For this assignment you are asked to work with a colleague via Skype, or other video-conferencing website. Discuss the following questions with your assigned colleague. After you discuss with them write a brief summary of your discussion in this forum.
I was unable to connect with my partner, so I answered the questions based on my personal experiences and learning in this course thus far...Again, please forgive me if any of my thoughts or observations seem naive, I am fairly new in my formal study of these subjects, so I feel I still have a lot to learn!
Q:1
I feel the goal of a 3rd party intervention should have a couple different layers (best case scenario of coarse, and based on my elementary experience). I also believe that each case should be handled individually. There is no “formula” and each set of circumstances should be handled as such. The ultimate goal should be a combination of peace, attempted restoration through eventual justice, & prevention so history is not repeated. One of our very first readings discussed the fact that very little attention is paid to laying the groundwork to prevent future incidents & if done well the combination of peace building and justice for human rights can hopefully establish sustainable peace.
The 3rd party should attempt to put an immediate stop to the violence. I don’t believe justice can be done in the middle of conflict. Time away from the travesties as well as fact-finding must take place. Once peace has been established, the 3rd party can work towards sifting through both sides grievances & terms. Then begin the long-term goal setting for both sides, which I would hope, would include measures of justice against the perpetrators.
I don’t believe you can really have peace without justice and vice versa, justice without peace, but they don’t always have to happen at the same time. I think there has to be peace before there can be justice, but for peace to last there needs to be justice. I understand the methodology behind amnesty, but to be honest, the justice seeker in me can’t stand the thought of sick perpetrators like Kony, Charles Taylor, religious extremists or even Hitler getting away with what they’ve done. Even a lesser sentence for the horrendous crimes is not ok to me. I would be willing to wait on the justice portion if the full weight of their crimes were eventually going to be brought to justice. I could swallow the idea of local amnesty, but definitely not full.
I think bringing in the human rights violations is good as long as it is done at the right time & under the right terms. For example in the readings, where the human rights report was released in the middle of mediation was a terrible set back. But when it was used as leverage against the perpetrators it added a whole other element. The whole process is delicate and must be mediated individually and with care.
Q: 2
I haven’t personally experienced tensions between HR & ADR yet, but I have witnessed it from afar when I lived in Kenya a couple years ago. I moved there right after their political elections and the tribal-incited violence that rose out of it. Over 1,300 people were killed in the violence, which arose because one party of a certain tribe made false accusations & brought up past offenses against the oppositions tribe. The violence died down after a few months but to this day the perpetrators have not been held accountable and even remain in office!
I have continued to go back to Kenya since I lived there and it is still a sore subject among Kenyans, because justice has not been done. Kenya had new elections last year and were relatively peaceful. There were a few flair-ups here and there, but for the most part the people of Kenya wanted peace and made every effort to quell any violent tendencies. If you ask them, the people are still angry about what happened and how the perpetrators have not been brought to justice, but they are not willing to revert back to their violent tendencies in 2008. I was really impressed by the nature of the Kenyans & their fight for peace even though justice had not been done. Even though there were a few campaigns that tried to re-incite what happened in 2008, the people stayed committed to peace.
I can see how there would be tension between HR & ADR, but before this class I didn’t see how big the differences could be, but also how complimentary they are when they play on each others strengths and weaknesses. For example, using peace as the vehicle to stop the immediate violence, using the HR reports for information and leverage, & setting up new policies that incorporate human rights for the foundation of a peaceful future.
Thank you!
I am sorry Daina that I could`t answer youre e-mail right away. I hope we can work together on another assignment :-)
Q 1:
I think this
question is extremely hard to answer Mr. Balas. I believe that there is no
right or wrong answer. I cannot think of any peace proses or judicial proses
with a “happy ending”. Of course there is some kind of relief when dictators
and perpetrators are brought to trial. But that will never bring justice to the
people that have suffered under these dictatorships. The word “justice” in this
context is inadequate. I think the question “what should be the goal of a 3 rd
party intervention in a conflict: peace or justice”? depends on the level of the conflict. If there
are massive killings, torture and rape against civilians the goal should be
peace. The goal should be to stop the violence, which is essential for the
peace process but also an essential part of the general sense of justice. Although
I am a lawyer I don’t believe that the legal system in itself can bring
justice.
The understanding
of the word “justice” is subjective. I think everyone has to a certain extent a
mutual understanding of the concept “justice”. But still people will define the
word differently based on different factors as living conditions, level of
knowledge and life experience. For some people justice is the absence of
torture, for others justice is the right to education, food and housing. In our
part of the world some believe that justice is the right for everyone to choose
to do your homework or not. Still, the international society agrees that the
right to a fair trial, the right to vote and the prohibition against torture
are human rights which are fundamental in the process of achieving justice. I have a hard time believing that human rights
activists can prolong violence in a conflict, just by trying to bring human rights
perpetrators to justice. On the other hand, I can see that human rights
perpetrators can be provoked by the activists and what they symbolize, and that
this will encourage the perpetrators to continue the violence.
