The Peacemaker's Paradox

Pursuing Justice in the Shadow of Conflict

Priscilla Hayner

• Éditeur: Routledge
• Année: 2018
• ISBN:
  9781351399203
• Édition: 1
• Sujet: Política y relaciones internacionales
• Sous-sujet: Política

Expanding from her path-breaking work in Unspeakable Truths, Priscilla Hayner focuses on a new challenge in The Peacemaker's Paradox: the age-old problem of negotiating peace after a war of atrocities. Drawing on her first-hand involvement in peace processes and interviews from the frontlines of peace talks, the author recounts many heretofore-untold stories of how justice has been negotiated, with great difficulty, and what this tells us for the future. Those with the most power to stop a war are the least likely to submit to justice for their crimes, but the demand for justice only grows louder. She also asks how the intervention of an international tribunal, such as the International Criminal Court, changes how a war is fought and the possibility of brokering peace. The Peacemaker's Paradox looks far and wide, from Gaddafi's Libya to the FARC talks in Colombia, to provide an unparalleled exploration of these thorniest of issues.

A combination of interview-based reporting and political analysis, The Peacemaker's Paradox brings clarity to a field fraught with both legal and practical difficulties.

Part I
Peace and Justice in Perspective

1 The Problem

War crimes hamper peace talks. This is no surprise.

No armed rebels have agreed to disarm and demobilize in exchange for a prison cell. Nor has any country’s military offered to send its generals to jail, even if their complicity in atrocities is clear. Both sides of a war may have committed horrific crimes. But these can no longer be buried in impunity, as may have been true in another era. What to do about these crimes, while prioritizing the need to stop the violence? Thus emerges the classic peacemaker’s paradox: how to obtain sufficient justice without scuttling the possibility of peace.

On the face of it, the problem is perfectly clear: any peace agreement that grants impunity for a war’s serious crimes may risk being short-lived, will be legally questionable, and will almost certainly meet loud opposition from both national and international observers and advocates—whose support will be needed to build a durable peace. But if a mediator insists on accountability, the armed groups will likely resist, and a peace deal may become impossible. Both peace with justice and peace without justice are difficult propositions.

Virtually all negotiated peace processes confront this problem, and even more so now, with the greater reach of international courts. How this dilemma is resolved, or sometimes fails to be resolved, can be startlingly different in different contexts and will often fundamentally shape both the success of a deal and the contours of the peace.

This is evident with a glance at a few examples:

Kenya descended into horrific violence in early 2008 after the official results of a presidential election were deemed suspicious, and anger spilled onto the streets. Soon the country was on the precipice of all-out war, as political and ethnic loyalties merged and the violence spiraled out of control. Former United Nations Secretary-General Kofi Annan led a mediation effort to find a political agreement that would end the violence. Several weeks into the talks, Annan’s team asked me to come to Kenya to help devise a plan for justice and reconciliation, knowing that these crimes, and the intense anger between communities, would have to be addressed. I arrived in Nairobi just hours before Annan secured a critical power-sharing agreement and ceasefire. Kenya celebrated. The relief was palpable. But this political deal was only the first item on the agenda.

I was briefed: the next issue for the parties to address was to be justice. No one had had a moment to plan for this. In the two months since the contested election, over a thousand people had been brutally killed and many others targeted and chased from their home; the parties sitting at the peace table were directly or indirectly responsible. How could this be addressed? My task: propose a solution, or at least a strategy for broaching the issue, when the parties reconvened three days hence.

The good news: the mediation team was supportive and understood the difficulty at hand. The bad news: we had 72 hours to prepare a plan.

We were lucky. After consultations and brainstorming, especially with Kenyan experts, we felt ready to gently suggest a model specific to Kenya that responded to the demands and dilemmas at hand. The idea was fairly simple: the appointment of an independent commission to investigate the post-election violence, with powers to recommend prosecutions and also to make recommendations to a longer-term truth commission that would follow. Both parties immediately accepted the idea, each insisting that justice was essential for what they and their supporters had suffered, and the next day they signed an agreement setting out this plan.

