Extracted from a larger essay, this is a very brief exploration of some thoughts (mainly, for training purposes). Criticism is welcomed.
INTRODUCTION
Naturally, the debate over ‘peace versus justice’ is an ancient one. A trade-off implies the existence of a dilemma: whether transitional justice procedures are conducive or obstructive to the development or establishment of peace — and vice versa. As such, here, a trade-off is “understood as a balancing of two or more imperatives that are perceived as similarly compulsory and opposed, but partly satisfiable at the same time by exchanging one thing in return for another” (Kraus, 2019, pp.333). Nonetheless, the aim of this exercise is not to advance one perspective over the other.
Given peace and justice are multifaceted concepts, defining the terms and how they interact provides a practical starting point for understanding the aim of this essay. Peace within this context is straightforward, the aim is to generate a peaceful settlement by suspending the violence between conflict participants and establishing a resolution. The metric for success is an agreement that resolves the issues in dispute and the implementation of objectives aiming to suppress the resuscitation of issues that cause conflict. Similarly, the definition of justice within the context of post-conflict societies is also varied. Focusing on three types, first, it can be understood as the most evident of the legal process of the public institution embodying and executing the laws of a society, this justice is retributive (i.e., prosecution and sentencing) and achieved via a judgment of offence that holds perpetrators accountable. On the other hand, there is restorative justice (i.e., amnesties), which seeks to amend relationships to establish order, thus extending the definition to one of reconciliation. And finally, all of them are underlined by procedural justice, which embodies the concept of fairness in assessing how disputes should be resolved and resources allocated.
Moreover, broadening the definition of peace — making the two mutually independent — helps to highlight their complementary nature. Expanding on this by, summarily, employing Johan Galtung’s (1967) theory of ‘positive and negative peace’, which illustrates how they intersect. Negative peace is the absence of violence (1967, pp.17), like a ceasefire; whereas, positive peace is a constitution of positive elements, like truth commissions, that establish a robust, sustainable and lasting peace. Therefore, through this framework, the two realities appear complementary and simultaneously attainable because the potential of a lasting (positive) peace becomes a straightforward conclusion contingent on the implementation of justice mechanisms. This renders the deliberation of a trade-off a false dichotomy. As Mahmoud Cherif Bassiouni (2003) explains, “Peace is not merely the absence of armed conflict; it is the restoration of justice, and the use of law to mediate and resolve intersocial and interpersonal discord” (pp.192).
PEACE VERSUS JUSTICE?
The nexus between peace and justice is a contentious point regarding the development of post-conflict societies. Deciding whether or not peace and justice should take precedence over one another means there are two main conflicting objectives that require examination: on one hand, compromising by pursuing peace over justice and, on the other hand, pursuing justice over peace. For conflict parties, it can be understood as deciding between policies of “forgive and forget” (i.e., amnesty) and policies of “prosecute and punish” perpetrators (Rigby, 2001, pp.2–6). Whereas, for third parties, the question of how they can facilitate a sustainable peace agreement between conflict parties arises — exemplifying the complex nature of peacebuilding and transitional justice. However, Chandra Sriram (2009) notes, the dilemma is oversimplified.
The real challenge is somehow pursuing both peace and justice in tandem. Additionally, for one, scholars and practitioners that advance the first view also acknowledge the value that holding perpetrators of crimes accountable has, but, ultimately, they argue that seeking accountability can induce instability in already fragile post-conflict states (Sriram, 2009). Therefore, it is important to constantly acknowledge that the ‘peace versus justice’ dilemma is complex. Sriram’s argument contends that it is not as simple as wondering about the degree of success advancing with various important justice mechanisms, like amnesties, trials, or truth commissions respectively, have. Consequently, this complexity means justice mechanisms can be problematic, given the goal is an expansive endeavour trying to establish a synthesis of legal, political and ethical approaches post-agreement to create peace and prevent a relapse. This is demonstrated by, for example, the use of amnesties that can lead to an evasion of accountability. In such cases, post-conflict societies risk not reconciling with their past, instead, for example, they will have individuals with a history of past abuses heading post-conflict institutions like governing bodies. And this is the other side of this transitional justice mechanism, where the concept of power-sharing comes into play; where during the peace negotiation stage compromises will be made with such individuals to ensure they do not cause an outburst of conflict.
Relatedly, Kathryn Sikkink (2011) has also argued that it needs to be a “more nuanced debate” (pp.228), thus it would be better to focus on a mixture of different transitional justice mechanisms, the sequence of their establishment, and the contexts within which they are implemented in. For example, the work of Tricia Olsen, Leigh Payne and Andrew Reiter (2010) has attempted to provide a systematic attempt at tackling the inherent complexity. They statistically study the effect mechanisms have on human rights and democracy and emphasise the combination, timing, and order of transitional justice mechanisms. They say that, while there are positive effects on the development of democracy and on human rights, single approaches are too weak to have an absolute positive effect. Thus, a “justice balance” of “a combination of either trials and amnesties, or of trials, truth commissions, and amnesties after a transition works best towards improving democracy and the respect for human rights” (Salehi and Williams, 2016, pp.153).
Ultimately, while reaching a peace agreement is difficult enough, it is usually during the implementation stage that problems actually start (DeRouen et al., 2010). According to Fortna’s findings (2003; 2004), in order to ensure the sustainability of peace, it is imperative specific agreements are met, which in turn minimise the effects of uncertainty. Additionally, conflict parties must have the capacity to implement a sound agreement, especially if the institutions to do so have been weakened during conflict, via a mutually beneficial allocation of resources.