Based on what I
have written above my conclusion is that the goal of the third party intervener
depends on the level of the conflict. If there is war, the main goal should be to
establish a dialogue between the parties to the conflict, both perpetrators and
others, to understand the parties’ interests. I don’t see that it could harm
the process to call attention to the rules of international humanitarian law
and human rights law. Maybe it’s wise not to “point finger” but behave
independent and neutral, but still point out the rules of law. In war time it’s
important to protect the civilians by negotiating with the stakeholders and at
the same time explain the rules of international humanitarian law. If it is possibly
to end the violence by giving perpetrators amnesty, well, give them amnesty. Amnesty may not be perceived as justice. But
if I have to choose between justice and bringing an end to the violence, I’m
not in doubt. I would choose to end the violence.
Q 2:
Yes I have
experienced tension between human rights activists and ADR. I am myself a human
rights activist, and have several times “put an end” to a dialog between
different stakeholders because I have mentioned human rights violations and
issues concerning the human rights situation in the current field. After these meetings I have reflected on my own
behavior and asked myself if I should have behaved differently. The strange
thing is that my conclusions of my own reflection, is that I shouldn’t behaved
differently. Why? Well, because my role at these meetings is to function as a
human rights activist not as a diplomat or a mediator. My duty is to point out
the human rights violations, to talk about the things that the other parties don’t
want to hear about. This is important because a lot of the vulnerable people that
I work with, they trust me, and when I go to these meetings a represent them. But, if I go to a meeting as a mediator I leave
my “human rights activist hat back at the office”, and put on my mediator hat. I think this is crucial for a third party intervener,
to be open about his or her intensions and only use one hat at the time and not
mix roles. If you’re intensions are not
clear for the other stakeholders they will have a hard time trusting you. If
the others don’t trust you, it will be hard to achieve a fruitful dialogue.
From: Umut Zholdoshalieva & Lucia Gómez
Hi everyone, below are our answers.
What should be the goal of a 3rd party intervention (HR/ADR practitioners) in a conflict: peace or justice? We find it difficult to choose one as both are complements to each other, taking into account that the process of peace require the application of the law and the access to justice, We would say that the 3rd party intervention would be peace with justice. (peace, justice, and reconciliation). However, is the society in transition from war to peace both of the sides must decide for themselves the relative order for addressing these interventions.
According to the readings for a Human Rights defender the 3rd party intervention should be justice, for conflict resolutions practitioner is peace. However, it seems that peace is the first step followed by the inclusion of HR law in the process of its achievement. In case rights abuses are not addresses in the context of resolution of the current conflict, they can set the stage for future conflicts because unredresses past grievances are so easy to manipulate.
Achieving justice for past wrongs and bringing about the reconciliation of previously warring groups are needs that any post conflict society that seeks a peaceful, right’s-respecting future must address. But the future necessarily includes the full range of post settlement societal needs such as political stabilization, economic development, institution building, physical reconstruction, education, and health care, as well as truth, justice, and reconciliation.
Why? The approaches and methods of the two groups (HR /ADR practitioners) use when tensions are at their highest, are not always well suited to a post conflict milieu characterized by political insecurity, a dearth of institutions able to maintain order, and massive resettlement or reconstruction needs.
- Enforcement approaches to HR are ill suited to the early stages of peace implementation, during which enforcement mechanisms are non-existent. Facilitated dialogue is not sufficient in and of itself to promote coexistence, let alone reconciliation.
- Coexistence interventions are necessarily long –term processes that involve changing parties perceptions an attitudes.
- Intervenors must be prepared to devote a lot of time to training, launching, and overseeing coexistence activities, and even then, in the absence of structural changes at the societal level to ensure the safety and security of citizens, they should not be over confident that such activities will be a bulwark ( bastion, baluarte) against future violence.
For Human Rights defenders the application of HR and therefore the Law and justice is good to resolving a conflict because it contribute to the long terms stability of a conflict settlement. The effective protection of HR is linked with justice. HR advocates achieving justice through the prosecution and punishment of those responsible is a priority.
It also contributes to identifying the “root causes of the conflict an potential means for addressing them”, HR standards help providing indicators for when a state has failed to address the reasonable concerns of a group of citizens. It also contribute to resolve conflict in the short term, by protecting bridge builders. HR activists usually tend to be among the extremists that can block the efforts of moderates on their sides. HR proved a neutral standpoint that can help resolve disputes between parties in conflict.