Most peace negotiations don’t resolve their justice quandary so quickly. And of course, many difficult justice issues demand attention as an agreement is implemented. This was certainly true in Kenya, as the possibility of criminal justice was left open and soon emerged as a major political issue, when the legislature balked at taking the necessary steps to allow independent prosecutions. Ultimately, the International Criminal Court (ICC) intervened, which was highly contentious and had significant political ramifications.

While the Kenyan negotiating parties agreed unusually quickly to a means of addressing past crimes, there are a surprising number of similar cases where this issue is addressed very late in a process, or in a very cursory way, and without fully considering the ramifications of decisions reached.

A better-prepared peace negotiation was taking place simultaneously with the Kenyan talks in a directly neighboring country, although ultimately without a successful result. Mediators of the conflict in northern Uganda struggled for two years under the challenge of outstanding indictments from the ICC: they were trying to broker a peace deal with the very people who were subject to ICC arrest warrants. The mediation team tried to construct a justice package that was acceptable to the rebel leadership and complied with the legal demands for accountability, but in the end the rebels balked, refusing to sign. To be clear, their distrust was not limited to this issue, but it played a part. This brutal armed group, the Lord’s Resistance Army, continued to wreak havoc in the region for many years more.

Five years later, when Colombia opened peace talks to end its fifty-year war with the FARC (the Revolutionary Armed Forces of Colombia), the contrast with the process in Kenya couldn’t have been greater. The four years of talks dedicated the most time to the question of how to deal with past crimes and what exactly would happen to those who were complicit in serious abuses from either side of the conflict.

The parties grappled with huge legal and political difficulties related to the question of justice; many observers predicted that it would be impossible to find a solution that was satisfactory enough to give the guerrillas the confidence to disarm while also meeting Colombia’s obligations under both national and international law. The ICC Prosecutor made clear that she was watching closely and was ready to intervene if any agreement didn’t pass muster.

This was one of the last issues to be addressed in the talks. After eighteen intensive months on this subject, including detailed technical input from dozens of national and international experts and emotional meetings between the FARC and government negotiating teams and direct victims of the war, the parties concluded an extraordinarily complex 63-page justice agreement. This essentially set out a new truth and justice system to be created within Colombia’s national legal framework. This was the major turning point in the peace talks. Colombia celebrated. Now, with this justice agreement, everyone realized that peace might in fact be achievable.

Why This Book

Kenya, Uganda, and Colombia are but a few examples of the tension between the demand for justice for crimes of a war and the real limitations that must be faced when brokering an agreement between warring parties.

For a variety of reasons, this issue has been getting more attention in recent years, but the discussion often takes place with a frustrating lack of familiarity with past experience. A common refrain in meetings and conferences that touch on this subject is that we simply don’t know enough to untangle the various policy and legal dilemmas or reach any broad conclusions, despite a considerable number of countries that have confronted these very issues and worked out solutions in different ways.

The intent of this book is to peer behind this quandary and to look at what has actually happened when peacemaking and justice seeking come together, including when they sometimes collide. The book does not delve into great detail on the law and legal parameters; this has been done elsewhere at length. Rather, the intention here is to focus on actual experience and practice in specific cases, and to pull lessons from these. The sometimes overly simplified “peace vs. justice” debate, which has played out among policymakers, rights advocates, and scholars, has relied on selective accounts rather than a comparative or detailed case analysis. The narrow lens of a very few individual countries’ experiences has led to overreaching claims and presumptions that do not always hold up against the broader record to date. Some of these claims have led to quite unhelpful policy prescriptions.

As I ventured into this research, I became increasingly uncomfortable with some of the claims that are repeated on both sides of the argument. The realities of countries at war—always struggling with an extraordinarily complex and painful set of choices, pressures, and risks—are simply not well reflected in some of the positions put forward in the international sphere. It is important to consider the views of those who have lived these experiences most closely and can reflect the nuances and difficult choices they have confronted.

