violence in both Rwanda and the DRC did not report or reveal the abuse they went through due to fear of rejection and ostracization from their community (Human Rights Watch, 1996). Moreover, sexual violence is not sufficiently addressed in post-conflict reconstruction and transitional justice programs. The impunity of sexual violence is important to consider because a lack of deterrence “only perpetuates its use and lessens the likelihood that perpetrators will face justice for their transgressions” (Jones, 2013, p. 2) as well as reinforcing the image of a soldier’s entitlement to rape as a spoil of war (Falcon, 2001).

The physical and psychological trauma of rape is exacerbated by its socioeconomic consequences that are underpinned by gender inequality and patriarchal perceptions of women and female sexuality. This gives sexual violence the ability to destroy not only its victims, but also their families and communities. The importance of women’s sexual virtue and the prizing of female virginity means that raped women suffer from great stigma and shame. Survivors are commonly ostracised by their families and communities (Nolen, 2009) and are vunable to reintegrate into society. The husbands of rape survivors are also considered shamed, thus raped women are often rejected by their husbands (2009), especially when left with pregnancies and children from rape Thereby they lose their access to land and economic sufficiency, thus being forced to live in isolation and poverty (MSF, 2004). In this way, because of the structural violence of gender inequality entrenched into patriarchal societies, rape can tear apart families and communities, and create a population of landless, ostracised women in extreme poverty, transforming rape into “a kind of slow murder” (UN, 2008). Therefore, underpinning the power and efficacy of sexual violence as a weapon to dominate, destroy and humiliate enemy groups and the choice to use this method, is the cultural emphasis on women’s sexual virtue and on controlling female sexuality, founded on normalized gendered violence and gender inequality (Eriksson Baaz and Stern, 2013, p. 4).  The consequences of rape then reinforce the structural violence of gender inequality, as stigma, shame; social and economic ostracization and poverty exacerbate the already subordinated position of women in society, forming a continuity of violence against women, both structural and direct.

Women’s bodies as a battleground

Perpetrators exploit cultural conceptions of women’s sexual virtue and of men as protectors, to destroy individuals, families and communities through brutal forms of rape. In Rwanda, mass rape was used to tear apart communities and eliminate the cohesion of the Tutsi population. Frequent and brutal patterns of sexual violence during the Rwandan genocide included rape in the presence of family members, and equally witnessing the torture and murder of relatives (Human Rights Watch, 1996). This method was also employed in the Rape of Nanking during World War II, where Japanese Imperial Army soldiers gang-raped tens of thousands of Chinese women and girls, including the frequent use of forced rape between family members upon threat of death and forcing victims to watch the rape of their relatives (Jones, 2013, p. 1). These patterns exhibit a “calculated employment of psychological warfare aimed at reducing the cohesion of family units and the community as a whole” (2013, p. 1). The fundamental function of rape is the assertion of a “cross-cultural language of male domination” (Card, 1996, p. 11) by which perpetrators dominate and humiliate not only their female victims but also the men who consider themselves protectors of those women – husbands, fathers and brothers: “you destroy communities. You punish the men, and you punish the women, doing it in front of the men” (UN, 2008). The way women and girls are raped to humiliate and dominate their male relatives reflects the entrenched, structural, gendered violence they suffer, as “their bodies become a battleground over which opposing forces struggle” (Park, 2007, p. 15). Built upon these foundations, the multi-dimensional destructive consequences of rape are particularly effective in damaging familial and community cohesion (Card, 1996, p. 11) and are strategically employed to achieve “genocide by cultural decimation”, rendering mass killing unnecessary (1996, p. 8).

The mutilation of breasts and genitals that was perpetrated en masse alongside rape during the genocide formed part of a campaign of terror and “intimidation in its most malevolent form” (Jones, 2013, p. 2) and showcased the efficacy of rape and other forms of sexual violence as a weapon of war. This pattern reflected the hate media propaganda that portrayed Tutsi women as overtly “sexual weapons that would be used by the Tutsi to weaken and ultimately destroy the Hutu men” (Sai, 2012). As well as mutilations that took away distinctly Tutsi, ‘Hamitic’ features, the breasts, vagina and pelvic areas of victims were sometimes mutilated with machetes, sticks and boiling water following rapes (Human Rights Watch, 1996). Moreover, during the war and genocide women were more often raped out in the open than in their homes, often killed directly after they were raped, and “left splayed on public roads… with mutilated genitalia” (Sai, 2012). The horrific brutality of these assaults displayed publicly enacts symbolic violence, in that it sends the clear message of terror that “this can happen to you” (2012), validating Brownmiller’s (1986) assertion that through rape, “all men keep all women in a state of fear”. The clear patterns of mutilation show and symbolize the extreme bodily (re-)assertion of male Hutu dominance over Tutsi women and their sexuality, and over the whole Tutsi population, again exemplifying a war being fought over women’s bodies, which become the battleground for the humiliation of the enemy (Réseau des Femmes pour un Développement Associatif, 2005) (Park, 2007, p. 15).

A further purpose for using rape as a weapon of war in Rwanda was to disperse or forcibly relocate Tutsi communities, not only for ethnic cleansing, but strategically for the extortion of land and assets (UN, 2008). This was rooted in underlying Hutu grievances caused by the structural violence of social inequality between Hutus and Tutsis, entrenched by the colonial legacy of Tutsi aristocracy, which justified the extortion or ‘taking back’ of land from Tutsi families. Furthermore, the civil war legacy led to mass displacement, with 15% of the Rwandan population living in camps by 1994 (Mamdani, 2003, p.147).  The “plight of the displaced spread fear”, with hate media propaganda playing a crucial role in creating the discourse that if the Tutsi returned to power, the ‘Hutu nation’ would “lose both their land and their freedom, in short, everything” (2003, p. 147). Therefore, during the genocide, soldiers seized the property of widows whose husbands they had killed, acquired land through forced marriage to their victims, and pillaged the houses and possessions of those they raped (Turshen, 2001, p. 7). Some village massacres and mass rapes were committed for the prospect of acquiring land and assets (2001, p. 7) by killing the inhabitants and/or terrorizing them into fleeing their homes.

Rape for the extortion of assets: the case of the DRC

The effectiveness of rape as extortion of assets has also been a major objective of its mass perpetration during the lengthy conflict in the Eastern Democratic Republic of Congo (DRC). Sexual violence has been a ‘defining feature’ of the war, making it the clearest “example of brutality and [the] widespread nature of rape in modern-day conflict” (Bartels et al., 2013, p. 307), with currently approximately 1.8 million Congolese women having been raped in their lifetime (Hirsh and Wolf, 2012). Mass, brutal rape of civilian women was used to “destabilize, dominate and destroy entire communities” by up to 20 armed ‘warring parties’ in the Eastern DRC fought for control over the region’s vast reserves of gold, diamonds and other minerals (Bartels et al., 2013, p. 307) (Dettke, 2012). Clear patterns in the perpetration of rape show that it was committed systematically and strategically for the economic objectives such as wresting personal assets and land from women, creating the political economy of rape (Turshen, 2001, p. 1). Most rapes were perpetrated by armed combatants, and the livelihood of the majority of female victims was in agriculture, which gave them access to the valuable assets of land and livestock (Bartels et al., 2013, p. 332). The majority of rapes were committed inside the victims’ own home and in their fields, often in the presence of husbands and children (Hirsh and Wolf, 2012), and often with extreme brutality echoing those in Rwanda, including forced rape between victims, rape of the very young, old and pregnant, mutilation and murder (Bartels et al., 2013, p. 350). These patterns clearly showcase rape perpetrated to terrorize and displace women and communities, leaving abandoned settlements to the persecutors (Dettke, 2012), the power lies in the atrocity of rape which makes it an effective weapon of war.

However, analysis of rape warfare must consider that the causal factors of its perpetration are more complex than ‘simply’ as a deliberate tactic to achieve war aims. For Eriksson Baaz and Stern, the ‘rape as a weapon of war’ discourse can be problematic, because of its seemingly universal conception of rape warfare as a conscious military strategy, ordered and “enforced down the chain of command” (2013, p. 4). In some contexts, this very much is the case: in Rwanda both the killings and the mass, systematic use of sexual violence of the genocide are known to have been ordered or encouraged by military and political leaders at both national and local levels to further their political goal – the destruction of the Tutsi as a group (Human Rights Watch, 1996). However, the discourse can exclude the nuanced realities of different conflicts, in which a complex interplay of factors may lead to the perpetration of mass rape by soldiers without strategic orders necessarily being given (Boesten, 2010, p. 111).

In the DRC, the mass use of sexual violence in the conflict reflected the opposite: the breakdown of discipline and control in military structures, allowing soldiers to manifest their social and economic grievances into sexual violence (Eriksson Baaz and Stern, 2013, p. 4). Ethnographic research with soldiers in the DRC has shown clearly that individual perpetration of rape is very often directly caused by economic grievances and frustrations. Many militias in Eastern DRC are unpaid, with soldiers having little or no access to resources, making their living from extorting the population when possible in order to survive. Militias are dysfunctional and undisciplined, with combatants poorly trained, therefore rape becomes an ‘ideal’ and effective tactic to facilitate soldiers’ pillaging of local villages, that soldiers rely upon to meet their material ‘needs’ (Bartels et al., 2013, p. 342), without being a necessarily mediated and ordered warfare strategy. Interviewed soldiers said they had never received specific orders to rape, rather they had the attitude that rape is unavoidable in conflict situations (Eriksson Baaz and Stern, 2010, p. 31), and that rape was tolerated (even if not ordered) by their commanders. Furthermore, many soldiers claimed that poverty was their main reason for perpetrating sexual violence as well as other forms of violence, both to facilitate pillaging, and in their resorting to force to fulfil their sexual ‘needs’, being unable to “get a woman the normal way” without money (2010, p. 31).

Therefore, it can be said that the structural violence of extreme poverty can produce opportunistic rape (Boesten, 2010) within a patriarchal society that normalizes violence against women. From their justifications for rape, it is clear that in reality, widespread perpetration of rape by soldiers in the DRC (as in all conflicts), is caused not only by an ordered strategy but also influenced by the interplay of many contributing causes. These include ideas of militarised male sexuality that make them feel entitled to rape, and justify sexual violence as a ‘normal’ and ‘unavoidable’ consequence when combatant men are deprived of sex (Eriksson Baaz and Stern, 2010, p. 32). Moreover, pre-existing patriarchal perceptions of women as sex objects and of rape as a legitimate ‘spoil’ of war (UN, 2014) justify perpetration of the mass rape of women, and are exploited during conflict, facilitating the targeting of women through sexual violence as a weapon for achieving war aims. The intersection of normalized, gendered violence, and extreme wartime violence can be seen here: research shows that sexual violence is perceived as normal by communities in Eastern DRC (Hirsh and Wolf, 2012), and wartime violence is the “magnification of existing institutionalized and normative violence against women” (Boesten, 2012, p. 7). Therefore, the efficacy of sexual violence to achieve war aims, as both a deliberate strategy of war and as the outcome of economic grievances, is facilitated by pre-existing perceptions and attitudes which embody gender inequality and normalized gender-based violence, for “what people tolerate in peace shapes what they will tolerate in war” (Nordstrom, 1997, p. 1).

Conclusion

Sexual violence becomes an inexpensive and readily available yet extremely effective tool to achieve war objectives (Nolen, 2009), because of its immense impact that destroys and displaces communities (Bartels et al., 2013, p. 352), eliminating the cohesion of opposition and providing opportunities for perpetrators to pillage assets and extort land from their victims (Dettke, 2012, p. 2). Though not the only war crime that is used as a weapon to achieve these purposes, sexual violence has a unique ability to destroy its victims physically, socially and economically and tear apart their families and communities, stripping the humanity not just from the victim but from the group she is part of (Eriksson Baaz and Stern, 2013, p. 54). Held up by the structural gendered inequalities and perceptions of women in patriarchal societies, the consequences of rape devastate not only the victim but humiliate and destroy her family and community. The brutality and horror of rape perpetrated in warfare are so effective in terrorizing the population and preventing rehabilitation that they facilitate its use as a tool to achieve ethnic cleansing and displacement. The ability of rape to forcibly sterilize an enemy population and to ‘pollute their bloodline’ by changing the ethnicity of the next generation also make it a unique strategy of genocidal war. Moreover, whilst other war crimes face consequences in the post-conflict period, perpetrators of rape warfare commonly face no retribution. However, analysis of the complex interplay of contributing factors to the widespread use of rape in warfare, including the manifestation of economic grievances and brute poverty, and the exacerbation of pre-existing normalized sexual and gendered violence, shows that one cannot only conceptualize its use through the ‘weapon of war’ discourse, but must also consider these factors to gain a clearer understanding of the realities of rape in warfare.

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The Evolution of the International Fact-Finding Missions in Armed Conflicts – From Collecting Facts to Collecting Evidence

Niriksha Sanghvi, Leiden Law School, Netherlands

Niriksha Sanghvi is a graduate of the Advanced LLM program in Public International Law, with a specialisation in International Criminal Law from Leiden Law School, Netherlands.

Abstract

The paper explores the development of the International Fact-Finding Missions from the early Maine inquiry in 1898 to the International Humanitarian Fact-Finding Mission established under the Geneva Conventions and leading up to the UN ad-hoc inquiries in Syria and Myanmar with focused accountability mandates. This analysis is done in the background of the corresponding legal framework governing the establishment of these inquiries, with the Hague Conventions for Pacific Settlement of Disputes (1899 and 1907), the Additional Protocol I of the Geneva Conventions and the various UN resolutions establishing the conflict specific and ad-hoc fact-finding missions. The paper also discusses the differences between the mandates of these commissions and the increasing scope and importance that fact-finding inquiries have become to hold. On the basis of this evaluation, the paper concludes that the mandate and goals of these International Fact-Finding Missions have gradually shifted from clarifying and documenting the ‘factual events’ in contention between affected parties to investigating, collecting and preserving ‘evidence’ of international law violations in conflict areas. The role of fact-finding missions has therefore changed to documenting mass atrocities and furthering the efforts for criminal accountability of international crimes. In the process, there are certain problems that these commissions pose such as lack of state consent, lack of a standardised or prescribed standard of proof and donning of a quasi-prosecutorial role in an ad-hoc fashion. In light of this, it is proposed that the UN-Fact finding missions should be regulated through enactment of a set of protocol or rules to govern their mandate, reach and purpose to provide a sound legal basis for their functioning.

The aftermath of Second World War has seen an exponential rise of international, regional, national and non-governmental fact-finding commissions, commissions of inquiries and special rapporteurs appointed in various human rights and atrocities situation. These non-judicial bodies are appointed to investigate into the alleged violations of international human rights law (IHRL), international humanitarian law (IHL) and international criminal law (ICL) and their documentations and recommendations have considerably strengthened the international law protection to combat mass atrocities.

There are, however, divided opinions on their legitimacy. The different themes being discussed around the rise of fact-finding missions are, firstly, that they represent a step towards accountability, especially in situations where there is lack of an effective international mechanism. This has become the case with the recent conflicts of Syria and the atrocities against the Rohingyas. In both situations, there is a complete breakdown of domestic machinery and lack of the political will of the State to protect the civilians. Adding to this, there is a deadlocked United Nations Security Council (UNSC) with its veto structure and the lack of jurisdiction of the international courts and tribunals. Nevertheless, in the Rohingya situation, the International Criminal Court (ICC) has established its limited jurisdiction over the crime of alleged deportation of Rohingyas to Bangladesh, a state party to the ICC (ICC Rohingya Decision, para 73). This limited jurisdiction, whilst providing hope for some kind of accountability, excludes other alleged crimes such as of genocide. In the Syrian and Yemen conflicts, no international court or tribunal currently has jurisdiction. Recognising these difficulties associated with international criminal prosecutions, the fact-finding missions are described as ‘second-best options’ (Crawford, 2018). Secondly, outside accountability, fact-finding missions are also a tool for raising awareness around the circumstances of conflict and generating pressure on the parties to the conflict to follow rules of IHL.

On the other hand, some argue that these missions exaggerate the actual situation on the ground so as to be put under the label of international crimes (Blank, 2010, p. 280). This is criticised as manipulation of the international law for political gains, and the increasing use of law as a tool of war or ‘lawfare’ is leading to every regular civilian death by a combatant in an armed conflict being labelled as a war crime (Dunlap, 2001, p. 4). There are scepticisms on the soundness of the recent juridification of these fact-finding missions whose role has been extended to legal classifications of violations and identification of possible perpetrators (van den Herik, 2014, p. 531; Blank, 2010, p. 289). In light of these opposite positions taken on the relevance of fact-finding missions, there is no consensus yet on their success or failure in propelling international criminal justice.

Further, there is no clarity on the limits and purposes of the UN based fact-finding missions which have grown from merely collecting facts to conducting legal analysis of the conflict and crimes. The preliminary question, therefore, is about their purpose. Is their scope to use the information as propaganda material or to base a political decision on ascertained facts, to come to a mediation, conciliation or negotiation, or to reach a legal opinion on basis of facts in a human rights case or a human rights situation, or to come to a binding judgment about an allegation of a human rights violation? (Ramcharan, 2014)

To answer this, the paper looks at the gradual evolution and widening of the scope of the international fact-finding missions since the Hague Convention on Pacific Settlement of Disputes to the enactment of Article 90 of Additional Protocol I of Geneva Conventions to the modern ad-hoc fact-finding missions constituted for investigation and collection of legal evidence. Next, the paper discusses the metamorphosis of mandates of fact-finding missions under the UN framework and analyses the value such missions bring while also looking at the probable drawbacks. Lastly, the paper concludes that to streamline the ad-hoc proliferation of international fact-finding missions, there is a need to frame proper guidelines or rules of procedures setting down the framework of their conduct. The purpose and procedure of a fact-finding mission should be clarified which in turn would provide a check and balance system on the activities of the fact-finding missions.

The Evolution of Fact-Finding Commissions

The evolution of fact-finding missions can be broken down into two phases – conventional or treaty based and ad-hoc inquiries under UN. The earlier fact-finding missions were treaty-based which have now grown to become more independent and are constituted under the aegis of UN on a case by case basis.

Initial Phase

The initial purpose of the fact-finding missions was literal to their meaning. It was to clarify the facts and set the account of an incident straight to avoid contradictory findings by different sides to a conflict (van den Herik, 2014, p. 510).

  1. Commissions of Inquiry under Hague Conventions

The first international commission of inquiry was formed in 1898 following the Maine explosion incident in Cuba. Separate national inquiry commissions appointed by the US and Spain to investigate the sinking of US battleship Maine reached conflicting findings on the cause of the massive explosion which had resulted in the death of 266 American crew members on board on February 15, 1898 (Fisher, 2009). The report released by the US naval board inquiry pointed it to be a Spanish sabotage which deteriorated the already tensed US-Spain diplomatic relations leading to the American-Spanish War (Pérez, 1989, pp. 293-295).