For Conflict resolves they focus their attention on promoting dialogue and reconciliation among previously warring parties.
How stable is peace without justice?. Nothing, the lack of justice is what really undermines peace and stability. Justice and peace are linked. A stable peace is one where the idea of war hardly enters into consciousness, having considered their conceptions of justice. However, in most of the world where neither peace nor justice is stable, the relationship itself is the subject to politics. The choice of pursuing peace or justice, however really meant by its articulate, will occur in post-conflict situations. It is clear that peace depends upon justice.
Do the attempt by human rights activist to justice before the end of the conflict prolong the violence? Yes, it can happen specially in conflicts between ethnically divided groups, where the HR reports, although written to draw attention to on-going violence and suffering, sometimes contribute to the escalation of a conflict. In this cases HR reports directed against members of a group can inflame the anger of already emotionally charged troops and their civilian supporters and an provoke those who were otherwise reluctant to take part in the violence to take up arms.
Example: In Macedonia HR reports of abuses by the Macedonian security forces inflamed emotions in the Albanian community, while reports of violations by Albanian fighters had the same effect on Macedonians. Accounts of suffering by members of one´s own group can reduce or further numb moral reflection and thus make it easier for fighters to take out their anger on, or seek revenge against , members of the other group, including those who bear no responsibility for the original suffering.
Also, when sensitive conflict resolution negotiations are contemplated or ongoing, independent human rights reports may impact conflict resolver´s ability to bring the parties together or keep them at the negotiating table. And the reports can serve to harden parties ‘positions, thereby making it more difficult for them to explore their real interests.
Where the aim of one of the parties to a conflict is to end sever or long ‘standing human rights violations such as injustice, discrimination or repression, human rights advocates are likely to sympathize with that party´s cause. In such cases, even where these advocates have reported objectively on abuses by all parties, they are likely to be perceived as biased by those in power and by those members of society who benefit from the social order that existed before the conflict or who prefer it to war. Opposition forces may interpret activist´s human rights advocacy as a form or “solidarity” with their cause. Once labelled as biased ,human rights advocates have a difficult time shedding their partisan mantle. Thus, in cases where an armed conflict was motivated initially by political or socioeconomic rights violations even though the rationale for fighting has subsequently changed to greed or depp-seated hatred and inability to trust the other side, the legitimacy of human rights advocates is often suspect.
Human rights advocates also may be accused of partiality to parties who have claims with which they sympathize. Like all non-profit organizations, human rights NGO´s must marshal their resources and set priorities for reporting to maximize the impact of their work. Massive or dramatic violations involving loss of life and intense human misery typically draw greater resources and command greater media attention then grinding socioeconomic conditions or long standing repression or discriminatory practices. Those involved in fighting what the y believe to be a “just war” to end theses latter types of abuses may feel that human rights advocates are biased or hypocritical because they failed to adequately publicize the underlying abuses that occurred before a resort to arms was perceived to be necessary.
Should HR perpetrators be accepted to the peace process negotiation table? Every time conflict resolvers intervene to assist the parties in negotiating an end to armed conflict they encounter the problem or how to deal with those individuals who are responsible for violations of human rights or the laws or war. Both international human rights and humanitarian law impose a duty on states to prosecute those who have committed the most egregious human rights violations, war crimes and crimes against humanity, therefore, if we follow the International HR law they shouldn´t be taken in the peace process. However, sometimes for some necessary parties to peace processes, the potential for criminal prosecution has been a barrier to serious participation in negotiations.
This is an issue that creates tension and has raised issues of culpability for past violations. Resolving conflicts involves in most cease getting parties who have fought each other violently to agree to engage with each other in a non-violent and political manner. Those parties who have resorted to violence are also typically those who have seriously violated human rights. It is rare for political actors who are engage in negotiations to end war no to have been directly or indirectly involve in serious violations of HR. Peace processes seek to engage these actors and move them towards the political mainstream. It would be difficult, if not impossible, to do so if such actors were told that their willingness to move from violent politics to non-violent politics would lead, not just to their political irrelevance, but to prison. Most facilitators thus find themselves in the position of having to make excuses for, if not politically to forgive, the perpetrators of human rights violations in order to maintain peace processes. This is true, in particular, prior to the disarmament of armed groups or militaries in peace processes.
