Transitional Justice and Ongoing Conflict
18 Pages Posted: 14 Feb 2012
Date Written: November 1, 2011
The field of transitional justice (TJ) emerged out of attempts to give theoretical meaning to ad-hoc accountability policies adopted as part of broader processes of political democratization in Latin America and Eastern Europe. From these beginnings TJ has dramatically expanded in scope and ambition. The hugely increased normative ambitions of TJ are nowhere more apparent than in practices of judicial intervention in situations of ongoing conflict. Such interventions have brought the field of TJ in much closer contact with the related, but distinct, fields of conflict resolution and peacemaking (or peacebuilding). Peacebuilders have also dramatically expanded their policy objectives beyond the cessation of armed conflict to include the establishment of a sustainable peace, the neutralisation of the incentives for a return to conflict, and the realisation of a variety of accountability and rule of law strategies. This chapter accounts for the expanding normative ambitions of the field of TJ and evaluates the implications for TJ of its involvement in ongoing conflicts. It also suggests some tentative ways for TJ to recast its engagement with ongoing conflicts.
The chapter is divided into three parts. The first examines the ways in which TJ is increasingly embedded in conflict resolution and peacebuilding efforts and evaluates the relatively recent trend towards judicial intervention in ongoing conflicts. It examines two main underlying trends that drive these developments: the intractability of contemporary armed conflict, and the dramatic development of the ‘global accountability regime’ and the associated expansion of the rights of victims. It also briefly assesses the normative and operational overlaps inherent in the ambitious agenda of ‘liberal peacebuilding’.
The second part analyses three particularly significant aspects of judicial interventions in ongoing conflict. First, the move towards judicial interventions in ongoing conflict is anchored in a consequentialist logic that has generated increasingly strident demands for empirical evidence of TJ claims. Yet, in part because of the complex and indeterminate causal pathways of such claims, robust empirical evidence is still lacking. Second, the internationalization of transitional justice has created significant tensions between international and local agency. Yet, the problematic effects of international judicial pressures are also exacerbated by local institutional fragility and by attempts to implement TJ in highly inhospitable conditions, including in the absence of any discernible political transition. Third, the dominance of legal and judicial approaches to TJ has tended to privilege retributive forms of justice in ways that often are not conducive to conflict resolution or political and societal reconciliation. But the judicialization of TJ also runs the risk of obfuscating politics in ways that almost invariably benefit elite interests.
The final part of the chapter attempts to move beyond the current theoretical and policy impasse by outlining a proposal for a (possible) way forward that emphasises the complexity inherent in the field of TJ. It also provides brief reflections on the contours of a prudent, incremental, and politically attuned strategy of TJ engagement with ongoing conflict.
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