This incident delineated the need for establishing an independent and impartial fact-finding commission. Around the same time, the Russians invited the leaders of 59 of the world’s sovereign States to participate in a peace conference in The Hague which was the first of its kind (Baker, 2009). One of the outcomes of this conference was the Title III 1899 Hague Convention for Pacific Settlement of Disputes (Hague I convention) under which the states agreed to institute an International Commission of Inquiry as a means for settlement of their international differences or conflicts “involving neither honour nor vital interests, and arising from a difference of opinion on points of fact” (Article 9, Hague Convention for Pacific Settlement of Disputes. 1899). The idea was to agree on an impartial and conscientious investigation to be undertaken by the International Commission of Inquiry based on a special agreement by the concerned states, wherein each party to the conflict can be heard to determine the facts (Article 10, Hague I Convention). The Commission’s final report was intended to be in the form of only a statement of facts and the convention clearly states that it should, in no way, be in the form of an arbitral award (Article 14, Hague I Convention).

The mechanism for an international commission of inquiry was further developed under the 1907 Hague Convention on Pacific Settlement of Disputes (Hague II convention) in the Second Hague Peace Conference which set the procedural rules for composition and functioning of the commission. The rules provide for selection of members of the commission similar to the selection of arbitrators i.e. two members to be appointed by each party, who shall jointly appoint an Umpire (Article 45, Convention for the Pacific Settlement of International Disputes. 1907). It also allowed the parties to appoint special agents to represent state’s interests at the commission and act as an intermediary between the state and the commission (Article 14. Hague II Convention). In addition, counsels or advocates could be appointed by parties to state their case and uphold their interests (Article 14, Hague II Convention). The procedural rules mirrored an arbitral or adjudicatory procedures regarding procurement and examination of evidence, witness examination and expert opinions and allows written submission to be presented by the agents or counsels for the purpose of ascertaining the truth (Article 19-29, Hague II Convention). These rules already reflect a shift in attitude of the states towards the role of these inquiries from being independent investigative bodies focusing on finding facts to quasi-arbitral or quasi-mediatory tools of non-binding nature (Politis, 1912, p. 149 as cited in van den Herik, 2014, p. 536). However, the goal of these inquiries was still limited to the ascertainment of truth. Also, these inquiries were a bilateral exercise between two or more states in conflict and were not to be constituted by any international bodies. The initial uses of these inquiry commissions were limited to naval vessel destruction inquiries (van den Herik, 2014, p. 513).

  1. International Humanitarian Fact-Finding Commission

Modelled on the Hague Conventions, the International Humanitarian Fact-Finding Commission (IHFFC) is an independent and impartial expert body established under Article 90 of Additional Protocol I (AP I) to the Geneva Conventions. The IHFFC was also established to take on the traditional role of inquiring into facts and not to judge. The 1987 commentary to the Additional Protocols makes it clear that the purpose of the Commission is to try and establish the chronology of actual facts of an incident where there are contradictory narratives (ICRC 1987 Commentary). However, unlike the ad-hoc inquiries under the Hague Convention, IHFFC is a permanent international body based in Bern, Switzerland. It is composed of 15 members including medical doctors, judges, high ranking military experts, diplomats and international law scholars elected for a five-year period (Azzarello and Niederhauser, 2018).

The IHFFC has  a specific mandate to enquire into any facts alleged to be a grave breach as defined in the Geneva Conventions and AP I or other serious violation of the Geneva Conventions or of the Protocol and also facilitate, through its good offices, the restoration of an attitude of respect for the Conventions and the AP I (Article 90(2)(c)(i) and Article 90(2)(c)(ii), Additional Protocol I). It has a consent-based competence similar to that under the International Court of Justice statute. It contains an optional clause on recognition of compulsory competence for States which at the time of signing, ratifying or acceding to the Protocol, or at any subsequent time, can declare that they recognize this competence ‘ipso facto’ (and without any special agreement) with respect to any other State making the same declaration (Article 90(2)(a), Additional Protocol I; ICRC 1987 Commentary). For other kind of situations, the IHFFC gains its competence only when all parties to the armed conflict make a declaration to that effect (Article 90(2)(d), Additional Protocol I). Such a declaration can be made by states without becoming a party to the AP I, thus allowing all parties to an armed conflict, including national liberation movements, to resort to the Commission on a case by case basis (ICRC 1987 Commentary).

Since this Commission has been established under AP I, it was originally interpreted to be limited to only international armed conflict. However, IHFFC has since clarified that it is willing to undertake inquiries into violations of IHL in non-international armed conflict as well, provided the parties to the conflict have consented to it (International Humanitarian Fact-Finding Commission, 2005, p. 1). The Commission interpreted its constituting Article 90 as including both the Geneva Conventions and the AP I and therefore, would also include common article 3 of the Geneva Convention which gives right to an impartial humanitarian body to offer its service to parties to the conflict, including an non-international armed conflict (Azzarello and Niederhauser, 2018). Same conclusion was inferred from the drafting history, subsequent practice, as well as the ordinary meaning in light of the object and purpose underlying Article 90 AP I (International Humanitarian Fact-Finding Commission, 2016, p. 2).

Since its official constitution in 1991 and recognition of its competence by 76 state parties, the IHFFC remained idle for many years, almost forgotten. A major reason for this has been states’ reluctance to accept the existence of an armed conflict and allowing an independent investigation (Sassoli, 2017, p. 6; Azzarello and Niederhauser, 2018) and also the lack of knowledge regarding the functions of IHFFC in light of the other fact-finding missions being established with overlapping mandates (International Humanitarian Fact-Finding Commission, 2016, p. 3). Suggestions have been made to amend the IHFFC framework to dissociate its seizure from state initiative, permitting the Commission to act on its own initiative, but it has not been materialised as yet (ICRC, 2004, p. 10). The Commission once came close to initiating inquiry in the armed conflict in Colombia. However, this did not materialise in the end as the agreement between the government and one of the armed opposition group to the conflict fell through after a change in the Colombian political landscape (International Humanitarian Fact-Finding Commission, 2001, p. 2).

A breakthrough came in 2017, when a situation was referred for investigation to the Commission when an Organization for Security and Cooperation in Europe (OSCE) armoured vehicle patrolling through Eastern Ukraine exploded resulting in the death of an OSCE paramedic. This was referred under an agreement signed between the OSCE and the IHFFC. A post blast forensic investigation conducted by an Independent Forensic Investigation team under IHFFC concluded that the anti-vehicle mine placed on the civilian road was the cause of the explosion but that the patrolling vehicle (SMM) was most likely not the intended target of the attack. The IHFFC report provides a brief legal analysis of the incident outlining that such an indiscriminate attack would be a violation of IHL (OSCE, 2017).

One criticism raised about this investigation is the legitimacy of the competence agreement signed by an international organisation (OSCE) instead of a High Contracting State authorising to investigate in a State’s territory. The 1987 commentary on Additional Protocols explicitly excludes “private individuals, representative bodies acting on behalf of the population, or organizations of any nature” from submitting a request to the Commission (ICRC 1987 Commentary). However, a supporting argument could be made that other international organisations like the UN Security have the power to refer an incident to the IHFFC through a Resolution under Chapter VII as has been acknowledged by IHFFC in its 2015 report on the work of the Commission (International Humanitarian Fact-Finding Commission, 2016, p. 2). Therefore, by analogy, other international organisations, like the OSCE, can also refer a situation to IHFFC. Further, article 90(2)(d) uses the term ‘party’ and not ‘High Contracting Party’ as used under article 90(2)(a) (A similar interpretation has been done in the ICRC blog: Azzarello and Niederhauser, 2018) which can be argued to include non-state actors like international organisations and rebel groups.

One of the main shortcomings of treaty-based mechanisms is their dependence on states’ consent or ratification to the relevant conventions establishing the mission or signing of a bilateral agreement for joint investigation. Furthermore, these mechanisms do not have any continuing monitoring powers over a conflict to provide consistent documentation. These mechanisms have, therefore, been limited to vessel inquiries and other non-atrocity or security related situations. The IHFFC is a novel creation under the Geneva Convention for the implementation of IHL. Unfortunately, it has not seen much success with only one proper investigation conducted since its inception. While a commission of inquiry report under the Hague Conventions could be read at public sittings (Article 13, Hague I Convention and Article 34, Hague II Convention), the IHFFC reports are released only to the parties involved (Rule 28(2), Rules of the International Humanitarian Fact-Finding Commission) widowing the general public from learning about any IHL violations. This provision could be a step to attract state parties to submit inquiry requests but as Marco Sassòli argues this also “creates a dent on the credibility of IHL” (Sassoli, 2017, p. 7).

Modern Phase 

Realising the potential of fact-finding missions as a means for ensuring enforcement and accountability under international law, the UN has also established various ad-hoc commissions to look into human rights and mass atrocities in conflicts. The terms fact-finding missions, commissions of inquiries, panel of experts, investigative mechanisms are used to describe these entities by different establishing bodies. However, there is no difference between them in terms of their purpose and methodological standards (OHCHR Report, 2015, p. 7).

The 1991 UN General Assembly (UNGA) Declaration on Fact-finding by the United Nations in the Field of the Maintenance of International Peace and Security (1991 UN Declaration Annex (I) point 2) defines a fact-finding mission as “any activity designed to obtain detailed knowledge of the relevant facts of any dispute or situation which the competent United Nations organs need in order to exercise effectively their functions in relation to the maintenance of international peace and security”. The Declaration also requires the fact-finding missions to be “comprehensive, objective, impartial and timely” (1991 UN Declaration Annex (I) point 3) and should be deployed at an early stage in order to contribute to the prevention of disputes and situations (1991 UN Declaration Annex (I) point 12). Further, it necessitates taking consent of the state before sending a UN fact-finding mission to the territory of that State (1991 UN Declaration Annex (I) point 6). At all stages of the fact-finding process, the concerned states are to be given an opportunity to express their views (1991 UN Declaration Annex (I) point 26) and it allows the fact-finding missions to conduct hearings if required and according to appropriate rules of procedure (1991 UN Declaration Annex (I) point 27).

These ad-hoc fact-finding missions can be categorised further depending on whether they are established by the Security Council, General Assembly, Human Rights Council (UNHRC) (and its predecessor Commission of Human Rights) or the Secretary-General (The 1991 UN Declaration gives mandate to all three UN bodies. Annex (II) point 7).

  1. Appointing UN bodies

The UNSC has the primary responsibility for maintaining peace and security under its chapter VII mandate (Article 34 UN Charter 1945; Uniting for Peace Resolution, 1950). Accordingly, the UNSC has established inquiry missions to investigate into human rights violations in the Former Federal Republic of Yugoslavia (1992) (UNSC resolution 780) and Darfur (2004) (UNSC resolution 1564), Central African Republic (2013) (UNSC resolution 2127) and the latest mission to inquire into the Da’esh violence (2017) (UNSC resolution 2379). The inquires under UNSC are more powerful because of the enforcement powers of the UNSC (Kaufman, 2018, p. 11). The Security Council also has binding powers to direct cooperation of the involved states in ensuring justice.

However, the UNSC has proved ineffective in many other conflicts because the veto-wielding permanent members have blocked attempts to investigate into nations where they have personal interests. For instance, in Syria, as many as ten resolutions proposing steps to ensure accountability for international crimes in the on-going Syrian conflict have been vetoed by at least one of the permanent members (Nichols, 2017). In the Rohingya refugee crisis, numerous UNSC resolutions have been vetoed because of China’s trade ties and strong relations with the Myanmar government (Nichols, 2018; Simon, 2018). Such deadlocks in Security Council has made it ineffective in providing a timely and strong response for prevention of large-scale violations.

To fill this gap, the UNGA has initiated independent inquiries into certain conflicts. However, the authority of UNGA was challenged by many states, with the Russian delegation at the forefront, when the UNGA created the International, Impartial and Independent Mechanism (IIIM) for Syria in 2016 to document violations of IHL and human rights violations and abuses in the Syrian Arab Republic since March 2011. The main grounds of challenge were that the General Assembly does not have the power to establish the IIIM having quasi-prosecutorial powers as it does not itself have those powers. Secondly, the Mechanism was challenged on the ground that it was not in conformity with Article 12 of the UN Charter given that the UNGA was not empowered to act if the UNSC was exercising its function on the same matter.

The UNGA does not have an explicit mandate per se under the UN charter, however, its authority can be derived from Article 12 of the UN Charter. On a reverse interpretation of Article 12, the General Assembly has the power to consider a matter related to the maintenance of peace and security, if the Security Council is not exercising its function ‘at the same moment’. Further, the 1950 Uniting for Peace resolution also makes a provision for when the Security Council fails to act because of lack of unanimity of permanent members and allows General Assembly to “consider matters consider the matter with a view to making recommendations to Members for collective measures to maintain or restore international peace and security” (Uniting for Peace Resolution, 1950; Role of General Assembly).

The UNHRC, as a subsidiary body of the General Assembly, has also stepped up to fill the gap left by a paralysed security council. Although a weaker option, the Human Rights Council has in many situations broadened its human rights mandate into IHL and ICL. The UNHRC has established multiple commission of inquiries and expert groups to investigate into atrocity crimes in Lebanon (2006) (UNHRC resolution S-2/1), Gaza (2009) (UNHRC resolution S-9/1), Cote d’Ivoire (2011) (UNHRC resolution 16/25), Libya (2011) (UNHRC resolution S-15/1), Occupied Palestine Territory (2012) (UNHRC resolution 19/17), Korea (2013) (UNHRC resolution 22/13), Burundi (2015) (UNHRC resolution S-24), Yemen (2017) (UNHRC resolution 36/31), Syria (2011) (UNHRC resolution S-17/1), Myanmar (2017) (UNHRC resolution 34/22).

The UNHRC Commissions, however, only have voluntary jurisdictions and can make non-binding recommendations to the UNSC and the member states to take steps. The practice of the General Assembly seems to suggest that it can address different, and usually more limited, aspects of the matter than the broad politico-military questions covered by the ‘situation’ on the agenda of the Security Council (Simma et al., 2012 as cited in Wenaweser and Cockayne, 2017, p. 223; I.C.J., 2004, p. 148).

Apart from these UN bodies, the UN Secretary General can also send fact-finding missions under Article 99 of UN Charter which provides that ‘the Secretary-General may bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security’. This provision has been interpreted as flexible and broad enough to permit the Secretary-General to exercise fact-finding powers (ECCHR, 2010, p. 2). Consequently, the Secretary General has invoked this power in Zimbabwe (2005) (Tibaijuka, 2005), Timor-Leste (2006) (Independent Special Commission of inquiry for Timor-Leste), and Fiji (2007) (UN Press Release, 2007) among others. Apart from these, the UN High Commissioner of Human Rights can also conduct its own fact-finding missions or provide assistance to the fact-finding missions established by the Human Rights Council or the Secretary-General (ECCHR, 2010, p. 4).

  1. Mandates

The mandates of the various fact-finding commissions established have varied over the years from finding facts to documenting IHRL violations to also including IHL and ICL violations. These mandates have further differed on the basis of the area, nature of violations and time period covered by them. Some missions had a general mandate to cover the entire country like in Syria whereas some missions have the mandate to cover only a part of the country like Darfur in Sudan (OHCHR Report, 2015, p. 9). Some mandates require missions to inquire into all violations of human rights or humanitarian law in a conflict situation. However, in some instances the language of the resolution was very specific as regards the nature of the violations that the commission/ mission was expected to investigate (OHCHR Report, 2015, p. 17). The 2012-2013 Palestine inquiry was set up by the OHCHR to look into the “limited implications of the Israeli settlements only on the civil, political, economic, social and cultural rights of the Palestinian people throughout the Occupied Palestinian Territory, including East Jerusalem” (Terms of Reference, Palestine, 2013).

Some other missions have specific mandates of investigating a particular incident for example the post-election violence in Cote d’Ivoire (UNHRC resolution 16/25); the Gaza-Flotilla incident (UNSC resolution S/2010/414); and  the Rohingya refugee crisis in Myanmar (UNHRC resolution A/HRC/39/64). Recently, the Security Council established the Iraq mission with a specific mandate of investigating violations by only one party to the conflict i.e. ISIL or Da’esh violence in Iraq. As a condition for full support of the Iraq government, the resolution specifically mentions that the investigation team will operate with full respect for the sovereignty and territorial integrity of Iraq and that its terms of reference will be approved by the government of Iraq (UN Press, 2017). In a way, this pre-requisite of state consent is abiding by the UN 1991 Declaration on Fact-Finding Missions discussed above. However, this one-sided approach has received criticism, with Global Justice Center stating that “Only prosecuting Da’esh fighters reeks of victor’s justice” and asking for more comprehensive mechanism to hold all perpetrators liable, including Iraqi, Kurdish and the Coalition forces (Global Justice Center, 2017). Human Rights Watch has observed that the “lack of impartial justice could undermine longer-term prospects for stability and development. An imbalance in accountability efforts threatens to open new divisions and could breed a resurgence of ISIS-like groups …” (Human Rights Watch, 2017).

Under the recent UN resolutions, more powers have been given to the newer fact-finding missions. The mandates of the earlier fact-finding missions were limited to investigations of facts and circumstances. This can be seen in the missions deployed in Burundi, Timor-Leste and Darfur among others (OHCHR Report, 2015, p. 18). This language has now evolved to state “investigate or examine alleged violations of international human rights and other international laws”. This is the case with Syrian Commission of Inquiry (2011), the Yemen Group of Eminent Experts (2017) and the Myanmar Independent Fact-Finding Commission (2017) (UN Library and Archives). This language is also found in the mandate of the newer IIIM Syria set up by UNGA in 2016, which is to “a) collect, consolidate, preserve and analyse evidence of violations of IHL and human rights violations and abuses and b) to prepare files in order to facilitate and expedite fair and independent criminal proceedings” (Terms of reference, Syria, 2011). The ISIL inquiry set in Iraq also has a similar mandate to collect evidence and share it with national courts or other investigating bodies (Terms of reference, ISIL, 2017). The purpose of these missions has shifted from finding presence of violations to finding evidence for violations (Similar point made in van den Herik, 2014, p. 535).