Conflict management practitioners generally prioritise peace as a basis for justice, arguing that the cessation of violence and resolution of intra-state conflict is a precondition for the establishment of a viable and enduring system of justice. They usually accept that this may necessitate negotiating with parties responsible for atrocities. Human rights actors, however, focus more directly on justice as the foundation for a lasting peace. Their primary concerns are with holding perpetrators accountable, restoring the rule of law, and building democratic institutions. While many conflict resolution practitioners share these concerns, the two fields often differ on the relative priority and importance attached to the various imperatives. As Baker puts it, “[they] share a common concern to end conflict, but favour different strategies in achieving it”
- Ø Conflict management practitioners aim to make the negotiation process as inclusive as possible in order not to alienate any party that has the potential to derail the process, irrespective of that party’s human rights record. Experience indicates that any peace process that does not include all stakeholders is less likely to hold firm.
- Ø Human rights actors, on the other hand, generally wish to exclude perpetrators from such processes, because their inclusion may grant them undue legitimacy and political influence in the post-conflict situation
Should they be offered amnesty?Demands for amnesty are a frequent subject in peace negotiations. HR advocates and conflict resolvers often are divided on how to respond to such demands, especially when those seeking amnesty are seated in the negotiating table.
Sometimes it is necessary to grant absolute and free pardon and amnesty to HR perpetrators to achieve peace process.
It is important to mention that UN holds the understanding that the amnesty and pardon shall not apply to international crimes or genocide, crimes against humanity, war crimes and other serious violations of international law.
Q2: Umut Zholdoshalieva
2.1 Have you experienced the tensions between the HR and ADR practitioners that are mentioned by the readings?
2.2 Could you share some examples?
2.3 Regardless if you have or have not experienced these differences between the HR and ADR fields in your work, think of some solutions, maybe some that you’ve already implemented, to overcome these tensions mentioned in the literature. How could these gaps between the two fields be bridged? According to Michelle Parlevleit, the both sides should collaborate in order to successfully implement peace process. We think that the collaboration should start with a dialogue between HR actors and Conflict resolvers which will help them to solve which approaches to use in what stage.
Feel free to share your thought if you think that there are other major tensions between the HR and ADR practitioners that you observed in your work. In the case of the interethnic conflict between Kyrgyz and Uzbek groups in the southern part of Kyrgyzstan, the main problem arose between government and human rights actors. The state government ignored the Human Watch report, as they decided that report was not neutral, but one sided. Only several people were accused and imprisoned for manipulation to evoke the conflict. At the moment people live with distrust with each other and tension among the civil society can lead to new re-escalation the conflict. From this, we can conclude that if justice was not reached through human rights law it means that just temporary not stable.
Q2: Lucia Gómez
2.1. Have you experienced the tensions between the HR and ADR practitioners that are mentioned by the readings
I have not experience it myself but the Organization where I work has gone through tensions with ADR practitioners. I work for Amnesty International Spain.
2.2 Could you share some examples?
I have worked defending HR for child soldiers calling attention to the problem and encouraging International Community to contribute to its solution.
What I have seen is the intention of a restorative justice approach programs more offender-centered than victim-centered. I am a bite sceptical about the efficacy of these programs on child soldiers, as I believe in the implementation of prevention policies should be first target, rather than be in the situation of having to apply disarmament, demobilisation and reintegration (DDR) initiatives programs to children when released from fighting (which are also needed).
What we are trying to do as HR defender is to promote the adoption and implementation of international legal standards protecting children from military recruitment or use in hostilities by implementing the main international and regional law.
2.3 Regardless if you have or have not experienced these differences between the HR and ADR fields in your work, think of some solutions, maybe some that you’ve already implemented, to overcome these tensions mentioned in the literature. How could these gaps between the two fields be bridged?
I think the best is to make a team where HR advocates and conflict mediators can work together assuming both the part of the work they are specialist. Mediators should have a broad understanding of the HR, and therefore they need HR advice to ensure accountability for war crimes, crimes against humanity and right violations. It is also important to recognise the important of the UN human Rights mechanisms, and impulse conflict mediators to incorporate them in mediation process and any implementation mechanism created to achieve peace agreement.
Q1: What should be the goal of a 3rd party intervention (human rights and / or ADR practitioners) in a conflict: peace or justice? Why? How stable is peace without justice? Do the attempts by human rights activists to bring human rights perpetrators to justice before the end of the conflict, prolong the violence? Should human rights perpetrators be accepted to the peace process negotiation table? Should they be offered amnesty?
We think that the first action a practitioner should point to is to look for peace between the parties, through peace the intervention could guide to a series of settlement of agreements that could take to justice, but if the intervention is aimed to establish justice in the middle of the conflict, so it would be a classic formal meditative process. So, peace should be the main goal, after that, parties should establish mechanisms to promote and guarantee justice among the people involve to the conflict.