This book offers a comparative look at past (and current) experiences in this realm of negotiating justice, unraveling the complications and dilemmas that have emerged in very different kinds of cases. In brief, the book asks the question, What has been the impact when issues of justice for past crimes have come to the peace table, and how have these dynamics played out? If we take an unvarnished view, what do these experiences tell us?

It is easy to see, scanning the cases, that the impact of “justice” on “peace”—that is, the impact of pushing for accountability for crimes of a war while actively negotiating to end the war—has been (perhaps unsurprisingly) sometimes positive, and indeed sometimes negative. While it used to be common to grant amnesties and essentially turn the page on the past, that is no longer considered acceptable. Rather, there are now both legal obligations and strong political expectations, both nationally and internationally, that serious crimes will somehow be accounted for and attention will be given to victims’ needs.

For the first time, slowly taking shape over the last fifteen or twenty years, the world is confronting the realities of real legal limits on the level of impunity that can be granted to combatants for war crimes or crimes against humanity. If combatants demand such immunity as a precondition to setting down their weapons, and especially if an international prosecutor has jurisdiction to open a case against such persons, the inescapable difficulties quickly become clear.

This is not only a question of international justice, as the threat of national trials equally presents a challenge. But the possibility of justice clashing with national peace processes has become more likely as the reach of the International Criminal Court has expanded. It is now clear that this Court is investigating crimes primarily in contexts of ongoing armed conflict, rather than after a war has ended. This naturally raises questions. Indeed, as I will show below, the involvement of an international prosecutor has influenced in fundamental ways the course of peace processes or the possibilities of a negotiated peace in a number of different contexts.

Two Core Questions

The first issue that this book will consider is how human rights violations and war crimes have been addressed during peace negotiations. This has been a significant challenge. Nevertheless, there is a growing recognition that, with creativity, conviction, and a nuanced understanding of justice, rights, prevention, victims’ interests, and the reality of local constraints, it is possible to address the imperatives of both peace and justice.

A second and distinct issue is how international criminal courts may affect ongoing or planned peace talks, or affect the war itself. Investigations, indictments, or arrest warrants against persons engaged in peace negotiations—by the ICC or another international tribunal—will impact peace talks. The relatively new factor of an independent international prosecutor can be destabilizing to peace efforts.

Both of these issues—how a peace agreement handles accountability and the impact of international prosecutions—may directly affect the stability of peace in the long term. On the one hand, granting impunity for well-known human rights abusers, and failing to compensate victims and investigate the truth, could lay the ground for further abuses and win thin support for the peace by the most-affected population. On the other hand, a move to prosecute those taking part in peace talks or those who signed the peace could bring peace negotiations to an end or put a newfound peace at risk.

These two questions are distinct, but they ultimately point to the same core problem: threatening to bring leaders to justice makes peace negotiations more difficult. Both sides to a conflict might easily agree that the rule of law and functioning judicial systems are critical to a healthy, peaceful society, but they are likely to resist applying these laws and principles to themselves, at least in relation to events of the war.

Structure of the Book

This book considers the experiences of many different countries that have struggled with these questions.

Part I is focused on cross-cutting thematic issues. Chapter 2 explores the overall parameters of the peace-justice debate and the contrasting perspectives of those in the peace mediation and human rights fields. Chapter 3 and Chapter 4 then delve into more detail of how justice has been negotiated in specific cases, and how these issues continue to be effectively “negotiated” long after a peace agreement is signed.

The following four chapters turn to the impact of the ICC and other international courts on peace negotiations and conflict. Chapter 5 explores what this impact has been in specific countries in the midst of (or hoping to begin) peace negotiations; Chapter 6 assesses more specifically whether international courts have helped to deter or prevent war crimes. Chapter 7 argues that there is considerable discretion for international prosecutors to choose how and when...

Table des matières

• Cover
• Title
• Copyright
• Contents
• Acknowledgments
• Part I Peace and Justice in Perspective
• Part II Case Studies
• Index