In addition to this, some commissions are further required to also identify the list of probable perpetrators responsible for the commission of international crimes. Both the UNHRC and UNSC have given such wide powers to various commissions in Darfur (2004), Guinea (2009), Libya (2011), Central African Republic (2014) and Syria (2016) (OHCHR Report, 2015, p. 21-22). In practice, however, most of these missions, with the exception of Guinea and Timor Leste, have kept the list confidential and handed it to the Secretary-General or the High Commissioner for Human Rights (OHCHR Report, 2015, p. 22). Many of these commissions have resulted establishment of a court or tribunal initiation of a criminal proceedings (Aksenova and Bergsmo, 2015, p. 3). The UN ad-hoc tribunals established for Yugoslavia, Rwanda, Lebanon and Cambodia were preceded by a Commission of Inquiry investigating in these regions. Findings of these commissions can become relevant in an on-going preliminary examination at the ICC (ICC, Office of the Prosecutor, 2015) or in referring a new situation to the ICC (In an interactive dialogue held by UNHRC, many states urged for a Security Council referral of the situation in Myanmar to the ICC, OHCHR Press Release, 2018).

Lastly, the commissions are also asked to provide recommendations on accountability measures with the view to end impunity. The Myanmar Commission has made a recommendation to prosecute the senior named military officials in an international criminal tribunal for genocide, crimes against humanity and war crimes (UNHRC resolution A/HRC/39/64, 2018), whilst the Syrian Commission of Inquiry has repeatedly called for the Security Council to “refer urgently the situation in Syria to the International Criminal Court, or to establish an ad hoc tribunal with relevant geographic and temporal jurisdiction” (UNHRC resolution A/HRC/32/CRP.2, 2016).

The overall mandates of the modern missions can thus be summarised as a) investigation and establishment of facts b) legal assessment of the fact c) collection of evidence for preparation of a criminal trial d) provision of recommendations to different stakeholders.

Concerns about Modern Fact-Finding Missions 

Standard of proof

Commissions differ from the judicial organs in that they are not bound by the ‘beyond reasonable doubt’ standard of proof, the principle of equality of arms, or the principle of individual criminal responsibility (Aksenova and Bergsmo, 2015, p. 4). In fact, many recent international fact-finding missions that have been established with a quasi-judicial or quasi prosecutorial role have lower evidentiary threshold. The 1899 and 1907 Hague Conventions are silent on the role of fact-finding missions as quasi-judicial entities and hence, are silent on the standard of proof required to be followed by these missions. The 1991 UN declaration focuses on their role in prevention of disputes and assisting the competent UN body and are again silent on the required standards of proof. The AP I to Geneva Conventions limits the functions of IHFFC to fact-finding and does not provide for standards of proof.

In the absence of any precedential guidance, many ad-hoc commissions have used a lower evidentiary threshold, such as “reasonable suspicion” (OHCHR Report, 2006, paras 12 and 110), “preponderance of evidence” (UNHRC resolution A/HRC/15/21, 2010), or “balance of probabilities” (e.g. UNHRC resolution A/HRC/19/68, 2012, para 7), while some other fact-finding reports articulate no standard of proof at all. For instance, the report of the Bahrain Commission of Inquiry makes no mention of the commission’s standard of proof. Additionally, the report of the fact-finding mission mandated by the United Nations Human Rights Council to gather information about the Israeli Flotilla raid of 2010 simply states, “The Mission found the facts set out below to have been established to its satisfaction”. (See, UNHRC resolution A/HRC/15/21, 2010, para 183). These standards are lower than the lowest standard of ‘reasonable grounds to believe’ required at the ICC to issue arrest warrants.

The recent commissions have realised this gap and the standard of proof used by the commissions under UNHRC with a mandate to collect evidence and identify perpetrators has been elevated to ‘reasonable grounds to believe’ (UNHRC resolution A/HRC/40/70, 2019). However, the Hague Justice Portal has sceptically mentioned that “this standard as understood and employed by the fact-finding mission might not necessarily be congruent with the standard required by the ICC”. The IIIM Syria established by the UNGA has acknowledged the fair trial concerns and their terms of reference mentions that “these procedures shall be based on international law and standards, notably the right to a fair trial and other due process provisions under international human rights law, as well as on the jurisprudence, procedural standards and best practices of the international criminal tribunals” (Terms of reference, Syria, 2011). It remains to be seen how these standards would be incorporated by the IIIM in their investigation as they have not released their report yet. The UNSC sponsored commissions, on the other hand, have a higher standard of proof. The UNSC inquiry in Yemen provided an opportunity to reply to the states, entities and individuals implicated for crime patterns to get a balanced view (UNSC resolution S/2019/83, 2019).

Premature Determination of Accountability

Most modern fact-finding missions have a monitoring mandate, but some also go a step further in ensuring accountability and analysing applicability of international laws. These fact-finding missions, acting as quasi-judicial bodies, are engaging in judicialisation of factual findings (van den Herik, 2014, p. 508). Questions have been raised about the blurring lines between international criminal courts and international fact-finding mission (Grace and Coster Van Voorhout, 2014, p. 4-5). The reports documenting incidents of violations of IHL and categorising as them as crimes against humanity, war crimes or genocide are based majorly on victim and witness interviews and analysis of other NGO and UN reports. Many of these reports are not based on rigorous methodology as the documentation of many violations have no proof or sources attached to it. This is the case with most reports of the Syrian and Myanmar inquiries which provide almost no sources or annexes for their information. The fact-finding missions, therefore, do not necessarily provide conclusive evidence but only create the base for a criminal prosecution and which can be referred to by the ICC Prosecutor to start an investigation. This raises the question of utility of such accountability documentation in criminal trials. In the request to initiate an investigation on the situation in the Republic of Côte d’Ivoire, the ICC Prosecutor relied considerably on the independent inquiries reports to gain information on the exact locations where crimes were committed, the pattern of attacks, and indicate indicia of state involvement through the instigation of xenophobia and the fanning of ethnic and political hate (ICC, Office of the Prosecutor, 2011, para 29). However, the ICC pre-trial chamber in the Laurent Gbagbo case had raised concerns about the ICC Prosecution’s sole reliance on the NGO reports, UN reports, and press articles and stated them as being “anonymous hearsay” from outside entities (ICC, Pre-Trial Chamber I, 2013, p. 17).

While maintaining privacy and confidentiality of sensitive information is crucial, documenting facts as violations of IHL without hearing the defence side clouds the credibility of these reports. It goes against the principle of presumption of innocence (Grace and Coster Van Voorhout, 2014, p. 19) and the right to legal representation of the defendant. Other issues have also been raised regarding the lack of expertise and skill in the information gathering methodology and improper ‘chain of custody’ of evidence (Grace and Coster Van Voorhout, 2014, p. 19). In such cases, having a multidisciplinary team covering different professions of investigators, forensic experts, anthropologists and legal experts is more beneficial than an exclusive team of only legal experts and judges. Lessons can be learned from the IHFFC in this regard which provides for a diverse team of experts to form its Commissions.

Further, the commission reports are also published with public access casting a prejudice in minds of judges and other stakeholders in any future criminal proceedings. Hence, the reports of fact-finding missions are a premature pronouncement of accountability without proper adjudication.

State Consent

The 1991 UN Declaration provides for consent of States to be taken before initiating an investigation into their territory (1991 UN Declaration Annex (I) point 6). The IHFFC model is also based on consent of the parties involved in the conflict. Keeping in mind the quasi-judicial role of fact-finding missions, the basis of admittance of cases in international criminal courts and the International Court of Justice has also been state consent. However, the recent trend for fact-finding missions has been to focus more on accountability and compliance with international law disregarding the will of the States. These can also be seen as a measure to overcome the harsh reality that, in most cases, states are opposed to any form of investigation. A perpetual issue highlighted by these commissions’ reports has been limited access to large parts of Yemen (UNSC resolution S/2019/83, 2019) and denial of access by the Syrian and Myanmar government (UNHRC resolution A/HRC/39/64, 2018; UNHRC resolution A/HRC/40/70, 2019).

The Myanmar and Syrian Governments have opposed the establishment of Inquiry Commission to investigate into their internal conflicts as a breach of their territorial integrity and sovereignty (UNHRC resolution A/HRC/39/64, 2018; UNHRC resolution A/HRC/40/70, 2019). The Da’esh inquiry could be set up with unanimous agreement among UNSC members and the Iraq government because the Security Council delineated the scope of the inquiry to only Da’esh violations and not interfere with Iraq’s sovereignty and territorial integrity. Such brazen opposition to presence of commissions in their territory rules out any chances of state cooperation and harms the credibility of these reports (Kaufman, 2018, p. 18).

Way Forward – Need for Policy Development 

International fact-finding missions are a bridge between enforcement of IHL and the political will (or the lack thereof). Since 1899, the inquiry commissions have developed into various models and variations have been introduced based on the nature of the conflict, type of violations and purpose of the missions. However, all of them have few recurring characteristics which can be extracted to define the fact-finding missions. These institutions are established under international laws, conduct ad hoc fact-finding, are impartial and independent and issue non-binding reports. The mandates of these missions are broadly defined leaving room for mission member’s interpretation and the work done by these missions has differed greatly. The earlier fact-finding missions limited themselves to factual analysis and some even made clarifications on their own identity as not being a law-applying authority (van den Herik, 2014, p. 529). The recent missions, however, have shifted its focus towards legal characterisation of the facts and ensuring accountability (OHCHR Report, 2015, p. 20).

To a certain level, the ad-hoc nature of fact-finding missions is beneficial because it allows their formation and role to be tailored to specific situations. However, with the growing number of fact-finding committees being set-up in the last decade, there is a chance of fragmentation of their findings and analysis of international law and accountability. This is more so in situations where multiple inquiry commissions have been set up by competing UN bodies caught in the New York – Geneva paradigm. For instance, multiple inquires have been launched into the Syrian conflict by the UN Security Council, the UN General Assembly and the UN Human Rights Council. While the Security Council inquiry was limited to the investigation on use of chemical weapon (OPCW Press Release, 2017), the Commission of Inquiry set up by the UNHRC in 2011 and the IIIM by the UNGA in 2017 have overlapping and complementary mandates. In an event that IIIM Syria set up by UNGA comes to a contrasting analysis of the situation than the Syria Commission of Inquiry, it can put a dent on the evidentiary value of the information in a criminal proceeding in the future. The same is the case with the two Myanmar inquiries set up by UNHRC which are overlapping with the national inquiry set up by the Myanmar government (Abbott, 2019).

Other criticism raised are that they lack predictability, as they are constituted on an ad hoc basis without proper continuity or institutional memory (Aksenova and Bergsmo, 2015, p. 3). There is no clarity or uniformity on the criminal standards of proof it requires to follow. There are also other fair-trial concerns of one-sided documentation and the increasing individual criminal accountability orientation without equality of arms. Lack of state consent requirement can also question the reports of the commissions to a certain extent, especially if deployed in civil wars or international conflicts where both sides have different narratives and justifications for their actions.

Despite the various fair trial criticisms surrounding the fact-finding missions, the need remains for involvement of fact-finding missions in conflict situations. The data gathered by the fact-finding missions is based on victim and witness interviews and evaluation of communications by local NGOs and other community leaders along with international NGO or UN reports. This provides a first-hand account of the armed conflict, ground conditions of victims and the level of involvement of different parties to the conflict. Because of the procedural limitations, the ICC Prosecutor might not be able to conduct prompt investigation to collect fresh and early evidence and the evidence can be lost forever (Grace and Coster Van Voorhout, 2014, p. 20). The fact-finding missions, then, become crucial.

The issue, therefore, is of setting proper guidelines and rules of procedures to standardise the functioning of modern international fact-finding commissions. Both the Hague Conventions and the 1991 UN declaration have become outdated and do not sufficiently address the evolved orientation of the modern fact-finding missions. As early as 1968, the UN had stressed on the importance of well-defined rules of procedure for the orderly and efficient discharge of ad-hoc working bodies concerned with human rights (UNGA Resolution X, 1968, p. 12).

The rules of procedure should set down their scope, composition of the commission, standard of proof to be employed, the handling and sharing of information and sensitive data, victim and witness treatment, and should also encompass principles of fair trial, due process, equality of arms, and rights of accused amongst others. These rules of procedure should be developed keeping in mind the practical issues present in a conflict or post-conflict society of victim and witness protection, re-traumatisation of victims upon repeated questioning, sensitivity for sexual and gender-based violence etc. Apart from this, they should also incorporate the basic principles and standards of human rights and IHL that fact-finding missions need to adhere to, namely, do no harm, independence, impartiality, transparency, objectivity, confidentiality, credibility, visibility, integrity, professionalism and consistency (OHCHR Report, 2015, pp. 33-35).

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The Final Frontier: R2P and Implementation

Dr Jess Gifkins, University of Manchester, UK

Dr Jess Gifkins has worked at the University of Manchester since 2017, having previously worked at universities in the UK and in Australia. Her research is on global governance in relation to questions of peace and security. She studies decision-making practices within the United Nations Security Council, and have published research on the international response to crises in Darfur, Libya and Syria. She is also interested in debates on the responsibility to protect (R2P). 

R2P has catalysed debate and become remarkably embedded as a feature of International Relations in less than two decades. The early stages of ‘what R2P is’ from the ICISS report in 2001 through to the agreement by all states that they accept their responsibility to protect in 2005 appears linear in hindsight, although it was highly contested at the time (Bellamy 2009; Evans 2008). R2P was then reframed as three pillars by Ban Ki-Moon, which has left a lasting impact on the way R2P is understood. Once there was broad acceptance on ‘what R2P is’, debates followed over what level of support it enjoys from states (for opposing perspectives on this see Gifkins 2016; Hehir 2016). Alongside this there has been extensive debate around whether R2P is a norm, and what type of norm it is. It has been described as a “complex norm” by Jennifer Welsh (2013: 384), by Alex Bellamy as a “collection of norms” (2015: 62), and more recently by Alex Bellamy and Edward Luck as “an established international norm” (2018: 39). Beyond these foundational debates, scholarship on R2P has now shifted to the most critical issue: implementation.

The deceptively simple goal of R2P – preventing mass atrocity crimes – belies huge complexity around domestic governance, deescalating political disputes, inclusion of diverse groups, and best practices on the roles of local, national, regional, and international bodies. Luckily there is a great new book out by Alex Bellamy and Edward Luck which, ambitiously, addresses all of these challenges (2018). The book is titled ‘The Responsibility to Protect: From Promise to Practice’ and it is essential reading for anyone interested in the implementation of R2P.

I will focus on some of the key contributions of this book here. Between the two of them, Bellamy and Luck span more than a quarter of a century of research, advocacy, and diplomacy on R2P, Bellamy as Director of the Asia-Pacific Centre on R2P and consultant to the UN Office on Genocide Prevention and R2P, and Luck as the UN’s first Special Advisor on R2P and architect of the three-pillar approach. The book begins with the kind of history of R2P which can only be told from some distance. Retelling the origin story of R2P the authors highlight how the mandate of the original ICISS report swayed debates towards questions of humanitarian intervention, and that this has had a lasting, and detrimental, impact on focussing debates towards the use of force and away from atrocity prevention.

Drawing from this, the authors stress the importance of prevention, which shifts the central focus of R2P away from the United Nations and towards the practices of states and non-state actors. As Bellamy and Luck explain, “the cornerstone of prevention is the building of an inclusive, non-discriminatory form of politics capable of managing diversity constructively” (2018: 121). Throughout the book they remind us that R2P, under pillar one, applies to all states all the time, and that effective governments prevent violent conflict between groups, as a regular part of governance, whether they consider this R2P or not.

The book highlights a series of aspects of R2P where causal relationships – such as between early warning and action – are not as straightforward as it might have seemed, and they stress the need for further research in these areas. On early warning they suggest that the issue is often not simply of getting timely analysis to the right people, and that early warning is only likely to help if there is already some inclination to act. Similarly, the case study analysis in the book – spanning eight situations including historical conflicts such as Rwanda and Srebrenica and more recent conflicts in Kenya and Côte d’Ivoire – suggests that Security Council involvement and peacekeeping are not necessarily factors that will prevent mass atrocity crimes. Bellamy and Luck find that the ‘successful cases’ they consider in the book all had atrocity prevention as a core priority from local and international actors. They draw from this that “making a conscious choice would appear to make a difference”, but that while this was a necessary factor it was not sufficient on its own (2018: 171). They stress the need for further research on tools that deescalate conflicts and recommend studies that compare large numbers of cases.

In reflecting on R2P as it currently stands, Bellamy and Luck conclude that “decision-making sovereignty remains the single greatest obstacle to R2P implementation today”, by which they mean the authority that states have to decide to take action (or not), as opposed the early R2P debates where it was assumed that territorial sovereignty presented the biggest obstacle (2018: 107). A more banal barrier – but one that remains consequential – is that UN peacekeeping operations rarely have enough force enablers such as helicopters, ground transportation, and intelligence capabilities (2018: 152). For example, lack of helicopters has been an ongoing challenge for the UNAMID peacekeeping operation in Darfur, a region the size of France. For those of you looking for ways to exercise your individual responsibility to protect you could lobby your governments to better equip peacekeeping operations. Without this equipment, even when they are deployed within a conflict, peacekeepers are unable to respond to incidents in a timely manner.

For those interested in the final frontier of R2P – implementation – Bellamy and Luck’s book is essential reading. For additional reading in this critical area there is a forthcoming edited book called ‘Implementing the Responsibility to Protect’ edited by Cecilia Jacob and Martin Mennecke (2019). Keep an eye out for it when it is released in September.

The R2P Student journal – now in its third year – is an excellent model of student-led research and advocacy. If you are a student with an excellent essay of less than 6000 words do consider submitting to the journal. It’s a great way to reach a broader audience with your ideas (beyond the one or two academics who grade your essays). If you are a lecturer teaching courses connected to R2P do encourage your students to submit. It’s a great way to build skills in a new generation of researchers and to demystify the peer-review process.

References

Bellamy, Alex J. 2009. Responsibility to Protect: The Global Effort to End Mass Atrocities. Cambridge: Polity Press.

Bellamy, Alex J. 2015. The Responsibility to Protect: A Defence. Oxford: Oxford University Press.

Bellamy, Alex J. and Edward C. Luck. 2018. The Responsibility to Protect: From Promise to Practice. Cambridge: Polity Press.

Evans, Gareth. 2008. The Responsibility to Protect: Ending Mass Atrocity Crimes Once and For All. Washington D.C.: Brookings Institution Press.

Gifkins, Jess. 2016. ‘R2P in the UN Security Council: Darfur, Libya and Beyond’. Cooperation and Conflict 51(2): 148-165.

Hehir, Aidan. 2016. ‘Assessing the influence of the Responsibility to Protect on the UN Security Council during the Arab Spring’. Cooperation and Conflict 51(2): 166-183.