Justice shouldn´t be the first action of any interventions, but peace through dialog human rights and justice should be put on the table, including bringing perpetrators into justice, but it has to be once conflict has stabilize, before that dialog hasn´t been built, and any action could make things worse.
Bringing perpetrators to the dialog table can be an important and very good process depending on the situation. In order to make peace and a durable peace, everyone involved in the HR conflict should seat in the table or be represented to agree for a peace. Offering amnesty to perpetrators can be a key point for a possible negotiation or can facilitate the ceasefire or stop the human right violation, even if the amnesty is national only or partial or International depending on the sitatution. As we agreed, giving amnesty is a case by case solution.
Q2: Have you experienced the tensions between the HR and ADR practitioners that are mentioned by the readings? Could you share some examples? Regardless if you have or have not experienced these differences between the HR and ADR fields in your work, think of some solutions, maybe some that you’ve already implemented, to overcome these tensions mentioned in the literature. How could these gaps between the two fields be bridged? Feel free to share your thought if you think that there are other major tensions between the HR and ADR practitioners that you observed in your work.
As Ellen Lutz points out, in cases where armed conflicts are motivated by political or socioeconomic rights violations, the legitimacy of human rights are often put on suspect, and that makes that some people focus on looking for peace while others claim human rights to be redeem (p.31, Understanding Human Rights Violations in Armed Conflicts).
For example, in territories declared indigenous reserves, and where non indigenous people live, happens very often that some support the idea of the indigenous administration of whole the lands, while others think that before that, some agreements should be reach before taking out of the lands all non indigenous people, this because even with the defense of lands rights, conflicts between indigenous and non indigenous that will continue being from the same area, are not being results.
In another example, we can talk about the settlement agreement between the government of Canada and the Autochthones peoples. Indians people was forced and taken from their family and brought to the Residential school, in which lots of abuse was perpetrated, after the government present their apologies, they negotiate and build a procedure named (IAP), Independent assessment process, out of justice process, ADR process to compensate all those persons who was abused in those residential, and Truth and reconciliation commission to talk about the true in order to let it go and build a peaceful community.
Finally, in order to pay attention to human rights and to the resolutions of conflicts, it´s necessary to bring all people involved to a dialog table, because through dialog both parties could ear real pretentions of the other party, and eventually comprehend that both are looking for the same. In all cases, the role of the HR and ADR practitioners, is do everything’s possible to have a peace and get justice, conditions without, any community or country, even the world won’t develop.
Izcar & Barham
Date:August 12, 2014
To:Alex Balas and Course Participants
Subject:Lauren Elizabeth Jones and Jack Huan Pham collaborated on Assignment 2:Question 1 and Question 2
Question 1
a: What should be the goal of a 3rd party intervention (human rights and / or ADR practitioners) in a conflict: peace or justice? Why?
The goal of a third party intervention should be to achieve peace. Once tension rises and a full conflict is developed, peace must be the primary focus. That is, justice can only be achieved once peace has been established. In terms of a long run/short run analysis, in the short run, aguably, peace is required to maintain temporary stability. Stability is the basis for justice to thrive and operate. Advocating for justice in chaos risks inducing further chaos. Conversely, in the long run, once short term peace (stability) is achieved, justice then must become the primary goal. In the long run justice maintains peace.
Ultimately, the goal would be to lessen harm and repair relationships. This can be achieved through restorative approaches (the principle of dialogue, the relational principle). Restorative justice could bring about the long term goals of peace and justice at the same time. Coercion or persuasion may not be necessary because parties would have had an opportunity to understand the many points of view in the conflict, they get answers, they build insights, they appreciate misunderstandings and may even grow to have compassion for the other, all of which brings about justice for the parties and allows them to heal, move forward and ultimately live in peace.
b: How stable is peace without justice?
Long term peace is not sustainable without justice. Justice provides accountability for peace to endure. However, peace in the short term does not necessarily require justice, therefore peace can be quite stable without the intervention of justice. Moreover, it is conceivable that imposing justice at certain stages in the conflict cycle may only risk further harm. It is worthwhile to note that short term peace is only achieved because there is a promise of justice. For these reasons, justice and peace are ineluctably interdependent. That is, the stability of one is the stability of the other.
c: Do the attempts by human rights activists to bring human rights perpetrators to justice before the end of the conflict, prolong the violence?
Yes. At certain stages within the cycle of a conflict, bringing perpretrators to justice would only cause further harm. Forcing justice may prove to be premature and it risks escalating the conflict. Not only is prolonged violence an inevitable outcome, but new sub-conflicts may develop.It may be relevant to note that human rights conflicts are cyclical in nature. Human rights perpetrators feel harmed and react by harming others in order to acquire justice themselves, thereby causing injustice for the new victim.
