Reconciling Order and Justice? New Institutional Solutions in Post-Conflict States.

• Author: Sieff, Michelle

From the killing fields of Cambodia to the Dirty War in Argentina, from apartheid to the Nazi genocide, from Nyarubuye in Rwanda to Srebenica--these words symbolize the capacity for what the philosopher Emmanuel Kant called radical evil."(1) In the aftermath of mass atrocities, how do new governments settle accounts with the past while reconstructing a new political order? In international politics, political leaders weigh the tradeoffs between confronting injustice and securing peace. Jose Zalaquett, a Chilean human rights activist, describes the tension succinctly:

Ethical principles provide guidance but no definite answer. Political leaders cannot afford to be moved only by their convictions, oblivious to real-life constraints, lest in the end the very ethical principles they wish to uphold suffer because of a political or military backlash.(2) Despite the demand for justice by human rights organizations, the media and other advocates, policymakers have most often deemed the pursuit of justice unrealistic when faced with the challenge of maintaining order in conflict-torn societies.

The conventional view that placed peace and justice at loggerheads is receding as human rights concerns gain credibility and are integrated into political discourse across the globe. In the past two decades, there has been a proliferation of new institutional solutions designed to reconcile the goals of justice and peace. In Argentina, Chile, the Czech Republic, South Africa, Rwanda and the former Yugoslavia, political leaders have designed domestic tribunals, international tribunals, national truth commissions, amnesties and lustrations.

In this article, we attempt to explain why political elites choose different institutions and how these choices reflect an effort to reconcile the tension between justice and peace in different political contexts. We ask why South African leaders chose a truth commission, which focused on public acknowledgment of atrocities without formal punishment, while international and domestic elites sought full-scale prosecutions for the former Yugoslavia and Argentina--in the former case through an international tribunal and, in the latter, through domestic trials.(3) Elsewhere, in Rwanda, both international and domestic prosecutions have been pursued concurrently Despite a growing interest in this topic, there is little work that is both theoretical and empirical and examines the specific factors that shape the strategies elites select to deal with the past.(4)

We argue that institutional design is a function of the balance of power, the role played by transnational advocacy networks and the goals of political leaders in post-conflict states. The outcome of conflict, specifically whether conflicts are resolved through military defeats or negotiated settlements, and its effect on the balance of power influence the range of options for transitional justice. Through the strategic use of information and symbols, transnational advocacy networks disseminate knowledge about the nature of crimes and place human rights issues on the political agenda. Political leaders must balance these constraints and pressures with their own goals. Because they are directly involved in negotiating peace agreements and transitions to democratic rule, the goals of peace and reconstructing order are foremost in their minds. However, some policymakers are increasingly concerned with issues of justice. Whether leaders view peace and justice to be reconcilable goals is crucial for understanding the institutions they choose to deal with the past.

To demonstrate our argument, we focus on transitional justice in the former Yugoslavia, Rwanda, South Africa and Argentina.

BALANCE OF POWER

The outcome of conflict and its effect on the balance of power set the parameters for the application of norms of justice. We examine two ways in which conflicts are resolved--military defeats and negotiated settlements--and assess how these affect institutional design. Where the former regime suffers a military defeat, the ensuing concentration of power in the new regime makes domestic and international prosecutions a viable option. In conflicts that are resolved through a negotiated settlement, domestic prosecutions are not likely to be a realistic option. Negotiated settlements diffuse power among the warring parties such that no one group can impose its will. Consequently, the prospects that domestic parties will agree to prosecutions is unlikely, and external intervention will most likely be necessary for legitimate prosecutions to take place.

Historically, crimes against humanity and violations of the laws of war have only been prosecuted when there has been a complete defeat of one party to the conflict. In the Second World War, a total victory and subsequent occupation of Germany allowed the Allied powers to prosecute Nazi war criminals. This led many to argue that trials were only possible "once an army sits atop its vanquished enemy ... A trial, Nuremberg taught, puts the symbolic seal of justice on what armies have rectified with force."(5) Similarly, in civil wars, a total defeat of the regime enables new elites to prosecute the perpetrators of atrocities. For example, in Rwanda the Rwandese Patriotic Front's military defeat of the Hutu regime made domestic and international prosecutions possible. In Argentina, the defeat of the military in the Falklands/Malvinas War enabled prosecutions of the junta after the democratic election.

More recently, institutions of transitional justice have been designed in conflicts resolved through negotiated settlements. In these cases, no single party has had sufficient power to impose its desired form of transitional justice. Instead, multiple parties have shaped the settlement, each with the power to reject solutions that threaten its political interests. In South Africa the African National Congress (ANC) found itself unable to defeat the apartheid regime militarily. Its pursuit of a negotiated settlement, resulting in the 1993 interim Constitution, limited the prospect for prosecutions and opened the space for an alternative form of transitional justice. In the former Yugoslavia, an internationally negotiated settlement distributed power among the three warring parties. No one party was able to impose its will, and cooperation on domestic prosecutions was absent. International involvement was therefore necessary for prosecutions to occur.

The role of power in limiting and shaping the range of possible institutional solutions should not be understated nor can it be ignored by those responsible for designing institutions. Power alone, however, does not determine institutional design nor can it provide a sufficient explanation for the rare circumstances when leaders choose to establish institutions for justice. Rather, we argue that the balance of political forces at the end of a conflict precludes certain institutional options and makes others more likely. As we suggest below, the strategies used by transnational advocacy networks play a critical role in placing the issue of transitional justice on the agenda of key decisionmakers.

TRANSNATIONAL ADVOCACY NETWORKS(6)

The dissemination of knowledge about violent crimes by transnational advocacy networks of domestic and international human rights organizations, the media and policy activists plays a critical role in mobilizing public opinion and pressuring state elites to hold the perpetrators of crimes accountable. Members of these networks have worked to frame the issue of accountability in such a way that it undermines the traditional realist belief that securing peace requires sacrificing justice and replaces it with the idea that justice, or at a minimum, truth, is essential to creating a lasting peace.

Transnational advocacy networks place human rights concerns on the public agenda by framing them in innovative ways. Members of these networks rely in particular on what Margaret E. Keck and Kathryn Sikkink refer to as "information politics" and "symbolic politics" to legitimate a focus on international justice and to persuade and pressure governments to act. By using information strategically, transnational advocacy networks generate a discourse about atrocities that shapes what is considered to be an appropriate response and increases the cost to policymakers of not responding. The strength of this network is its ability to generate credible and "politically usable" information and "move it to where it will have the most impact."(7) Advocacy networks also rely on symbolism--or symbolic politics--to mobilize collective action around a human rights agenda. Stories, actions and names are used to interpret events for audiences that have little understanding of foreign conflicts.(8)

Through these strategies, transnational advocacy networks produce knowledge about crimes that pressure governments to respond. Below, we highlight three ways in which information politics and symbolic politics are used: to generate and disseminate quantitative measures of violent crimes, to name the crimes through stories and testimony of victims and to advocate specific solutions.

Generating Quantitative Measures of Violent Crimes

The quantitative measures generated and distributed by transnational advocacy networks shape both elite and mass perceptions of the seriousness of violent crimes and, correspondingly, the range of responses that are considered either appropriate or politically viable. Human rights organizations, in particular, document and report the numbers of deaths, rapes and other abuses in order to mobilize public awareness and shape the policy agenda. Governments sometimes lack comparable access to critical information. U.S. Ambassador-at-Large for War Crimes David Scheffer has argued that "Human Rights Watch can get to places we can't go and get information we can't get ... I find their research, their raw information, to be extremely...