Jacob, Cecilia and Martin Mennecke, eds. 2019. Implementing the Responsibility to Protect. Global Politics and the Responsibility to Protect. Routledge.

Welsh, Jennifer. 2013. ‘Norm Contestation and the Responsibility to Protect’. Global Responsibility to Protect 5(4): 365-396.

The International Criminal Court’s Lack of Credibility: What Consequences for the Process of Convicting Perpetrators of Mass Atrocities?

By Salomé Wyns

Salomé Wyns is a recent graduate in International Relations and Politics at the University of Sheffield, UK.

Abstract

February 2018 marked the twentieth anniversary of the Rome Statute which established the International Criminal Court (ICC). The ICC has, since 2002, taken up the daunting challenge of meting out international criminal accountability. As a permanent judicial institution, the ICC seeks to end impunity for the most serious crimes of international concern, namely genocide, crimes against humanity, war crimes and crimes of aggression (UN General Assembly, 1998). Since its implementation sixteen years ago, the ICC has faced a range of criticisms regarding its effectiveness and its alleged bias against African leaders. The purpose of this paper is to identify the factors contributing to the International Criminal Court’s lack of credibility –along the lines of impartiality and independence- and assess how these factors may hinder the process of conviction of perpetrators of mass atrocities. Through an analysis of the case of Kenya (2007-2008), this paper will argue that the ICC’s lack of credibility stems from inherent structural contradictions that limit the Court in its prosecutorial independence and impartiality, rendering it vulnerable to politicisation and manipulation by states, thereby enabling them to justify non-cooperation.

Introduction

In recent years, the credibility of the International Criminal Court (ICC) as an impartial and independent institution has been challenged by African leaders, scholars and human rights advocates alike (Tiemessen, 2014: 444). The perception of the ICC as a credible institution by states and other international actors is crucial to its success, as the Court largely depends on the support of these actors. The focus of this paper, divided into four sections, will be on the ICC’s ability to safeguard its reputation as an impartial and independent judicial institution. The first section briefly provides a background of the ICC, defines the term ‘credibility’ and looks at the claim of inefficiency against the Court. The second section examines the ICC’s lack of police enforcement and its ties with the Security Council to argue that this association leads to politicisation. The third section focuses on the ICC’s case selection partiality and the bias and the double standards that stem from it. Finally, the fourth section turns to the case of Kenya to illustrate the negative effect of the ICC’s lack of credibility on state cooperation.

Background

The Rome Statute was adopted by 120 states in July 1998 and entered into force in July 2002 (Wouters and Basu, 2009: 11). The implementation of a permanent international criminal court prosecuting humanity’s worst crimes constitutes a bold challenge to state sovereignty and was, therefore, likely to generate a certain degree of opposition (Bosco, 2012: 4). Since then, lengthy and costly trials resulting in few convictions have resulted in criticisms concerning the ICC’s credibility and efficiency.

The charge against the ICC

Before proceeding, it is necessary to define the word ‘credible’ in the context of this paper. In the case of the ICC, a credible institution would be independent and impartial, ultimately leading to efficiency (Gegout, 2013: 801). Indeed, if the perception of the ICC as an untrustworthy institution impacts its ability to convict perpetrators of mass atrocities, increasing that credibility depends on one hand on the ICC’s ability to act independently from states, and on the other, on its ability to deliver justice in a fair and impartial manner (Gegout, 2013: 800). However, one must be cautious not to make the assumption that the ICC’s conviction rate is entirely dependent on the Court’s level of credibility (see Davenport, 2014). Measuring the effectiveness of international institutions remains a complex challenge; as such, a number of factors can account for the ICC’s low conviction rate. Firstly, the Court only has territorial jurisdiction in the states parties to the Rome Statute and can only investigate crimes committed after 2002. This significantly limits the ICC’s ability to provide universal justice. Secondly, war crimes cases are extremely complex in nature and require time, since a delay in proceedings is essential to allow the truth to emerge (Whiting, 2009: 335). Moreover, a lack of cooperation usually generates delays in judicial proceedings and can lead to the complete collapse of a case, as with the case of Kenya (2007-2008). Finally, the ICC is a court of ‘last resort’ which means it can only intervene when national courts themselves lack the ability to prosecute perpetrators. As former prosecutor Luis Moreno-Ocampo, cited in Nichols (2016: 32), states:

‘as a consequence of complementarity, the number of cases that reach the Court should not be a measure of its efficiency. On the contrary, the absence of trials before this Court, as a consequence of the regular functioning of national institutions, would be a major success.’

One must also be mindful that the institution is fairly young and will only be able to build credibility over time (Cassesse, 1999: 145). Indeed, the creation of such court is truly revolutionary and changes at the international level happen incrementally. It is indisputable that the quality of justice the ICC delivers should continue to be scrutinised, as effectiveness is the only path for the Court to be sustainable. However, the ICC’s credibility should not only be determined by its conviction rate but by the legitimacy of the proceedings, and by the Court’s ability to uphold principles of independence and impartiality, characteristics which will be explored in the next sections. Nonetheless, it can be concluded that the perception of the ICC as an inefficient institution plays a role in undermining its credibility, as each failure undermines the Court’s ability to deliver justice in the eyes of the victims, as well as in those of the international community.

The politicisation of the ICC

This section will argue that the ICC’s dependence on external political actors allows special interests to permeate and influence the law. This dependence ultimately weakens the ICC’s credibility as an independent institution. Indeed, the Court is highly dependent on state cooperation as it does not possess any police force or effective means to enforce states’ cooperation (Kaye and Raustiala, 2016: 7). Whether it be to investigate on the ground, arrest suspects or provide evidence, cooperation from states is crucial. Vinjamuri (2014: 277) labels this phenomenon ‘the authority paradox’. On one hand, the ICC’s authority and credibility reside in the assumption that justice must be independent from politics. But on the other hand, the ICC is structurally dependent on states to enforce its mandate (Vinjamuri, 2014: 277). Although full cooperation with the Court in its investigations and prosecutions is required under Article 86 of the Rome Statute (UN General Assembly, 1998), the ICC’s authority has been blatantly defied by states on multiple occasions.

This structural weakness compels the ICC to seek assistance from powerful states that have coercive power (Kaye and Raustiala, 2016: 7). The challenge for the ICC therefore becomes to balance two opposing inclinations: restraining state power, while relying on their cooperation at the same time. Instead of enhancing the Court’s legitimacy and power, it has been argued that the United Nations Security Council’s (UNSC) special rights of referral under Chapter VII of the UN charter, as well as their right to defer proceedings in the interests of international peace and security under Article 16 of the Rome Statute, open the door for politicisation and double standards (Tiemessen, 2014: 454). This association reflects the strategic political constraints that entangle the UNSC and state parties’ self-interests. This was especially obvious in the early days of the institution when the prosecutor’s office avoided conflicts that involved major-power interests –the cases of Afghanistan and Palestine for instance- (Bosco, 2012: 78). As Bosco (2012) argues, even though major powers like the United States do not directly control international institutions, by adopting ‘marginalising’ or ‘controlling’ behaviours, powerful states can influence the Court. The United States has had a wavering position towards the Court, but some argue that, more recently, it has used the Court to target rogue states such as Sudan and Libya – neither of which are parties to the Rome Statute- (Mamdani, 2008). Particularly in the aftermath of NATO’s intervention in Libya, the proximity between the Security Council, state interests, and international criminal justice became too close for many of the ICC’s proponents. This has quickly resulted in allegations that the ICC had become associated with a Western military policy of regime change (Vinjumura, 2014: 284). Many now worry that the Rome Statute will be used to breach sovereignty through intervention (Mackie, 2012:138). The special privileges granted to a small number of powerful states by international institutions creates obvious tensions with a sovereignty norm that stipulates equal status to all states. The fact that the ICC is intertwined with the UNSC’s network of political and logistical support undermines its independence and ultimately is an important factor for the ICC’s loss of credibility.

An African bias?

The second factor resulting in the ICC’s lack of credibility is the selectivity in its case selection, which has resulted in an almost exclusive focus on African perpetrators. The mandate of the ICC is very ambitious, but a single institution cannot investigate all situations under its jurisdiction or prosecute the full range of criminal responsibility within them. Therefore, a degree of selectivity is necessary for the ICC to operate. However, the ICC’s apparent focus on Africa -every one of the 32 criminals ever indicted have been African men (Elsheikh, 2015)-clashes with its alleged global mandate. It is in this context that African leaders, such as Paul Kagame, have been very vocal, accusing the ICC of systematically targeting Africa whilst overlooking crimes perpetrated in other parts of the world (Mugabi, 2016). They argue that the ICC reflects a western bias, some even going as far as claiming that the Court is a tool of neo-colonialism (Kenyatta, 2013). According to that argument, the ICC is being used by western countries to exercise influence on the internal affairs of African countries. Mackie’s (2012) analysis of the ICC website’s language is useful to illustrate this argument. On the ICC’s website, fifty-five separate documents contain the word ‘barbaric’ whereas the word ‘savage’ appears forty-seven times in the context of human rights violations (Mackie, 2012: 134). These terms create a dichotomy of ‘us versus them’ and dehumanises perpetrators (Sagan, 2010: 16). The negative connotations of these words and the image of the external actor intervening to save helpless victims from heartless perpetrators seriously hearken back to rationalisations of colonialism. Such rhetoric strengthens African leaders’ argument that the ICC is a form of neo-colonialism institutionalised through international criminal law (Mackie 2012: 134).

However, the ICC’s focus on Africa can, once again, be explained by structural limitations. Firstly, as argued in the second section, the partnership between the ICC and the Security Council creates double standards. Many African countries do not have powerful protectors in the Council—unlike Syria, for example, where Russia has been blocking the ICC’s efforts to prosecute crimes committed there (Rothmyer, 2012). There is also the fact that many countries accused of human rights abuses (the United States, China and Russia amongst them) have refused to be a party to the ICC statute, making it unlikely that their alleged crimes will ever be prosecuted. It is therefore felt that the ICC is going after Africans by default (Rothmyer, 2012). This has resulted in a disengagement by African countries and leaders who feel unjustly targeted. The backlash first surged when an arrest warrant was issued against Sudanese President Omar Al-Bashir in 2009. The hostility between the Court and the African Union (AU) then reached new heights when ICC suspects, Uhuru Kenyatta and William Ruto, were elected president and deputy president of Kenya, and a potential massive pull-out from the ICC was considered.

There are also arguments against the potential bias of the Court. Firstly, considering that African States constitute the largest regional grouping of state parties, it was statistically more likely that prosecutions would arise from African states. Indeed, in the wake of the genocide in Rwanda, and given the long history of war crimes and impunity in the continent, African countries had a clear interest in joining an international criminal court. Secondly, judging the ICC to be more competent and impartial than their own national courts, many African countries have referred cases to the Court themselves. Hence, these referrals cannot be regarded as external interventions (Mendes, 2010: 168). Therefore, although the Court does reflect the double standards that are deeply rooted in global governance structures (Bosco, 2014: 189), the ICC’s case selection needs to be understood in the context of these limitations. Nonetheless, these allegations of racial bias and neo-colonialism, whether accurate or not, have significantly damaged the ICC’s credibility and hindered cooperation from African states.

The consequences: The case of Kenya

The forceful campaign led by ICC indictees Uhuru Kenyatta and William Ruto was designed to portray the ICC as an untrustworthy and biased institution and thus delegitimise its authority. This reflects the degree of politicisation involved in ICC cases and the negative effect it has on cooperation. In March 2010, the ICC opened investigations on six individuals for their involvement in the ethnically targeted violence that followed the 2007 Kenyan election (Mueller, 2014: 27). The post-election violence left thousands dead, injured and displaced (Claire, 2012: 641). However, the Kenyan government failed to deliver justice for victims. It was thus the first time a case was referred by the prosecutor himself (‘proprio motu’). Moreover, the judges and the prosecutor tried to stay away from Kenya’s domestic politics (Tiemessen, 2014: 456). However, despite these efforts to remain independent and impartial, rather than accepting the ICC’s authority, Kenyatta and Ruto joined forces to run for the presidency while campaigning against the ICC. Kenyatta employed a populist rhetoric to discredit the Court’s operations in Kenya and ultimately won the election. By recalling Kenya’s colonial past, Kenyatta managed to spin the charges into a powerful narrative implying that the ICC was a ‘toy of imperialism’ (Kenyatta, 2013). Kenyatta claimed before African Heads of State and Government that, since the Court’s budget is largely funded by the EU, ‘Western powers are the key drivers of the ICC’ and that ‘the threat of prosecution’ by this Court is being used as a tool to make ‘pliant states execute policies favourable to these [Western] countries’ (Materu, 2014: 221). Similarly, at the same AU Summit in October 2013, Kenyatta accused the ICC of ‘race-hunting’ Africans (Kenyatta, 2013). Consequently, whereas the African Union’s mediation process following the 2008 violence in Kenya was seen as a locally owned process, granted with support and legitimacy, those seeking to undermine the Court portrayed the ICC’s intervention as an externally driven process imposed by the West (Juma, 2009: 407).

Assessing whether or not the ICC has perceived credibility in Kenya and elsewhere in Africa is highly subjective, but some elements prove that Kenyatta’s campaign has clearly been effective in hindering cooperation with the Court. Indeed, in addition to building domestic support and winning the election, Kenyatta used his newly won platform as President to discourage the African Union from cooperating with the ICC (Mueller, 2014: 31). Between 2011 and 2012, Kenya aggressively lobbied African leaders to get support from the AU in their demand for a UN deferral of ICC investigations and their transfer back to Kenya’s domestic courts (Mueller, 2014: 31). Whilst their efforts were unsuccessful, Kenyatta’s campaign did resonate with the AU. In September 2013, a potential mass pull-out by African countries was even considered by the AU (Mueller, 2014: 32). South Africa and Burundi’s decision to withdraw from the ICC in October 2016 (Sieff and Mahr, 2016) marks another blow to the ICC’s deteriorating relationship with Africa. Cooperation with the Court has also been put at risk by the alleged attempts of intimidation of witnesses for the prosecution (Mueller, 2014: 33). Kenyatta and Ruto successfully postponed their trials until after they gained power. Finding themselves without witnesses, key documents, or political support, prosecutors had no choice but to withdraw charges in December 2015. In September 2016, the ICC issued a finding of non-cooperation to the ICC’s Assembly of States Parties. The failure of the case has resulted in the Kenyan victims feeling a ‘growing loss of faith in the ICC’ (Mueller, 2014: 38). Ultimately, justice for thousands is still to be delivered. Neither Kenya nor the ICC has met its responsibility to hold the perpetrators of war crimes accountable, showing yet again, that politics trumps justice. This attempt to undermine cooperation with the ICC can largely be attributed to the unique structure and jurisdiction of the ICC, which renders it vulnerable to the political interests of those who instrumentalise it. The case of Kenya highlights the ICC’s limited enforcement powers, especially when political power and non-compliance combine to threaten the law (Mueller, 2014: 38).

Conclusion

This essay has attempted to identify the causes of the ICC’s lack of credibility and its effect on the non-cooperation of states by examining the case of Kenya. It has been argued that structural weaknesses in the Rome Statute regime have limited the ICC in its independence and partiality, ultimately weakening the Court as a credible and effective institution. Without support and cooperation, the ICC will perpetuate the vicious circle of loss of credibility and will ultimately be less effective in meting out accountability and positively affecting conflict resolution. At its heart, the ICC reflects deep tensions between peace and justice, politics and law, and power and norms. It embodies strong ambitions and has a broad set of objectives, and balancing legal understandings and political interests, while maintaining credibility and support, will remain the ICC’s biggest challenge to ensure universal human security.

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Transitional Justice: A Tool of Elite Manipulation? A Constructivist Analysis of Gross-Abuse in Kenya and Rwanda

By Alisha Lakhani

Alisha Lakhani is a graduate in Arabic and International Relations from the University of Leeds, with a keen interest in constructivist norm theory and transitional justice.

Abstract

Since its inception in the 1990s, significant concerns have been raised regarding the implementation of transitional justice and the abuse of its mechanisms. The purpose of this paper is to determine the extent to which the noble ambitions of transitional justice have been co-opted by political elites to serve vested interests. Whilst gross abuse of state institutions and processes is not a new phenomenon, using a constructivist lens unveils the sheer scope of elite manipulation. In this paper, norm theory is used to analyse transitional justice mechanisms in Rwanda following the genocide in 1994, and in Kenya following the outbreak of electoral violence in 2007. The paper addresses the abuse of transitional justice mechanisms through positing a three-tiered narrative which explains how leaders consolidate personal political power as well as party dogma. Firstly, elites create a state-directed version of truth which is later institutionalised as collective memory, and ultimately history. Secondly, all opponents are characterised as the ‘other’ and enemies of state through manipulating these mechanisms. Finally, notions of justice are mobilised to claim ‘liberation’ is under threat to justify elongation of political mandates. This paper demonstrates how elites mobilise transitional justice to serve their own agenda. Fundamentally, this paper reiterates the fact that transitional justice is a definitional project with both causal and constitutive effects, which render it vulnerable to abuse.

Introduction

This essay argues that transitional justice mechanisms are heavily instrumentalised by political elites in order to serve their vested interests. This conclusion was reached through an examination of the transitional justice processes that were introduced in Rwanda following the 1994 genocide and in Kenya following the 2007 post-election violence. A constructivist theoretical paradigm is utilised as it offers interesting insights into the ways in which transitional justice mechanisms are employed by elites to carry out their agendas, as well as the implications of such practices. Constructivists argue that although there is an objective reality, it is not simply a product of physical manifestations; it is also socially constructed by ideas and other forms of cognitive structures (Adler, 1997, pp. 319). With this in mind, it is necessary to consider the nature of justice and the mechanisms within which it manifests. As Nouwen and Werner (2015, pp. 176) highlight, “numerous articulations of justice co-exist, overlap and compete”. Furthermore, Acharya (2013, pp. 467) argues that ideas and norms, in this case, the norm of ‘justice’, have causal and constitutive effects. Therefore, it is necessary to consider who is responsible for the articulation of this norm as well as its reproduction, as it represents a form of agency.