In reality it is imperative to proactively address the underlying root causes of a conflict instead of ‘bringing perpetrators to justice’ which often just means putting violators in jail. Justice does not always mean justice for victims. Perpetrators themselves may also be victims and they too seek justice.
A different approach from the status quo is needed. An approach that allows for an understanding that all people in a conflict are victims who are seeking justice would begin to prevent or lessen the violence. An approach that allows a free exchange of points of view and compassion would allow for a restorative dialogue to develop.
d: Should human rights perpetrators be accepted to the peace process negotiation table? Should they be offered amnesty?
Yes. All stake holders in a conflict should be involved in the peace process. Moreover, the goal of HR and ADR practitioners should be to achieve sustainable long term peace. Perpetrators are stake holders themselves. That is to say, perpetrators have a relevant interest in the success of future peace.
Alternatively, consider not involving human rights perpetartors in the peace process. what would happen then. There are many current examples that suggest human rights perpetrators feel ignored and violence will continue or escalate. Amnesty is a useful. It is a possible tool to help create a sustainable dialogue. Perhaps even a restorative dialogue. It is this sustainable dialogue that gives rise to peace. Amnesty further provides a forward look lens to address a conflict by offering forgiveness and the gesturing of good faith.
In situations where the perpetrators could also be seen as victims, they should be offered amnesty. Especially if it prevents further violence.
Question 2
a: Have you experienced the tensions between the HR and ADR practitioners that are mentioned by the readings? Could you share some examples?
Tension between the two are common. It originates from the misconception that it is impossible for the two practictioners to share a space. not much different from Nation-State conflicts. Human rights practitioners advocates. ADR practitioners mediate/ facilitate dialogues. One coerces they other persuades.
Tension bewteen the two practitioners also arise because they apply different lens to the conflict. The human rights practitioner lens adjusts to positive and natural laws, the customs, and the desire for fundamental human needs to be respected. The ADR practitioner lens adjusts accordingly to preserve the conversation, the dialogue, and the outcome.
b: Regardless if you have or have not experienced these differences between the HR and ADR fields in your work, think of some solutions, maybe some that you’ve already implemented, to overcome these tensions mentioned in the literature.
Using restorative, transformative or truth and reconciliation approaches are possible solutions.
Before elaborating further it is worthwhile to outline the basic tenets embedded in restorative principles. According to academics, restorative principles include:
1. human beings are inherently relational
2. dialogue over punishment
3. include all those involved
4. be prepared to look forward
5. conflict/dispute must consider the story of those involved at a holistic level
6. approach to conflicts must be flexible and democratic in nature
These approaches are based on principles that are inherent in what it means to be a human being. The purpose of these approaches is to prevent violence and bring a sense of justice without continuing the cycle of harm and violence.
These approaches allow for an understanding of perspectives and opportunities for compassion to grow. It also allows for the inclusion of all stake holders in a peace process. Without a fair opportunity to understanding the issues and perspectives there will always be a risk for continued instability and escalating conflict.
Restorative approaches does not apply coercive or persuasive techniques because to do so would mean that any resolution would lack sincerity. A potential party must want to and be prepared to repair harms. A potential party must voluntarily be involved in the peace process for a resolution, and ultimately peace, to be sustainable/stable. A resolution by coercion or persuasion is a recipe for short term peace and long term instability.
Restorative approaches focus on relationships. Human beings are inherentlty relational. Although in the midst of a conflict this approach may seem ineffective. It may even seem too soft to be taken seriously. However, coercion and persuasion is no more than a band-aid on a deep gash. The effect would be temporary and the deep gash would become infected. When we portray human rights activists as only wanting punishment, we are suggesting that human rights activists would value certain lives over others, in other words valuing the victims' life and not the perpetrator (who incidentally may also be a victim).
It is from this basic principle that all people have value and rights that human rights activists and ADR professionals should start to work from, together. We need to ask what happened, why, and how everyone was impacted to see that everyone has a perspective and more likely than not, there are misunderstandings and misconceptions that fuel the instability and injustice. The reasons, insights, perceptions and interpretations that come out of the dialogue may shed light on the misunderstandings and build feelings of compassion, which in turn often brings forth healing and feelings of justice for the individuals. This method can also bring about peace and justice in a way that lessens harm in the future for the larger group as a whole.
By Dyanne Marenco and David Bijl.
Q1: What should be the goal of a 3rd party intervention (human rights and / or ADR practitioners) in a conflict: peace or justice? Why? How stable is peace without justice? Do the attempts by human rights activists to bring human rights perpetrators to justice before the end of the conflict, prolong the violence? Should human rights perpetrators be accepted to the peace process negotiation table? Should they be offered amnesty?
Intervention in a conflict, from whichever party, should always have both peace and justice as an ultimate objective. In low-intensity conflicts these goals could be reached simultaneously. For example where Dyanne works, mediation is being used to bring both parties closer together, establishing justice in a way that both parties can agree with, which then automatically leads to peace.
In high-intensity conflicts short term objectives are often more important, since every extra day of conflict can cost human lives. This situation makes the balance between peace and justice a lot more complicated. When (negative) peace is established but the human rights perpetrators stay in power, they will probably prevent justice for human rights violations committed during the conflict. In another scenario the absence of justice could be part of the negotiations for peace, when the perpetrators use amnesty as a demand for stopping the violence. The other way around justice could lead to a new conflict, when the leaders of a certain group are being prosecuted and other group members respond by retaliating against the their (former) enemies.
These complications make justice and positive peace a lot harder to achieve then (temporally) negative peace. Additionally, negative peace makes for much better conditions to negotiate positive peace and justice, because ongoing violence and human rights violations will most probably drive the negotiating parties further apart, thus complicating or ending the peace negotiations. Consequently we think that the first goal in these kinds of conflicts should always be negative peace or a ceasefire, after which true peace could be established.
Of course in the process of negotiating a ceasefire the eventual goal of positive peace should always be considered, which means that amnesty cannot be a condition at this stage of the negotiations.
The stability of peace without justice also depends on the intensity of the conflict and the scars it has left in a community. In low-intensity conflict an outcome that doesn't actually bring on of the parties to justice can still be satisfying if the underlying dispute is resolved. If a society is deeply traumatised by human rights violations, leaving these unpunished is more likely to spark future violence. Of course this should be taken into account as well when deciding whether or not to grant amnesty to human rights perpetrators, as should the prospect of the perpetrators signing a peace treaty without amnesty. A balance should be found here between finding peace and healing the wounds in society to make it durable. Financial reparation could in some cases be used as an alternative for the prosecution of perpetrators.
Again, taking a look at the techniques used in Costa Rica we see that efforts by human rights practitioners during the conflict are part of the conflict resolution process, when the government uses mediation and peace circles in a court of law. In high-intensity conflicts, we think that attempts to bring perpetrators to justice can have a positive effect as well, as long as these attempts aren't made by institutions directly involved in the peace negotiations. In Israel for example, efforts to publicly shame the Israeli government and bring them to justice have become an incentive for them to negotiate peace. From a military perspective they don't really need peace, from a PR perspective they do.
The same example of the Gaza War makes it clear why human rights perpetrators should be present at the negotiation table. In a conflict (partially) caused by human rights violations, at least one of the conflict parties is a perpetrator. Negotiating peace in the absence of one of the conflict parties is not possible: you can't come to an agreement with someone that isn't there.
Q2: Have you experienced the tensions between the HR and ADR practitioners that are mentioned by the readings? Could you share some examples? Regardless if you have or have not experienced these differences between the HR and ADR fields in your work, think of some solutions, maybe some that you’ve already implemented, to overcome these tensions mentioned in the literature. How could these gaps between the two fields be bridged? Feel free to share your thought if you think that there are other major tensions between the HR and ADR practitioners that you observed in your work.
Both Dyanne and David don't have any hands on experience in high-intensity conflicts. This is probably the reason why we haven't experienced the tensions between HR practitioners and ADR practitioners either.
We dot think however that HR and ADR can be highly complementary. The problem seems to be that neither party realises this. We think that talks between both HR and ADR practitioners at the beginning of the peace process are essential to set common goals and determine the desired actions of each party in different phases of the process. Depending on the nature of the conflict the best course of action could be to closely cooperate in every stage of the conflict resolution process (low-intensity conflict) or to just to have joint coordination for the separate processes, making them complementary instead of obstructive to one another.
Q1: The goal of third party intervention in a conflict, when from human rights and ADR perspectives should be to restore peace and justice. This is because both are two sides of the same coin. Peace without justice is unthinkable, for peace is not merely absence of war. Stable Peace can only flourish in an enabling and just environment. While it is good to ensure that perpetrators of injustice are held accountable for their acts before the end of conflict, strict insistence might lead to the intensification of the conflict. Since dispute resolution involves settling warring parties, it is necessary and normal that even human rights violators be included in the conflict resolution process. In certain circumstance granting them amnesty might be helpful yet it has proven problematic in many other situations.