Historically, transitional justice mechanisms adopt either a restorative approach, which can entail Truth and Reconciliation Commissions (TRCs) and provision of amnesties, or a retributive approach which can entail international, national and grassroots criminal tribunals with the end goal of punitive punishment, although there are elements of both in most transitional systems (Mallinder, 2007, pp. 208). If one considers the constructivist notion that there is rarely such a thing as value-free knowledge (Adler, 1997, pp. 336), an important question arises pertaining to the scope of elite manipulation and the extent to which such manoeuvrings have impacted and infiltrated norms of transitional justice and their application. It is argued that one-way in which transitional justice mechanisms are utilised is by constructing a version of ‘truth’ which downplays the serious transgressions of the political elite as well as those of the parties they represent. Elite political actors attempt to institutionalise this version of ‘truth’ to form a collective memory or ‘history’, which is particularly problematic as those “who control the past, control the future” (Orwell, 2004, pp. 44). Another way in which elites mobilise transitional justice mechanisms is through creating an enemy or an ‘other’. This is a concerted strategy employed by political elites to neutralise any perceived threat; whether that is domestic or international, material or fictitious. Finally, political elites also manipulate the ambitious, and some may contend, utopian aims of transitional justice (Campbell and Turner, 2008) to claim that it has not been fully actualised. This allows elites to elongate the transitional period, as well as their political mandate, by claiming that the process of liberation is under threat and that a particular party or a politician alone possesses the skill and foresight to protect it (Beresford et al., 2017). This paper argues that due to elite manipulation, transitional justice mechanisms are undermined and, as a result, lasting peace and reconciliation has yet to be actualised both in Kenya and in Rwanda.

Transitional Justice: A Discursive Tool

According to McAuliffe (2017, pp. 44), “transitional justice does not happen in a political vacuum, it always challenges an existing order that did not permit such progress to develop organically”. As this paper shows, in Kenya and Rwanda, political elites have re-articulated notions of justice to safeguard against any assault on their political power and authority. As aptly iterated by Miller (2008, pp. 267), transitional justice is, at heart, a “definitional project” and therefore it is subject to the whims and caprices of those who are part and parcel of its establishment, institutionalisation and enforcement. However, in relation to political elites, manipulation of transitional justice mechanisms is not simply a whimsical act devoid of intent; it is rather a concerted strategy employed to entrench personal power, cement party dogma and to secure political capital and legitimacy. As this paper argues, in Rwanda and Kenya, this is actualised through the creation and reproduction of a singular, prescribed narrative of ‘truth’. Through its replication and institutionalisation, this version of truth is characterised as collective memory, ergo history. This is of paramount importance as history frames the past and has the capacity to frame our present and our future.

One such transitional justice mechanism employed to create and promulgate state-directed versions of events are the gacaca courts in Rwanda. These were introduced by the Rwandan Patriotic Front (RPF) in 2002 in order to facilitate the expression of ‘truths’, to promote reconciliation, to eradicate the culture of impunity, in addition to expediting the trials of suspected génocidaires (Scanlon & Motlafi, 2010, pp. 302). However, it is argued that despite these lofty aims of the gacaca courts, they are not much more than a vehicle to disseminate state-imposed versions of events. This argument is supported by Corey and Joireman (2004, pp. 86) who claim that the jurisdiction of the gacaca courts were deliberately limited by the regime in order to exclude testimonies of Tutsi atrocities, thereby exonerating Tutsi and RPF violations which includes the massacre of civilian Hutu populations, during the genocide as well as after the establishment of the new regime. The characterisation of Tutsi transgressions as a ‘war crime’ and Hutu offences as ‘a crime against humanity’ is part of a concerted strategy to downplay the gravity of RPF and Tutsi crimes. Not only do the political elite define who is to blame for the outbreak of conflict, they are also instrumental in determining what constitutes a crime, as well as who may be considered a victim and whom the perpetrator. Such narratives of blame hold tremendous power as they are utilised to entrench systems of oppression and inequity against certain echelons of society whilst empowering others, thus demonstrating the manipulation of transitional justice mechanisms for political gain.

In Rwanda, systems of oppression operate along ethnic cleavages. Rentyjens (2006, pp. 1110) defines this as the ‘Tutsi-isation” and “RPF-isation’ of Rwanda, which is evident through their exclusive monopoly of public institutions and positions of power. Statistics reveal that in 2000, 70\% of the most prominent positions of office were held by Tutsis; which is concerning as they comprise just 10\% of the population (Rentyjens, 2011, pp. 30). The preferential treatment conferred to the Tutsi population is indicative of the RPF’s formation of a new ‘Akazu’ (patrimonial network) which works to bolster their support, allows the party to acquire legitimacy and to strengthen President Kagame’s hold over the reins of power (Rentyjens, 2011, pp. 30). The term ‘Akazu’ is a reference to an informal grouping of Hutu elites who were closely affiliated to the former Habyarimana regime; it is said that they abided by an extremist ideology and played a significant role in orchestrating the genocide against the Tutsi population (Behuria, 2015, pp. 258). It is of no coincidence that Rentyjens utilises such contentious terminology to describe the actions of the RPF-led regime; it is a damning denunciation. Bratton and Van De Walle (1997, pp. 65-66) argue that political elites acquire support and legitimacy through providing their patrimonial networks with access to state resources. This paper argues that due to the RPF’s authoritarian control over all state resources and institutions, there is no room for contestation of their power which explains their extraordinary success during elections. This is a deliberate strategy employed by the RPF and this paper suggests that the creation of this ‘Akazu’ would not have been feasible had the institutionalisation of a state-directed version of ‘truth’ not occurred. This sentiment is well exemplified by Miller (2008, pp. 280), who claims that “transitional justice mechanisms…are discursive tools, just as much as they are instruments of accountability or reconciliation; they may frame the conflict in one dimension without providing an alternative vocabulary.”

Similarly, in Kenya, transitional justice mechanisms are instrumentalised to create a version of ‘truth’ which portrays the current ruling coalition in a more favourable light. It is argued that this narrative of ‘truth’ is the source of the Jubilee Alliance’s power, legitimacy and support, despite the emergence of damning evidence of “potential crimes against humanity” (Brown et al., 2012, pp. 248). Following the 2007 post-election violence, a Commission of Inquiry revealed the violence in Kenya “followed ethno-religious patterns of party affiliations” (Lugano, 2017, pp. 15). The Commission recommended the creation of a Special Tribunal to investigate these crimes. When this did not materialise, the International Criminal Court (ICC) intervened. The ICC intervention in Kenya was especially controversial due to the revelation of the ‘Ocampo Six’; a list of six high-ranking members of the political elite under investigation for inciting ethnic violence, which was grave enough to be considered a ‘potential crime against humanity’ (GPPAC, 2014, pp. 16). It is argued that the political elite in Kenya downplayed their own role in the promotion of a zero-sum ethnic competition, through creating and replicating narratives which brought the ICC’s legitimacy into question. This strategy successfully allowed the political elite to circumvent both international and domestic scrutiny of their actions. This view is supported by Lynch (2014, pp. 94) who claims that the Jubilee Alliance “reframed the ICC story – at least in the eyes of a significant number of Kenyans – as a performance of injustice, neo-colonialism, and threat to the country’s sovereignty, peace and stability.” Lynch presents a persuasive argument, one which is verified through grassroots, ethnographic research, which consisted of interviews and focus-group discussions as well as election-monitoring processes, TRC participant observations among others (ibid, pp. 95). Moreover, this claim is supported by Lugano (2017, pp. 9) who claims that “the ICC’s intervention in Kenya’s 2007/2008 political crisis was framed as neo-colonialism by two of the accused – Uhuru Kenyatta and William Ruto…which was central to the accused overcoming their ICC stigma.” The institutionalisation of this ‘truth’ to form a collective memory was politically desirable for the elites in question, as it allowed them to circumvent culpability of serious crimes. Ironically, the ICC investigations, which were launched to tackle impunity, have been mobilised to fuel the very culture of impunity it was tasked to eliminate. In this case, transitional justice mechanisms have been re-articulated and instrumentalised to promote injustice. This view is supported by Mueller (2011, pp. 109) who claims that “no high-level figures in Kenya have ever been prosecuted for the increasingly deadly violence surrounding elections since the early 1990s.”

Introducing and reinforcing this discourse within the broader conceptualisation of transitional justice in Kenya worked to secure the identity and power of Kenyatta and Ruto, whilst simultaneously undermining the ICC’s legality. This narrative of ‘truth’ introduced by the political elite portrayed the ICC and the coalition of Kenyatta and Ruto as antithetical to one another (Mueller, 2011, pp. 109). As a result, whilst the political elite entrenched the notion that the ICC is a neo-colonial, divisive institution, they simultaneously propagated the idea that their coalition was one of unity, which brought together the two major ethnic groups: the Kalenjin and Kikuyu; who were bitter rivals prior to this point (Lynch, 2014, pp. 110). This view is supported by Brown et al. (2012, pp. 254) who claim that “shifting alliances by opportunistic ethno-regional power brokers have characterised Kenyan politics. Bitter enemies before one election can find themselves on the same side in the run-up to the next one”. This illustrates the argument that transitional justice mechanisms are employed not only to secure the power of incumbent leaders, but also to ensure continuity of nefarious practices, under the guise of ‘justice’ and ‘reconciliation’. Thus, transitional justice mechanisms in Kenya were manipulated by the political elite in order to deflect criticism, secure personal power for Kenyatta and Ruto as well as to acquire broad-based legitimacy and support for their ethnic patrimonial groups through the creation of an alternative ‘truth’; all under the guise of ’justice’.

The Instrumentalisation of Transitional Justice as a Strategy of Political Abjection

Transitional justice mechanisms are also manipulated by the political elite to create an enemy or an ‘other’. This tactic of vilifying, discrediting and defaming all forms of opposition is a particularly effective method of consolidating power as it allows regimes to rationalise their inequitable treatment of all those who pose a threat to their rule; whether that threat is real or simply fabricated. The instrumentalisation of transitional justice to eliminate opposition is actualised through mobilisation of the state’s version of ‘truth’. If a transitional regime has monopoly over what is considered true, the nature of justice, and of whom are the victims and the perpetrators, then they are also able to instrumentalise this ‘truth’ to demarcate outside groups or ‘others’. This strategy is evident in both Rwanda and Kenya. Both regimes have successfully delegitimised their opposition whilst simultaneously securing their power using political abjection. The term political abjection here refers to a strategy used to obliterate any opposition through defining it as a “malignant threat to the broader social and political health of the nation” (Beresford et al, 2017, pp. 2). By portraying any dissent as “actors who harbour ambitions to return these societies to past instances of mass political violence and neo-colonial relations, [t]hese individuals are said to warrant illiberal state interventions against them” (Beresford et al, 2017, pp. 2).

In Rwanda, the policy of ‘Rwandicity’ has been especially useful in eradicating all forms of dissent, whether that exists at a grassroots level or as a concrete political threat in the national arena. This policy is an integral part of transitional justice in Rwanda as it aims to foster reconciliation of the population through promoting unity by means of stigmatising and criminalising all references to ethnicity (Beswick, 2010, pp. 410). It is argued that this strategy was instrumentalised to burgeon RPF dogma. Moreover, it was not only successful in controlling the dominant population through a “collectivisation of Hutu guilt” (Thompson, 2011, pp. 378), it was also mobilised to contain any and all forms of political dissent. This argument is especially persuasive considering the sheer number of people who have been imprisoned under ‘genocide ideology accusations’, a figure that reached 912 people in 2009 (Rentyjens, 2011, pp. 16). Furthermore, prior to the 2003 elections, the Republican Democratic Movement party (MDR), the sole concrete political contender to RPF power, was abolished for “encouraging ethnic-divisions” (Rentyjens, 2006, pp. 1107). This is not merely a coincidence, but part of a broader strategy to eliminate all forms of opposition and exert authoritarian control over all aspects of life. The RPF would have been unable to wield such authoritarian power if not for the gross abuse of transitional justice mechanisms. This tactic has been incredibly successful in entrenching the RPF’s dominance as it eliminates all possibilities for a truly competitive party politics where there are programmatic differences between parties and electoral contenders; thus, allowing political leaders to retain their monopoly of power indefinitely. Moreover, the veneer of transitional justice shields the RPF regime against international scrutiny and interference which allows them to further their own agendas without restraint.

Similarly, in Kenya transitional justice mechanisms were manipulated by political elites in order to delegitimise the opposition. This was actualised on both national and international fronts. Firstly, the coalition of Kenyatta and Ruto manipulated transitional justice mechanisms to delegitimise the ICC’s investigation into the post-election violence (Lynch, 2014, pp. 105). This was politically expedient as the ICC had the potential to destroy the political careers as well as the personal lives of the politicians concerned, thus posing an existential threat to the leaders as well as the political parties they represent (Lynch, 2014, pp. 105). The political elite created, reproduced and propagated the notion of the ‘other’ in order to neutralise this menace. Dichotomous characterisations of the ICC as a neo-colonial invader and a western stooge stood in stark contrast to Kenya, a victim of colonialism, once again under attack from the same, insidious threat (Lugano, 2017, pp. 11). This argument is supported by Lynch (2014, pp. 106) who posits that Kenyatta and Ruto consciously portrayed themselves as “defenders of Kenya’s sovereignty and independence against Western interference…everything was cast as a competition between patriotic Kenyans and a patronising international community”. This dichotomy was further entrenched through characterisations of the ICC as antithetical to the Jubilee Alliance, which were widely circulated by these political actors (Lynch, 2014, pp. 106). The elite focused on the retributive nature of the ICC whilst contrasting it with promises of peace and reconciliation through restorative means under their coalition (Lynch, 2014, pp. 106). The manipulation of transitional justice mechanisms such as the ICC was integral to the success of the Jubilee Alliance. The creation of an ‘other’ was a central tenet of the coalition’s tactic of political abjection and it was highly successful as evident through the victory of the Jubilee Alliance in the 2013 elections, one which was characterised as “a referendum on the role of the ICC and its attendant neo-colonialism” (Lugano, 2017, pp. 11).

Additionally, the Jubilee Alliance utilised transitional justice mechanisms in order to vilify and defame political opponents on the domestic front. This is supported by Brown et al. (2013, pp. 253) who claims that the ICC is a useful tool to remove political rivals, both within a party and amongst opposition groups. The creation of an ‘other’ was salient in delegitimising the Alliance’s only concrete political opponent: Raila Odinga. The political elite capitalised on Odinga’s role in facilitating the ICC’s intervention in Kenya, and used this association to categorise him and the Luo minorities as ‘enemies of Kenya’. This argument is supported by Lynch (2014, pp. 109) who claims that “Jubilee effectively recast overarching narratives…regarding the ICC and Odinga, in such a way that individual and collective interests became intricately intertwined with one’s ethnic identity. The ICC’s intervention, for example, becoming not only an example of a political and biased court, but a process through which Odinga and ‘the Luo’ sought to tarnish ‘the Kalenjin’ as perpetrators, and to remove ‘the Kikuyu’ from power.” This demonstrates how transitional justice mechanisms are manipulated as part of a strategy of political abjection (Beresford et al., 2017), which in Kenya entailed creating an ‘other’ so as to firstly paint opponents as the enemy of the state and secondly to unite the rest of the population. It ought to be noted that once again, ethnic identities were mobilised for political gain, however, this time, it occurred under the veneer of transitional justice. The mechanisms which ought to facilitate reconciliation are mobilised to reignite ethnic divisions, thereby sowing the seeds of future conflict.

The Mobilisation of Transitional Justice to Indefinitely Prolong Political Mandates

Another tactic which is employed by political elites is the manipulation of transitional justice mechanisms to prolong political mandates. According to Galtung (1969, pp. 183), peace is not simply the absence of physical violence (negative peace) but also the absence of structural violence and inequalities (positive peace). Therefore, he argues that transitional justice should aim to establish positive peace in order to actualise true justice and reconciliation. However, it is argued that political elites have sought to capitalise on this extended articulation of justice to extend their political terms as well as to entrench their power and bolster their identities. Beresford et al. (2017, pp. 1) proposes a conceptual framework of ‘liminality’, which is particularly useful in examining how regimes retain characteristics of a hybrid system as a tactic to consolidate power. Hybrid democracies describe regimes where procedural elements of democracy are fulfilled whilst retaining authoritarian control over all elements of life (Heynes, 2001, pp. 12). Rwanda and Kenya both exemplify a ‘liminal state’.

Through utilising the ‘productive liminality’ framework (Beresford et al., 2017), Rwanda and Kenya, political elites have successfully mobilised liberation discourses to maintain their power and influence. Firstly, the RPF and Jubilee Alliance have disseminated their version of ‘truth’ which is later institutionalised into the collective memory of the population. This ‘truth’ claims that these parties have ‘liberated’ the population from ethnic violence and or genocide; therefore, it has been a source of peace and justice in the country. Through creation of an enemy or an ‘other’, these parties simultaneously target their political opponents whilst rationalising the implementation of extreme, authoritarian practices. Furthermore, the political elite claim that complete liberation has yet to be achieved as structural violence remains prevalent, which is then used to justify a prolonged mandate. This three-tiered strategy is particularly effective in consolidating political power, legitimating authoritarian rule and eliminating all form of dissent and opposition, thus demonstrating the degree to which politicians manipulate transitional justice articulations and mechanisms for their personal and political gain. This was apparent in Kenya in the recent 2017 election, which demonstrated that little has changed: “Voting patterns are still set up as ethnic blocks…The politics of tribe and patronage persist, political change trickles along, with little sign of a variation in the personalities dominating the space, or any shift in ideology” (Wesangula, 2017). Similarly, in Rwanda, President Kagame has held the reins of power for over 17 years and with the 2015 constitutional amendment, he is set to be in power till 2034 (Burke, 2017).

Conclusion

This essay examined the mechanisms of transitional justice adopted in Rwanda and Kenya to actualise peace and reconciliation following the outbreak of mass violence, as well as the ways in which these processes have been hijacked in order to serve personal as well as political vested interests. A constructivist theoretical framework has established that concept of justice simultaneously constructs and is constructed. Based on this analysis, this paper argues that transitional justice mechanisms ion Rwanda and Kenya have been mobilised to create, disseminate and propagate a state-sanctioned version of ‘truth’. Political regimes then endeavour to institutionalise this truth into a collective memory, ergo history, which further reinforces their power, increases their legitimacy and extends their influence. Additionally, regimes utilise transitional justice mechanisms to create an enemy or an ‘other’ in order to remove any opposition or political rivals. Furthermore, political elites often manipulate transitional justice mechanisms to prolong their political mandates as well as that of the parties they represent. The various means adopted by political elites demonstrate that transitional justice mechanisms are to a large extent instrumentalised for personal and political gain.

This paper has largely focused on the agency of political leaders in Rwanda and Kenya and their role in creating articulations of justice, which serve their vested interests. However, an area which has yet to be considered is the notion that “identities, interests and behaviour of political agents are socially constructed by collective meanings, interpretations and assumptions about the world” (Adler, 1997, pp. 324). Reflecting on this, to what extent are the actions of leaders in Kenya and Rwanda the product of individual motivation? Or is it the result of institutionalised practices?

Such questions raised in this paper are particularly relevant as transitional justice mechanisms are becoming institutionalised and reproduced sporadically across Africa as well as throughout the world. There is a very real, pervasive fear that the “the same mistakes may easily be perpetuated, in a way that bespeaks not a conspiracy of interests but a coherence of blindness” (Miller, 2008, pp. 272). Unfavourable practices and abuse of transitional justice not only serve to increase the propensity for physical violence; they also increase the prevalence of structural constraints, which undermines the core aims of transitional justice and thus jeopardises the prospects of genuine peace and reconciliation in the region. Thus, it is necessary to consider the ways in which these mechanisms are instrumentalised in order to safeguard against its abuse.

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A Critical Discussion of the Success of Past Transitional Justice Approaches in Kenya for Securing Peace and Reconciliation

By Anna Skinner

Anna Skinner is a graduate of the University of Leeds where she completed a BA International Development. Her research, professional and personal interests include migration trends, as well as issues pertaining to gender.

Abstract

Kenya’s 2007 election results sparked two months of grave violence. This article analyses Kenya’s response to the violence, and specifically the success of transitional justice approaches for achieving peace and reconciliation post 2007-2008. The article explores the important role that Kenya’s socio-political context played in the post-election violence, such as Kenya’s history of societal restructuring, favouring certain ethnic groups, which created the interrelation of ethnicity and politics and fostered ethnic tensions. Transitional justice approaches – including the Truth, Justice and Reconciliation Commission, a Special Tribunal, and eventually, the International Criminal Court’s intervention – lacked the support of Kenya’s leaders. This paper argues that, fundamentally, transitional justice efforts were impeded in achieving positive peace by failing to address socio-political symptoms. The article concludes that the inherent and enduring structural violence within institutions, policies and society hinders the ability to achieve lasting peace and reconciliation.

The discussion of this paper focuses on the response to the violence that occurred in Kenya after the 2007 elections. After the announcement of the election results, Kenya experienced two months of violence, which resulted in over 1000 deaths, hundreds of thousands of displaced people, buildings destroyed, and numerous acts of physical and sexual violence (Gibson and Long 2009, p.1, 5).

After outlining various terms useful for analysis, this article will look at the socio-political context in the preceding years of the 2007 elections, which laid foundations for the violence. This included the ethnically-based restructuring of society and land reforms. As a result, ethnicity and politics became closely intertwined, which contributed to creating a breeding ground for ethnic tensions. Next, the article will discuss some strategies used to gain political support in 2007 and the ensuing election violence. Then, the article will critically discuss the success of transitional justice approaches across post-conflict years – such as truth commissions and tribunals – to achieve peace and reconciliation in Kenya. It will analyse how and why socio-political factors impacted on the failure of long-term peace and reconciliation efforts.

The argument that this paper puts forward is that that Kenya’s transitional justice efforts failed largely due to the lack of commitment to address socio-political factors such as the ethnically based structural violence that still permeates society, which has impeded the ability for peace and reconciliation. The article also argues that the lack of support from Kenyan leaders has been a barrier to the success of peace and reconciliation efforts, and will continue to limit transitional justice attempts.

Definition of key terms

To clearly evaluate the success of past approaches to transitional justice for achieving peace and reconciliation, it is important to clearly understand the terms referred to.

Transitional justice is a society’s approach to justice in a transition period after conflict and human rights abuses have occurred, to achieve societal transformation in the form of democracy, peace and reconciliation (ICTJ, 2009). Reconciliation (as a process and end goal) can be defined as the movement of a society “from a divided past to a shared future” (Bloomfield 2003, p.12).

It is helpful to think about peace by thinking about violence, both of which can be thought about in two dimensions: positive and negative peace, and personal/direct violence and structural violence. In the past, peace has been considered “the absence of violence”, referring mainly to visible and direct forms of violence (Galtung 1969, p.168). Going a step further, negative peace is considered the “absence of organised personal/direct violence” (Galtung 1967, p.12; 1969, p.183), while positive peace is understood as the “absence of structural violence” or of social injustices and inequalities (Galtung 1969, p.183). Therefore violence cannot be simply seen as visible violent manifestations with a physical perpetrator – known as direct/personal violence (whilst not wishing to belittle these) (Galtung 1969, p.170). Structural violence relates to structures such as institutions and policies in society that favour certain social groups (based on class, ethnicity, gender) and oppress others, fostering and reproducing inequalities (Galtung 1969, p.170; Gready et al 2010, p.1; Cockburn 2004, p.43).

Cockburn further expands on theories of violence, arguing (specifically in relation to gender relations) that instead of viewing violence as a “single event”, it is better to look at it as a “continuum of violence” which occurs in social, economic and political areas of society (2004, p.43). By this she means that structural violence, specifically, is a constant present feature of societies that does not just occur and then not occur as physical violence does (2004, p.43).

Peace presents an interesting debate – particularly in contexts seeking justice – regarding whether peace is necessary for justice to be achieved or whether justice is required first to enable peace to prevail (Oette 2010; Ellis 2006, p.113). This is much debated within transitional justice institutions such as the International Criminal Court (ICC) (Kerston 2014).

Kenya’s Pre-2007 Context

Part of understanding the violence that took place in 2007-2008 requires understanding the socio-political context in the years, and even decades, preceding this particular period of violence. Kenya’s violence (historically, and in 2007) was rooted in ethnic tensions, which were intertwined with tensions and injustices around politics and resources, specifically land (Ndungú 2014). This is largely owing to Kenya’s colonial inheritance, the structures and mentalities established by previous colonial administrations, which still prevail (Nyawalo et al, 2011, p.36).

Like many former colonies, Kenya experienced significant ethnically based restructuring, which divided the country into ‘tribes’ primarily for ruling purposes (Nyawalo et al, 2011, p.36; De Smedt, 2009, p.583). The colonial and post-colonial government also reformed land distribution through processes like settlement schemes based on ethnicity (Kanyinga, 2009, p.326) and via networks of patronage, whichin post-colonial years were also closely based on ethnicity, in return for support (De Smedt, 2009, p.583). Therefore “ethnic groups became political tribes” (De Smedt, 2009, p.583). This meant that land and politics were “ethnicised” from early on and, so, inequalities surrounding land distribution also had ethnic lines (Kanyinga, 2009, p.326).

Given that ethnicity permeated other areas of Kenyan society, it inevitably became a big feature of political divides at local and government level. As Kanyinga argues, this “laid a firm foundation for political conflict”, which Kenya experienced on several occasions even before 2007 (Kanyinga, 2009, p.326). Inequalities in Kenya have subsequently also historically been heavily based on ethnic groups, with several previous administrations (including Mwai Kibaki’s governments in power at 2002 and 2007 elections) favouring the Kikuyu people (Nyawalo, 2011, p.34). This has been particularly prevalent in issues over land, with land disputes and other tensions between Kalenjin and Kikuyu communities spanning for years (Roberts, 2009, p.14). For example, when the colonial administration handed power over to President Jomo Kenyatta, land previously seized by the government (in areas such as the White Highlands) was left in the hands of Kenyatta’s government leaders and was distributed among their ethnic patronage networks, which mainly favoured Kikuyu (Rawlence and Albin-Lackey, 2008).

Therefore those of the Kalenjin tribe and other smaller tribes have experienced structural violence through unequal land access, rights, and regarding distribution of and access to other resources. As a result, ethnic groups have been deliberately and strategically encouraged to compete against each other. Berman describes this as “political tribalism” (1998, p.305; De Smedt, 2009, p.584). This competition creates greater identification with one’s ethnic group, by emphasising the distinction between ‘us’ and ‘them’; the fortunate and the less fortunate who miss out on access to these resources (Berman, 1998, p.327).

With the knowledge of the prominent ethnic divisions and structural violence experienced, one can better understand the way political leaders have tactfully harnessed support during election times.

Post-election Violence

The violence that followed the 2007 election results was partly a response to the election result, and partly promoted by strategies used to acquire political support, which emphasised grievances and ethnic injustices amongst Kenyans.

Commonly used strategies have been based on ethnicity and patronage networks to distribute resources that those in power have access to, to cronies within these networks (which in Kenya tend to be ethnically based). During elections, populist strategies have commonly been implemented, using injustices such as deprivations or negative public feeling to gain the united support of a group of people against ‘others’, united by deprivations (Albertazzi and McDonnell, 2008, p.3; Cheeseman and Larmer, 2013, p.1). In Kenya’s 2007 elections (and at other critical times), ‘ethno-populism’ was used, uniting certain ethnic groups based on their ethnic exclusion and grievances, against other ethnic groups such as the Kikuyu supposedly responsible for the grievances and structural violence experienced (Cheeseman and Larmer, 2013, p.1).

After Kenyans had gone to the polls, the Electoral Commission of Kenya (ECK) was notably late in announcing who had won, but eventually they announced the Party of National Unity (PNU) and Mwai Kibaki’s victory, despite “rumours of rigging and malpractice” (Gibson and Long, 2009, p.1; Roberts, 2009, p.3; Jenkins, 2012, p.576). There were considerable doubts regarding the legitimacy of the outcome and the fairness of the process including the vote-counting, which, combined with frustrations with political leaders’ false promises, sparked violence (Jenkins, 2012, p.576; Mueller, 2008, p.194; Roberts, 2009, p.4).

The two months of violence that took place involved and affected all kinds of people at different levels of the society (Gibson and Long, 2009, p.5). However, it was largely divided along ethno-political lines, with supporters of the opposition, the Orange Democratic Movement (ODM) targeting Kibaki’s supporters, and vice-versa retaliation (Jenkins, 2012, p.576). This period saw over 1200 deaths and at least 350,000 displaced (Gibson and Long, 2009, p.1; Roberts, 2009, p.2; Jenkins, 2012, p.576). Other violence included lootings, destroying properties, driving people out of their communities, physically and sexually attacking people, and police shootings to deter or stop demonstrations (De Smedt, 2009, p.590; Rawlence and Albin-Lackey, 2008).

Transitional Justice Approaches in Kenya

In response to this violence, Kenya established a Commission of Inquiry into the Post-Election Violence (CIPEV) – also known as the Waki Commission – with the purpose of investigating the post-election violence’s causes and consequences (Thomson and Kihiker, 2017, p.5; Mueller, 2014, p.30). The Waki Commission recommended establishing a Truth, Justice, and Reconciliation Commission (TJRC), and a Special Tribunal, to allow deeper investigation and prosecution of individual cases as well as police reforms (Thomson and Kihiker, 2017, p.5).

The recommended TJRC, although swiftly established in 2008, had limited success given the lack of a lack of wide awareness of its report (Ndungú 2014, p.2; TJRC, 2013, p.1). One success was that the TJRC did conduct public hearings, which allowed victims, witnesses and perpetrators to present their stories (TJRC, 2013, p.1). However, the report – outlining findings including perpetrators, and recommendations including reparations – experienced significant delays in being published, which also delayed implementing its recommendations (Thomson and Kihiker, 2017, p.6, 9; Asaala and Dicker, 2013, p.341). Part of these delays came from people in positions of power who were named in the report as perpetrators, who managed to stall the approval of the report and mobilise support against it (Thomson and Kihiker, 2017, p.9).

The Special Tribunal, intended to be composed of Kenyan and international judges, was never established (Asaala and Dicker, 2013, p.345). Likely reasons are that it was never pushed by Kenyan politicians due to fears of political corruption or of being personally prosecuted (Thomson and Kihiker, 2017, p.5; Mueller, 2014, p.30; Brown and Sriram, 2012, p.252). After endless delaying-tactics and lack of commitment by Kenyan political leaders, the failure to implement this recommendation mandated the ICC to intervene and begin its investigation (Mueller 2014, p.30; Thomson and Kihiker, 2017, p.5)

The ICC’s investigations began in 2010 and involved six of Kenya’s political leaders believed to have played some role in the 2007 post-election violence (Endoh and Mbao, 2016, p.276). In 2012, then Deputy Prime Minister Uhuru Kenyatta and MP William Ruto were among four of the six charged with crimes against humanity, while simultaneously campaigning for presidential election the following year (Endoh and Mbao, 2016, p.277). Along with other political leaders, Kenyatta and Ruto were actively and outspokenly against the ICC’s involvement, not co-operating nor providing evidence (Mueller, 2014, p.25, 31). They framed the ICC as a neo-colonial, western imperialist power (Lynch, 2015, p.188; Mueller, 2014, p.31). These political leaders were also found to have bribed and intimidated witnesses testifying against them, in attempt to weaken the case against them (Mueller, 2014, p.33-34).

This was considered by the ICC investigators their most challenging case yet, largely due to various methods of resistance by Kenya’s government and leaders (Mueller, 2014, p.26; Hansen 2016). Although Kenya permitted these investigations taking place, political leaders strategically strived to limit the ICC’s ability to successfully and thoroughly investigate the cases (Mueller, 2014, p.26;). Eventually, Kenyatta’s case (and others’) collapsed (Hansen, 2016).

Criticisms and Limitations of the Transitional Justice Approaches in Kenya

The ICC’s involvement as a transitional justice method has had questionable success in terms of achieving justice, and even more questionable success in achieving peace and reconciliation. Ellis (2006, p.113) argues that justice is needed for lasting peace to be reached. However, many consider the ICC to have prioritised justice at the expense of peace and reconciliation, and failed even at achieving justice through retribution efforts that attempted to punish high-level orchestrators of violence (Lynch, 2014, p.107; Lynch, 2015, p.186; Tambe Endoh and Mbao, 2016, p.279-280).

After giving Kenya’s leaders several chances to follow through with promises of domestic-level investigations, the ICC Prosecutor opened a proprio-motu investigation, at his own discretion (Mueller, 2014; Hansen, 2016). The ICC reserved the right to intervene due to Kenya’s theoretical commitment to the Rome Statute, the Court’s founding treaty. However, the ICC intervention never received genuine support from the Kenyan government, despite Kenya being a signatory to the Rome Statute.

There are claims that the ICC did not carry out investigations thoroughly, relying too much on the Waki Commission’s and other investigations’ findings (Lynch, 2015, p.186). Others claim that the ICC was biased towards certain political leaders. For example, Raila Odinga (leader of the ODM party) was not included in the six named to be investigated, despite rumours that he was involved in inciting the 2007-08 violence (Lynch, 2015, p.186; Jenkins, 2012, p.576). On similar lines, some have suggested that Odinga and other politicians who approved of the ICC’s investigation, may have done so primarily for political motives, since they were not tainted as the ‘baddies’, and, with the 2013 elections approaching, Odinga particularly may have seen it as a way to acquire political backing, rather than for the purpose of achieving peace, justice and reconciliation (Lynch, 2015, p.186).

Interestingly, while leaders such as Kenyatta and Ruto did not support the ICC’s involvement in Kenya, during their campaigns for the 2013 elections the anti-ICC rhetoric provided a tool for acquiring support for a new Jubilee Alliance (which comprised Kenyatta and Ruto, the representatives of the two previously opposing ethnic groups Kikuyu and Kalenjin) (Mueller, 2014, p.25-26; Lynch, 2015, p.188). This alliance justified claiming they were the ones truly committed to bringing peace and reconciliation to Kenya, while the ICC’s approach was biased, based solely on punishment and justice, and therefore Odinga supporting the ICC’s ‘side’ tarnished him with the same brush (Lynch, 2014, p.107; 2015, p.188).

Thus, while perhaps not how expected, the ICC’s involvement in Kenya provoked a situation of reconciliation to some extent, uniting once warring groups in the new alliance. The anti-ICC and pro-Jubilee rhetoric also promoted a peaceful, anti-violence period around the 2013 elections, which possessed a much stronger emphasis on peace, with urges for peaceful elections coming from not only political leaders, but other positions of influence (Lynch, 2015, p.184). However, this does not necessarily reflect that lasting and sustainable peace and reconciliation had been established (Gready et al., 2010, p.2). It could have been politically motivated, with the hope that the Jubilee Alliance setting a good example of peace and reconciliation around this political event would secure them greater voting support.

A major issue with the transitional justice approaches undertaken in Kenya is that they placed greater emphasis, time and resources into efforts that would treat the symptoms of the violence, rather than addressing its roots, the socio-political factors that caused the violence (Gready et al., 2010, p.1). Therefore it seems that only negative peace was achieved in the years of transitional justice and peace building efforts following the 2007 post-election violence, owing to the absence of direct violence. Despite this, positive peace was not achieved since structural violence is still a prominent and pervasive feature of society.

Structural violence within Kenya in the form of ethnic exclusions in land and opportunities felt by ethnic groups such as the Kalenjin and minority groups was significant in conceiving the anger and injustice people felt which fuelled the outbreak of physical violence. Several scholars argue that while structural violence and these exclusions remain unaddressed and still “persist in Kenyan society and consciousness, the potential for violent confrontation between groups remains high” (Jenkins, 2012, p.596; Lynch, 2014, p.98). Thus, the ability for positive peace and reconciliation to prevail was and is limited, as long as these ethnic exclusions create high potential for violence.

To this end, transitional justice approaches should have addressed the exclusionary narratives felt by civil society, as well as narratives of ethnicity and exclusion inherited from past regimes that were played upon by political leaders (Cheeseman and Larmer, 2013, p.1). Several scholars and observers have argued that a transformative justice approach would have been more successful than transitional justice approaches (Gready et al., 2010, p.1; Gready and Robins, 2014). Transformative justice seeks to address and see transformation in the unequal structures of society, which (in Kenya and other countries) have facilitated and catalysed physical violence (Gready et al., 2010, p.1; Gready and Robins, 2014).

Moreover, it has become widely known that political leaders at the highest level and at local levels were involved in orchestrating and encouraging the violence, as will be discussed. ODM and PNU supporters alike arranged meetings and raised funds to facilitate the violent reaction (PNU supporters mobilised Kikuyu militia in retaliation to ODM supporters who attacked), particularly in Nairobi’s slum areas and the Rift Valley where many of the land disputes exist (Rawlence and Albin-Lackey, 2008). The ODM, particularly, mobilised groups of young people who were already angry at politicians’ false promises about their future prospects’ (Roberts, 2009, p.11). The police also committed hundreds of atrocities, by opening fire on unarmed civilians and children and shooting to stop demonstrations or even prevent and deter them from happening (Rawlence and Albin-Lackey, 2008). Reforms within the armed forces were needed in order for the potential for future violence to be minimised (particularly around the 2013 elections) and for peace and reconciliation to truly be a possibility (Lynch, 2014, p.98; Ndungú, 2014, p.5).

Additionally, by 2007, a present feature of society was gang violence, and political leaders in the past and at this time, had hired gangs to ‘deal with’ opposition supporters and carry out violent attacks or retaliations (Mueller, 2008, p.194; Ndungú, 2014, p.6). This presented difficulties regarding investigating situations involving people in positions of power, since they are the ones holding or with access to the required information (Ndungú, 2014, p.6; Brown and Sriram, 2012, p.258). Leaders’ reluctance to cooperate in investigations that put their power at stake reflects a lack of commitment at the higher level within Kenyan society in bringing justice and peace in Kenyan society post-conflict (Ndungú, 2014, p.6,10).

Thus, what has developed is a lack of trust among society, significantly in officials and institutions, including the judiciary, due to past experiences of institutional failures, ethnic oppression, and politicians’ false promises, corruption and biases within the police (Thomson and Kihiker, 2017, p.20). This raises issues about how effectively peace can be achieved, if corruption and inequalities exist within institutions and politics. Returning to the peace versus justice debate, Ellis’ argument that “there can be no lasting peace without justice, and justice cannot exist without accountability“ (2006, p.113), suggests that the impunity, lack of accountability or transparency within Kenya’s leaders, heavily impedes on the ability to achieve sustainable peace and reconciliation.

Conclusion

While the post-2007 years saw a period of negative peace without similar violence recurring, the transitional justice efforts were not successful in terms of achieving positive peace, addressing deep-rooted inequalities and injustices in the Kenyan society. The structural violence deeply ingrained in the Kenyan society needed addressing in order to deal with the root causes of the violent outbreak. With Cockburn’s “continuum of violence” in mind (2004, p.43), one can better understand how addressing structural violence in Kenya requires targeting all areas of society. In Kenya, it is vital to consider how and where (for example in politics, economic opportunities, land rights) structural violence has historically affected and presently continues to affect society and social groups, such as the Kalenjin.

Moreover, the transitional justice methods, such as the ICC’s intervention and the TJRC, needed the support of all actors within society, particularly those in positions of influence. These peace, justice and reconciliation efforts that should have addressed the structural violence, needed endorsement from above, by political leaders, in order to see a ripple effect in wider areas of society to potentially change exclusions and divisions. Without addressing structural violence and without influential people advocating for this change for the sake of peace and reconciliation, the potential for violence in Kenya remained and will remain high, while the potential for positive peace remains low.

Thus, transitional justice should be part of a broader effort that strives to build peace in Africa – and in this case in Kenya. Justice is required to some extent in order to provide accountability for crimes committed, however, other efforts that address reconciliation and peace should not be discounted at the expense of solely achieving retributive justice. In cases such of that of Kenya, achieving post-conflict peace and reconciliation involves identifying, challenging and reforming areas of society where structural violence prevails. By doing this, the potential for conflict to be triggered is limited as injustices and anger are minimised, allowing peace to be more profoundly and genuinely achieved.

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Not All Pandora’s Boxes Are the Same: If Transitional Justice Is to Be Effective a One-size-fits-all Approach Is Not the Right Choice

By Domenico Carofiglio

Domenico Carofiglio graduated from the War Studies Department of King’s College London in 2016. He is now pursuing a double degree in Public Policy and Development at Sciences Po Paris and Bocconi University.

Abstract

This article analyses the role of transitional justice as a tool able to establish a link between the local and global, the national and international, the particular and the universal. By drawing on examples from Nigeria and East-Timor, this article explores the tension between the global and the local, and the resulting outcomes when one excessively overcomes the other. In doing so, the article looks at the effectiveness and relevance of transitional justice by focusing on its relation with the discourses of global politics, arguing that for transitional justice to be effective a one-size-fits-all dimension is to be discarded in favour of an application of transitional justice as a legal tool that helps communities to find their own way to come to terms with a tormented past. The imposition of de jure universally-applicable rules does not necessarily bring about de facto effectiveness of such rules; the local realities where these rules apply cannot be ignored. This paper begins by defining transitional justice, globalisation and globalised politics, and it will shed light on what is meant by local needs. Building on the definitions provided, the second section will outline a theoretical framework for the arguments at issue, by focusing the attention on the link between transitional justice and global politics; as will be seen, such a connection is theoretically informed by concepts of globalisation, glocalisation and liberalism. Finally, beyond the traditional examples used in the transitional justice literature, such as those of Rwanda and Uganda, the essay focuses on the cases of Nigeria and East-Timor.

An Introduction to Transitional Justice

‘Transitional justice as a concept emerged from a global wave of political transitions’ (Apland, 2012). Indeed, those countries that recently transitioned to democracy could not do so without coming to terms with their tormented past. Abuses and wrongdoings had to be addressed and overcome in order to pave the way for intergroup and national reconciliation. This is how transitional justice came about. In his seminal article “Democracy’s Third Wave”, Samuel Hungtinton stated that since the beginning of the 1970s up until the end of the century, ‘at least 30 countries made transitions to democracy’ (1991, p.12). The concept of transitional justice is strongly interwoven with the broader phenomena of democratisation, and ultimately, with globalisation. More precisely, the discourse of transitional justice today has a global normative reach whose ramifications extensively affect international affairs (Teitel, 2014).

This article shall analyse the role of transitional justice as a tool able to establish a link between the local and global, the national and international, the particular and the universal. By drawing on examples from Nigeria and East-Timor, this article will hence explore the tension between the global and the local, and the resulting outcomes when one excessively overcomes the other. In doing so, it will look at the effectiveness and relevance of transitional justice by focusing on its relation with the discourses of global politics, arguing that for transitional justice to be effective a one-size-fits-all dimension is to be discarded in favour of an application of transitional justice as a legal tool that helps communities to find their own way to come to terms with a tormented past. The imposition of de jure universally-applicable rules does not necessarily bring about de facto effectiveness of such rules; the local realities where these rules apply cannot be ignored. This paper begins by defining transitional justice , globalisation and globalised politics, and it will shed light on what is meant by local needs. Building on the definitions provided, the second section will outline a theoretical framework for the arguments at issue, by focusing the attention on the link between transitional justice and global politics; as will be seen, such a connection is theoretically informed by concepts of globalisation, glocalisation and liberalism. Finally, beyond the traditional examples used in the transitional justice literature, such as those of Rwanda and Uganda, the essay focuses on the original cases of Nigeria and East-Timor.

A matter of definitions

The concept of transitional justice points out at a legal scholarship. However, it would be quite simplistic to look at it as a mere subject of judicial academic inquiry. Indeed, the theorisation and mise en œuvre of transitional justice is an enterprise that involves not only academicians but also, for its very nature, a plethora of other actors ranging from human rights activists and lawyers to sociologists, anthropologists and policy-makers (Hinton, 2010; Rush and Simic, 2014). To be clear, by drawing on the definitions offered by a series of authoritative sources, transitional justice can essentially be seen as a set of judicial and non-judicial mechanisms to achieve peace and reconciliation and to restore justice in societies affected by mass atrocities and wrongdoings committed by authoritarian and repressive regimes (Roth-Arriaza and Marriezcurrena, p.1; Teitel, 2003, p.893; Mani, 2002, p.17; UN Secretary General, 2004, p.5). When defining transitional justice, Hinton adds that ‘it is critical to explore how a sense of justice after genocide and mass violence is always negotiated within particular localities enmeshed with global and transnational flows of ideas and ideologies’ (2010, p.1). Hinton’s consideration touches upon the link between transitional justice and globalisation on a conceptual level; this link will be further analysed in the theoretical section.

Joseph Stiglitz generally provides a standard definition of globalisation as ‘the closer integration of the countries and peoples of the world […] and the breaking down of artificial barriers to the flows of goods, services, capital, knowledge, and people across borders’ (2002, p.3). The Global Politics scholarship investigates the processes resulting from political globalisation in relation to questions of social power. At the heart of the field is the emergence and growing influence of international organisations, non-state actors, multinational corporations and social movements, all at the expense of the state and its Westphalian significance (Nye, 1990). Equally important, global politics concerns matters of global governance and decision-making which fluctuate between, and are in tension with, the national and supranational.

Whereas the previous definitions are straightforward, it is rather difficult to define what local needs are really about. In its ‘one-size-fits-all solutions’ conceptualisation (Nagy, 2008, p.287), transitional justice serves the purpose of shedding light on abuses and atrocities and its perpetrators in order to create a democratic society. Reconciliation of those who have survived is thus fundamental to fulfil the ultimate objectives of establishing a human rights regime, rule of law and democracy. However, these liberal globalised principles are not always an adequate response to what the local needs truly are (see theoretical section). In the context of North-African countries that are de jure transitioning to democracy after the Arab Spring, the ‘Islamists largely reject the universal claims of human rights, stressing rather the specificity of local needs and contexts and a different set of norms’ (Robins, 2015, p.187). While it is debatable the extent to which these countries are de facto transitioning to democracy, agreement can be reached on the argument that local needs should be always defined depending on the reality in question and on ad-hoc basis. While each and every reality should not remain insulated from the global, it is not necessarily the case that all realities are apt for the appliance of universal ‘liberal democratic politics and neoliberal economics’ (Robins, 2015, p.190) that are part of the liberal globalisation “package” brought about by transitional justice (see case-study section). Local needs are undoubtedly subject to specific circumstances that change from case to case.

To conclude on these points, globalisation results in specific processes which raise issues at the heart of the academic inquiry of global politics. In light of the connection between transitional justice, globalisation and global politics, Ruti G. Teitel notes that ‘important normative questions arise in the interaction of transitional justice and globalisation’ (Teitel, 2002, p.899). Framed in global politics terms, Teitel (2002, p.899) asks: ‘at what level should the relevant decision-making regarding transitional justice occur?’. Teitel’s considerations bring us to the following section that provides a theoretical rationale for better understanding the relation between global politics and transitional justice.

A theoretical framework: transitional justice, globalisation, glocalisation, and liberalism

Globalisation

By looking at the relation between globalisation and transitional justice, it is shown that globalisation has the effect of making transitional justice a technocratic legal tool that ignores lived realities. That is, globalisation makes transitional justice more detached from the local realities it deals with and it shifts transitional justice’s very objectives from the establishing of democracy and the rule of law in a country transitioning to democracy, to the mere ‘adherence [of that country] to a modicum order’ (Teitel, 2002, p.898). The glocalisation discourse provides an understanding of globalisation whereby the global and the local are seen in complementarity rather than in contradiction with each other (Robertson, 1994). Indeed, as long as there is excessive emphasis on one way or the other, transitional justice will not be able to grasp the demands of lived realities and correctly address them in relation to globalised politics. The fact that transitional justice primarily looks at high politics rather than starting from ‘the deep politics of a society and asking what this implies for the high politics of the state’ (Andrieu, 2010, p.545) demonstrates how transitional justice is fundamentally entrenched with a liberal ideology; whereby political rights are privileged over social, economic and cultural ones. This further limits the capacity of transitional justice to understand local realities and to correctly frame the latter in the now globalised texture of world politics.

Against the background of the complex relationship between globalisation and transitional justice, Teitel discusses ‘the increasing detachment of transitional justice from local politics and its corresponding transformation into a form of global law and politics’ as well as its ‘increasing globalisation’ (2014, p.1). Hence, the issue of the impact of globalisation on transitional justice’s appliance seems to be one of agreement (Teitel, 2014). Nonetheless, it is not clear whether globalisation directs transitional justice towards a decentralisation of justice by accommodating global forces to local realities or rather to judicial decision-making occurring at the global level (Teitel, 2002). In this regard, Teitel states that despite being born as a tool for spreading a universal rights paradigm, after the Cold War transitional justice came to be too entrenched in local ideas of legitimacy and the rule of law, with the risk of ignoring the actual power politics framework induced by ‘post-Cold War globalising transformations’ (Teitel, 2002, p.893).

Transitional justice’s vacillation between the local and the supranational is symptomatic of the tension at the heart of ‘contemporary global politics’ (Teitel, 2002, p.893). Despite Teitel’s sound arguments in “Transitional Justice in a New Era” (2002) whereby she argues that globalised transitional justice is in fact too local in its legal approach, it appears instead that globalisation is forcing transitional justice towards the application of liberal globalised principles, such as the rule of law, democracy and human rights while ignoring tout court local specificities and their interaction with global political mechanisms. In fact, Nagy affirms that the actual impact of globalisation on transitional justice is that its response to local realities is made in globalised legalistic terms which are too abstract if the aim is to positively engage with local ‘lived realities’ (Nagy cited in Teitel, 2002 p.276). Similarly, Hinton suggests that by considering justice as something transcendent and universally applicable, the local perceptions of justice are ignored and this dooms transitional justice to certain failure (Hinton, 2010). By analysing the case studies of Nigeria and East-Timor, this essay will show that Teitel’s arguments on the globalised nature of transitional justice, as well as its ‘independent potential’ (Nagy, 2008, p.277) in shaping political and social transitions, are not universally applicable. The independent power of justice is not effective ‘in societies such as those of the Arab world […] where the secular assumptions of a globalised liberalism are rejected by significant segments of the population, as well as important political actors’ (Robins, 2015, p.287). Consent and legitimacy are clearly a conditio sine qua non if transitional justice is to be efficient in allowing war-torn societies to come to terms with past violence and repression. In line with Nagy’s argument, the case studies will prove that globalised transitional justice is often blind to the very local needs it tries to engage with.

Globalisation not only influences transitional justice in the application of an international legalist paradigm far from local realities, but more importantly it also alters the objectives of transitional justice. Globalisation often results in the devolution of the nation-state paradigm whereby the traditional state power is heavily constrained, hence transitional justice has a shift in its goals: whilst originally aiming at bringing about democracy and the rule of law, globalisation forces transitional justice to pursue more modest goals of peace and stability, and more generally human security (Teitel, 1999; 2002; 2014). The question is whether this kind of response brought about by globalisation is more appropriate and universally applicable than the original aims of the rule of law and democracy. As touched upon in the definition of globalisation and global politics, there are today new actors besides the traditional and supreme agency of states in the international arena; this development must necessarily mean that there are more interests at stake which are not only linked to states but also to transnational NGOs and more generally to the global civil society (Nye, 1990). From a normative perspective, it is plausible to think that by promoting peace, the rule of law and democracy will necessarily come along. However, as Teitel (2002) argues, it is unclear how short-term peace-making operations will eventually bring about the advancement of the rule of law. Given these considerations, the question regarding the appropriateness of today’s transitional justice objectives as imposed by globalisation can hardly be answered, especially in normative terms. Nonetheless, it can be argued that the recent focus of transitional justice on general human security is more applicable to highly diverse local realities than the liberal principles of rule of law and democracy (Teitel, 2014).

Glocalisation

The progression of transitional justice with globalising politics implies a bi-dimensional interaction of the supranational/global and the national/local. To analyse this interaction, Roland Robertson (1994) uses the term glocalisation, which he intends as a deconstruction of globalisation. The term synthetises the broader concepts of globalisation and localisation not as an antinomy but rather as being in a continuous interaction whereby ‘the global is not in and of itself counter posed to the local’ (Robertson, 1994, p.35). The concept of glocalisation does not modify the considerations made with regards to globalisation’s impact on transitional justice; nonetheless, it helps to understand the complex dimension where transitional justice operates and how it could be improved. Robertson (1994) argues that it is incorrect to see the local assertions of norms, rules and identities as against, and at the same time, challenged by globalising trends. Transitional justice should ultimately work for the connection of these dimensions – supranational and national, universal and particular. That is, by looking at transitional justice through glocal lenses, the former could be envisaged as a tool where the global and the local are harmonised and in mutual complementarity, rather than an international legalist paradigm which works at the expense of local assertions of justice.

Therefore, it can be argued that the glocalisation discourse could help transitional justice overcome the traditional polarity between the global and local found in both Teitel and Rosemary Nagy’s works on the globalisation of transitional justice. In this sense, Robertson (1994) refers to the idea of a global culture as ultimately informed and shaped by local cultures. This interconnectedness, in Robertson’s thinking, does not envisage global culture as a mere ‘homogenisation of all cultures’ (1994, p.31). On the contrary, when one refers to the idea of global justice, it can be argued that rather than trying to engage with and be receptive to local conceptions of justice, transitional justice might eventually end up becoming a homogenising tool for global justice. When the global Westernised justice paradigm completely ignores local needs, local specificities and societal demands are likely to put into question the legitimacy of one-size-fits-all international legal institutions as the International Criminal Court. This was exactly the case in the context of Rwanda and Uganda’s transition to democracy whereby Rwandan neo-traditional gacaca courts – community-level courts based on Rwandan traditional law – and Uganda’s mato oput – ceremony set up for reconciling former enemies – and other traditional cleansing ceremonies were preferred and called upon by the local populations vis-à-vis the International Criminal Court-led procedures (Nagy, 2008; Andrieu, 2010). Both cases eventually demonstrated how justice at the local level can be, in specific circumstances, much more effective and appropriate in order to pave the way for de facto reconciliation in conflict-ridden communities. Unfortunately, the conceptual underpinnings of the transitional justice discourse are still too reliant on global vs. local antagonistic perspectives. A glocal approach, instead, would be most appropriate in picking up what is useful from global liberal practices of justice, without dismissing the importance of allowing local communities to find their own way to deal with past sufferings (Robins, 2014; Schabas, 2005).

Liberalism

Robins (2014) draws a line between liberalism, globalisation, and transitional justice. ‘Liberal hegemony has permitted globalisation, not just of rights but also of neoliberal economics, and it is no coincidence that the goals of transitional justice align perfectly with the integration of transitional states into global markets’ (Robins, 2014, p.187). A globalised liberalism manifestly informs transitional justice. The relationship is clear: regardless of the realities transitional justice encounters, the traditional response is built on the imposition of a series of liberal normative goods ranging from the rule of law to human rights, from combating impunity to ultimate justice (Robins, 2014). Spence (2010) notices how the US’s response to 9/11 led the Bush administration to implement transitional theory and practice which ‘hijacked the tenets of liberalism, emphasising the universal appeal and relevance of democratic government and the free market for countries labouring under oppressive rule in the Third World in particular’ (Spence, 2010, p.4). However, unconditional appliance of the liberal paradigm to transitional justice is far from being unchallenged.

In theoretical terms, Kora Andrieu (2010) notes that the liberal character of transitional justice stems from its top-down approach to state-building which means that the primary focus of transitional justice is on high politics, namely building democratic institutions. Andrieu goes on to argue that looking at the deep politics of society, which is what the people mean to be legitimate in terms of governance, would be more effective in nurturing democracy in the state. Andrieu (2010) observes that liberal transitional justice is effectively committed to the building of democratic institutions – often unsuccessfully. According to Andrieu (2010), transitional justice’s primary objective should instead be about promoting a culture of democracy through a more spontaneous bottom-up approach. The global liberal paradigm that transitional justice brings about translates not only to an unbalanced focus on high-politics over civil society’s interests, but also in the excessive privileging of political rights over economic and cultural ones (Andrieu, 2010). Little attention is paid to the relationship between transitional justice and development because the actual model of liberal transition ‘focuses only on liberalising growth and marketisation without taking into account wider demands for social justice’ (Andrieu, 2010, p.544). This is also argued by Renaut (2005) who claims that transitional justice should be more detached from the liberal-legalist paradigm which favours political rights of freedom and liberty and which overlooks cultural, social and economic rights. A top-down state building approach to transitional justice and the fact that it glosses over social, cultural and economic rights in favour of political ones, ‘show the limits of the state-based, legalist and neoliberal approach to transitional justice’ (Andrieu, 2010, p.554). The following section will back up the arguments hitherto made by demonstrating how transitional justice unsuccessfully connects local needs and globalised politics when it is either too global or too local.

Transitional justice in operation: relevant case studies of local dynamics affecting and affected by global politics

Going beyond the traditional examples used by transitional justice academic enquiry, such as those of Rwanda and Uganda, the rest of the article focuses on two overlooked cases: Nigeria and East-Timor. The former shows how global liberal values can be manipulated by local extremists when the appliance of transitional justice highlights the hypocrisy of the liberal paradigm felt by the local population. The case of East-Timor illustrates how excessive reliance on local forms of justice – which are nevertheless instructed with liberal dictates in their quest for accountability – risks losing sight of transitional justice’s very objectives, that is, the fundamental pursuit of justice and the search for truth.

Transitional justice in Nigeria: when violence is conducted in the name of liberal principles

Growing violence in Nigeria is an issue that has recently received international attention due to the mass killings by the terrorist group Boko Haram in 2009 (The Guardian, 2009). Prior to this tragedy, Nigeria had been experiencing protracted violence as a means of enforcement of the Sharia law. Effectively, in the early 2000s, Nigeria transitioned to a civilian democratic government after the country’s military coup d’état in 1966. The democratisation process of Nigeria is still on-going and since its beginning in 1999, it has been characterised by violent conflicts ‘over the legal bounds of identity and citizenship, civility and criminality, with armed youths the new agents of policing’ (Casey, 2006, p. 119). Such violence, as Hinton argues, results from the ‘vernacularisation of liberal ideals associated with transitional justice in northern Nigeria’ (2010, p.12). The example of Nigeria and its transition from military to democratic rule is emblematic of a particular dynamic of interaction between globalised politics and local needs as mediated by transitional justice. In this specific case study, it is shown how local religious, social norms and beliefs can interact with liberalism, global justice and globalised practice in a way that the global is adapted by the local and made fit for it, whereas often the reverse occurs. Hinton synthetises this argument by affirming that Nigerian ‘youth, enmeshed in the intersection of liberal universalism […] and their on-the-ground observations of the world, actively construct their identity, moral and social status […] through a violence they assert as just’ (Hinton, 2010, p.13).

Beyond the transition process, what is relevant is the reaction of Muslim youths, particularly in Kano State, towards their forced induction to liberal universalism and the imposition of global ideas operated by Western European government personnel and the Nigerian leadership (Casey, 2006). The violent enforcement of Sharia law stems from the felt hypocrisy of Kano youths which resulted from the clash of espoused and imposed liberal ideals with the recollection of a hurtful colonial past and with the ‘mediated images of Abu Graib […] and the war in Iraq’ (Casey, 2006, p.120; Nye, 2008). Muslim Hausa are the majority of the population and their adoption of Sharia is claimed to be democratic on the grounds that, simply put, they are the largest ethnic group. They consider Sharia as a democratic alternative to the new allegedly-democratic government which they instead perceive as a “recolonisation” and the expression of the global war against Muslims combined together (Casey, 2006). The mechanism whereby the global is adapted by local actors and is made fit for their needs and social demands is clear in the Nigerian case. As argued by Casey (2006), the Muslim Hausa manipulated the language of human rights and what they see as the democratic principle of majority rules to give legitimacy and implement Sharia. The felt hypocrisy of espoused liberal universalism motivates Kano youth to use violence as a legitimate means of ensuring justice. The latter is ‘based on the idea of democratic majority Muslim Hausa rule’ and as Casey concludes is at ‘the cross roads of liberal universalism […] and religious orthodoxies where yan daba [Nigerian urban ward gang members] and Hisba [the enforcing wing of the Sharia Implementation Committee] enter the realms of blood sacrifice’ (Casey, 2006 p.133). In other words, this case study epitomises a core issue of transitional justice which is the friction/reaction between globalised politics and local needs; an ultimate tension of the global politics discourse between the supranational and national.

The peculiarity of this case however stands in an unusual process, whereby the local appropriates global discourses through transitional justice in such a manner that the manipulation of global liberal principles is used to empower local religious extremism. The balance of transitional justice between the local and global is in favour of the local in a very distorted way, which eventually results in regionally concentrated violence being conducted in the name of liberal universal principles.

Transitional justice in East-Timor: international justice cannot be a chimera

Protracted violence that occurred in East Timor from 1974 to 1999 was the direct consequence of Indonesian President Soeharto’ invasion and subsequent annexation of East Timor. When the country was freed from Indonesian chains in the late 1990s, the UN Transitional Administration in East Timor (UNTAET) set up the Special Panels of the Dili District Court to investigate the crimes committed during the Indonesian occupation. Through the case study of East-Timor, Elizabeth F. Drexler (2010) further supports the thesis that success for transitional justice does not stand either in the blind appliance of international legalist principles or overly-local forms of justice. It is rather in the concurrence of the two dimensions that transitional justice can effectively meet local needs while remaining in harmony with globalising politics. Drexler argues that an excessive localisation of accountability for the crimes committed during the conflict made it impossible to identify the very perpetrators of several human rights violations during the Indonesian occupation; violations which were in fact committed by international actors, of which many were indeed Indonesians but also included a significant number of Western countries who indirectly upheld the Indonesian military occupation, such as the US (Drexler, 2010; Nagy, 2008).

On the one hand, the case of East-Timor shows how the international legalist paradigm too often sees justice in terms of accountability rather than advancing the very objectives of transitional justice, that is, intergroup and national reconciliation (Drexler, 2010). However, if it is true that accountability and consequent prosecutions are somehow essential to move on after prolonged periods of human rights violations, it is also true that when the burden of justice is completely left into local hands in the hope that global legalist norms will be upheld, the consequences are unforeseeable. The hybrid courts set up for East-Timor proved to be ineffective in bringing justice. The UN, in fact, created a Special Panel for holding perpetrators accountable. However, its jurisdictional prerogatives were highly criticised for being too local in their reach. With very little cooperation from the Indonesian authorities, the East Timor Tribunal trials ended up leaving many Indonesian alleged perpetrators of human rights violations and other foreign actors almost unpunished (Drexler, 2010).

When affirming that transitional justice needs to take what is useful from the global liberal practice, one is referring to such tools as an international legal framework covering human rights violations with both de jure and de facto jurisdiction and enforcement power. In the case of East-Timor that would have been crucial to address ‘the international components of injustice and their implications in the conditions of possibility for specific acts of violence’ (Drexler, 2010, p.51). International tribunals charged with the upholding of the international legal framework for human rights violations would certainly help bringing powerful non-Timorese actors to justice (Drexler, 2010). East-Timor demonstrates that there are instances where the international legalist paradigm can fail, such as in the unconditional demand for accountability rather the reconciliation. Nonetheless, it also shows that the global liberal practice has much to offer in the pursuit of justice and truth. For example, the absence of an international tribunal prosecuting human rights violators translated into the impossibility of bringing foreign actors involved in the violence before a court.

Both case studies lead to the conclusion that the appliance of transitional justice needs to be balanced between global and local dimensions and that the liberal practice is not a one-size-fits-all solution. In Nigeria, the hypocrisy of espoused liberalism led to violence. In East-Timor, the almost absence of international legal practice left non-Timorese human rights violators unpunished. As these cases show, even if in quite diverse circumstances, transitional justice is not currently effective in connecting globalised politics and local needs.

Transitional justice at crossroads

The analysis in this article sheds light on how the process of globalisation – entailing what is defined as a global human rights regime – together with ‘liberal democratic politics and neoliberal economics’ (Robins, 2015, p.190), does affect the role of transitional justice in mediating globalised politics and local needs. In light of that, this article argues that if transitional justice is to be effective in the connection between globalised politics and local needs, it will have to take from the ‘global liberal practice what is useful’ (Robins, 2015, p.190) whilst always supporting locally-contextualised communities to find their own way to come to terms with a tormented past (Robins, 2015). In short, transitional justice needs to be more glocal in its approach. To be sure, whether transitional justice’s revised approach will bear fruit is not certain but it is quite clear that, at least for the time being, transitional justice is unable to bridge the gap between globalised politics and local needs. Transitional justice now faces a choice between persisting in trying to instill liberal practices with little success, or attempting to glocally collide ‘strategies, institutions and norms of a global practice with everyday lives of local actors impacted by violations’ (Robins, 2015, p.188).

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20 Years Later: The Role and Value of Traditional Justice Mechanisms for the International Criminal Court and for the Future of Transitional Justice

By Dr. Ingrid Roestenburg-Morgan

Dr. Ingrid Roestenburg Morgan is a Senior Research Fellow with the Institute for Justice and Reconciliation.

What is Justice? This is a question that I would like to open up for thought in this special edition of the R2P Student Journal that addresses the topic of traditional justice, mainly in light of the transformative context of transitional justice but equally as important in light of the 20th anniversary of the International Criminal Court’s Rome Statute, both of which have dealt with the concept of justice in varying ways. The International Criminal Court (ICC), for instance, determines that justice means “the ending and preventing of impunity of serious crimes” through prosecution (Article 4, Rome Statute, 1998). This is in line with the Preamble of the Rome Statute and in line with article 53 of the Rome Statute (OTP Policy Paper, 2007, pp. 8-9). In other words, the ICC makes it clear that justice should not be relegated to moral or practical disagreements of the term, but rather to the law which is the Rome Statute. Transitional justice proponents on the other hand see justice as “the full set of processes and mechanisms associated with a society’s attempt to come to terms with a legacy of large-scale abuse in order to secure justice, achieve accountability and achieve reconciliation” (Annan, 2004, p. 4). In other words, transitional justice proponents rely on both judicial and non-judicial processes to successfully realise justice needs for post-conflict societies and their citizens (Villaba, 2011).

These differing views on justice effectively open the meaning of the term to scrutiny and debate. From current postmodern viewpoints many theories substantiate these variations and often hold that the concept of justice is open to some degree of personal interpretation (Young, 1997). Justice is thus open to change, critique and the diverse accommodation of social forms, meaning that the term cannot mean the same thing to different people, races, cultures, groups or societies (Young, 1997). For instance, justice could mean something very different to a person who has faced an ordinary crime in a context of normality, in comparison to a person who has faced massive and atrocious crimes in exceptional contexts of transition (Uprimny and Saffon, 2006). Justice also holds differing and varied connotations for societies on the brink of transition in comparison to societies which have remained in peace for years or decades (Mbeki and Mamdani, 2014).

Currently however, it is generally understood that the term justice represents morality, ethics, rationality, law, religion, equity and fairness, and that the two most important variations or discourses that pervade contemporary criminal justice processes are the retributive and restorative justice models (Rawls, 1981). The right to justice, as we currently understand it, basically means that individuals must have the ability to have effective access to justice, which forms a fundamental part of the rule of law (American Bar Association, 2018). Where access to justice is not readily available, victims in particular are at a disadvantage, because they cannot exercise their rights nor challenge any type of discrimination effectively enough (American Bar Association, 2018).

Currently, there is a presumption that justice can be best secured primarily through a retributive system advocating for prosecution and punishment (Moscati, 2015, p. 9). However, considering the complexity of post-conflict societies, where often the role of victim and perpetrator are switched during conflict and where roles have become blurred during ongoing hostilities, ensuring adequate access to justice for both victim and perpetrator is no easy task, and a purely prosecutorial or retributive approach to justice may not in each and every instance be suitable (Morgan, forthcoming, p. 141). This would be the case especially if prosecutions threaten to undermine or destabilise a country or if they threaten to marginalise or disempower the main stakeholders in the justice process, such as victims (Morgan, p. 141). As a result, more holistic approaches to justice have been advocated for, where in some instances both retributive and restorative elements of justice feature (Villaba, 2011). The interaction and interdependence of both theories of justice has accordingly paved the way towards the discipline of transitional justice as we know it today where, because they face complex internal disputes, states are burdened with the responsibility of moving their societies from chaos to stability. As a result, states are expected to find the right reconstructive measures to secure peace, reconciliation and justice for successful transition to take place (Morgan, p. 141).

In the context of Africa, transitional justice has essentially found its roots in the use of traditional justice. Since the 1990s there have been a plethora of judicial and non-judicial mechanisms employed by African states, which very often featured restorative tenets of justice such as forgiveness, friendship and compassion between victim and perpetrator, thus mimicking transitional justice as we know it today (International Peace Institute, 2013, p. 27). These justice mechanisms have been referred to by a variety of names including traditional justice mechanisms, alternative justice mechanisms and local justice mechanisms. The goal of traditional justice mechanisms as understood from an African perspective must be seen to secure reconciliation and national unity by drawing on cultural or religious linkages (Morgan, p. 141). Examples of the latter mechanisms include several truth commissions that have been employed in various African countries such as in Uganda, Zimbabwe, Nigeria, Ghana Sierra Leone and South Africa over the years. Other examples include Gacaca courts in Rwanda, Magamba spirits in Mozambique, Mato oput in Northern Uganda, Kpaa in Sierra Leone and Bashingantahe in Burundi (Huyse, 2008).

The purpose of using such mechanisms has essentially been to address large-scale justice needs, keep the cost-effectiveness of the justice system in check, and most importantly ensure that political reconciliation is achieved as a final goal (Huyse, 2008). But these objectives alone do not necessarily suggest that traditional justice mechanisms provide an adequate measure of justice to victims and survivors of mass atrocities undergoing transition, especially when the context of violence far exceeds crimes that would ordinarily occur on a regular basis (Morgan, p. 141).

Proponents of traditional justice mechanisms nonetheless have stressed the inclusiveness of such systems, which incorporates both victims and perpetrators within the justice process so that these main stakeholders can meaningfully engage and further empower survivors of mass violence. This in turn is beneficial in that it enhances the legitimacy of the justice system in place (Morgan, p. 141). Many of these mechanisms have also been praised for their participatory nature, their flexibility to include both restorative and retributive strands of justice, their high level of truth telling, their ability to secure ‘negotiated settlements’ essential for maintaining peace, the practical implementation of the judgments handed down, and also the very important space that rituals create for discussion on accountability, guilt and restoration (Villa-Vicencio, 2002).

However, based on my recent research into the role and value of such systems it has become clear that these justice mechanisms may function more effectively if they contain elements of both restorative and retributive strands of justice rather than only restorative elements alone (Morgan, p. 141). My findings reveal that purely restorative models of justice will not be able to meet victims and survivors’ justice needs in contexts of mass violence simply because perpetrators wield a diminished sense of personal, moral and legal responsibility characterised by the type of crimes they have committed, where in comparison to ordinary crime, the scale, nature, gravity, and the manner in which the crime has been committed is exceptional (Morgan, p. 141). Furthermore, not all victims find themselves in a position to pardon or forgive their offender, a requirement that is often implicit in a restorative system of justice that functions without any retributive strands (Morgan, p. 141). Additionally, states have a further obligation under international law to prosecute perpetrators of mass atrocities in order to prevent similar crimes from occurring on their territories in the future. In this way, they cannot violate their legal and human rights obligations and thus prosecution is difficult to forego in light of these international obligations (Orentlicher, 1991).

Thus, in order for traditional justice mechanisms to be of value within the transitional justice landscape they would need to undergo “revision” with some form of prosecutorial option at hand to meet the tensions between tradition and modernity. Indeed, complications arise when these justice mechanisms become subject to scrutiny at the international level when for instance they are accompanied with blanket amnesties for perpetrators or when they cannot supposedly meet due process standards of the law (Morgan, p. 141).[2]

At the level of the ICC, this would further suggest that states who proffer the use of traditional justice mechanisms in a challenge of admissibility would need to overcome certain limitations; namely that the justice system in question must meet the requirement of genuineness as elaborated under the ICC’s principle of complementarity as per article 17 of the Rome Statute, and that furthermore such a mechanism should ensure a level of due process of the law (Morgan, p. 141). In terms of the genuineness requirement, this would mean that a mechanism set up hastily and entirely for political reasons without a genuine bona fide intention on the part of the state in question will not qualify. So, for instance, a mechanism set up to shield an accused under the guise of justice to ensure political reconciliation will not qualify under ICC standards if the intention of the state in question to set up such a justice system is only for political purposes and/or to shield the perpetrator from justice and/or to fail to secure justice as an end goal (Morgan, p. 141).

In terms of due process standards, many scholars have been concerned with whether such mechanisms actually need to guarantee a defendant international due process standards. According to my findings, nothing under article 17 requires a state to guarantee international due process of the law, especially because most states parties in a challenge of admissibility would not in reality be able to satisfy such standards. In fact, a proper interpretation of article 17 renders that most states should have a minimum guarantee of due process in place at the national level, which should be afforded to a defendant in order to qualify such a mechanism at the level of the ICC (Morgan, p. 141). Thus, in this regard, the ICC may offer some measure of leeway. Essentially, the quality of justice will be assessed by the ICC as a whole, considering the broader political implications that these justice systems hold individually for victims and survivors and separately for the country on the whole (Morgan, p. 141).

So, in closing, the benefit of traditional justice for transitional contexts may be meaningful if such mechanisms can address both societal reconciliation, which is arguably one component for justice for survivors, and then individually target the justice needs of survivors, contingent of course upon a prosecutorial option being included within the framework of such a mechanism (Morgan, p. 141). When both these tiers of justice can be adequately satisfied then such a justice mechanism may be considered valuable by the ICC. Equally of importance will be the value of these mechanisms to victims and survivors of mass violence, and thus to transitional justice on the whole (Morgan, p. 141). In other words, the use of traditional justice mechanisms in light of the aforementioned assessments should not necessarily be dismissed prematurely based on their often romanticised cultural and religious linkages, but rather they should be thoroughly assessed on their merits and ability to genuinely support both societal reconciliation and individual justice needs, thereby qualifying a deeper definition of justice that post-conflict societies must ensure in general.

[2] Due process includes amongst others the right to counsel, the presumption of innocence, independence and impartiality of judges, right to an adequate defence, the right to testify in one’s defence, the right against self-incrimination, the right to be present at one’s trial, the right not be arbitrarily detained and protection from double jeopardy.

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