Q2: Though without a firsthand experience, the claim made by the author, Michelle Parlevliet namely the “peace versus justice” tension created by human rights and ADR in conflict resolution is very worrisome. There should be no “peace versus justice” at anytime in conflict resolution. The task is for both advocates to appreciate the interconnectedness of their different positions and seek a healthy integration of their concerns. It is important to appreciate that realizing this integration can be challenge. Communication and facts sharing at every stage of the process among the two practitioners would be valuable in this regard.
Analysis by Yahye, Valeria, and Bertrand
Discussion participants: Soontae Choi, Mohamed Dek, Ashley Ross
Group Response written by Ashley Ross
Q1.
There is no one size fits all answer about how 3rd parties should balance peace and justice. The relationship between peace and justice is different in each situation, and both peace and justice are processes that take time. A 3rd party intervention should seek both the necessary commitment for both an immediate and long-term peace, with the flexibility to allow for justice-seeking processes to address human rights violations.
Justice contributes to a more stable and long-lasting peace, but not necessarily with direct correlation. For example, we’ve seen peace progress in some cases even where key perpetrators were provided amnesty. Instead of punitive justice through prosecutions, a variety of restorative transitional justice mechanisms were pursued – truth seeking commissions, memorialization activities, reparations, etc. These broader perspectives of transitional justice suggest that although amnesties, or qualified amnesties, may detract from accountability for human rights violations, they do not mean justice is completely unaddressed. It may be possible to achieve a stable peace in some cases even without achieving punitive forms of justice. If human rights activists maintain a narrow perspective of what justice means, they could prolong the conflict (similar to any party unwilling to come with an open mind).
In regards to whether human rights perpetrations should be accepted to the negotiation table, although there are circumstances where their presence may be disruptive, drawing red lines about who and who cannot be seated at a table is a slippery slope. Who are the perpetrators and what is their role? A 3rd party should not advocate for excluding individuals from the negotiation table initially, but have parties mutually agree upon who should be allowed at the table for the primary negotiations. Likely both parties have positions on who should be and not be at the table.
Amnesty does not have to mean a blanket pardon for crimes. Arguably, amnesty has been too quickly utilized as a tool within conflict resolution agreements, overemphasizing the importance of short-term stability. Saying amnesty should be a sometimes offered can lead to its overuse, but I think there are times when amnesty can be utilized in conjunction with other justice-seeking mechanisms so that justice isn’t completely sacrificed in the name of peace.
Q2.
Tensions between HR and ADR seem to most frequently surround rigid understandings of human rights and justice. Maintaining fixed understandings of rights and justice can be a technique for avoiding engaging in conflict resolution. I’m less familiar with HR or ADR practitioners applying this rigid understandings but have parties of a conflict propagate this kind of inflexibility
The case of the Tawergha community in Libya today serves one example of when surface demands for rights and justice by both sides are used to prolong the conflict. The town of Tawergha is just outside the city of Misrata. During the revolution against Gaddafi, Tawerghans allegedly fought behalf of Gaddafi and committed mass atrocities in Misrata. Mass rape is one of the most significant allegations. Misrata militias moved into Tawergha, displacing the entire community with significant violence and vandalism. Over three years later, Tawergha remains a ghost town and Tawerghans are living as internally displaced persons in a handful of camps in Tripoli and the East. Misratan leaders say they will never allow Tawerghans to return. Tawergha leaders have offered any individuals to stand trial in order for the community to be able to return.
In this example, practitioners who identify with any field (HR or ADR) are supportive of negotiations and I doubt there would be a significant difference in approach. Claims of rights and justice are used as rhetoric for avoiding engaging in resolution. Maybe were negotiations to take place, HR and ADR practitioners might have different perspectives on what a just and durable solution looks like.
Mohammed shared how land ownership is a justice challenge in Somaliland. A similar challenge exists in Libya. In 1978, Gaddafi issued a law which declared Libyans could only own the house they lived in. All other property would go to the state. There are now families who have been living in homes for thirty years that were the property of someone else. Simply returning the land to the original owner is not easy or always the most just solution. Protecting and seeking remedy for human rights violations does not present easy answers- there aren’t clear cut solutions. I think it is when we assume there is a simple rights-based answer that we come into conflict between rights and ADR principles.
Lianne Chang and I were able to overcome the time differences and UN imposed internet restrictions by speaking via telephone. Below please find our responses.
Q1 : What should be the goal of a 3rd party intervention (human rights and / or ADR practitioners) in a conflict: peace or justice? Why? How stable is peace without justice? Do the attempts by human rights activists to bring human rights perpetrators to justice before the end of the conflict, prolong the violence? Should human rights perpetrators be accepted to the peace process negotiation table? Should they be offered amnesty?
The goal of 3rd party intervention should be both peace and justice. While striving for both may at times lengthen hostilities, absence of justice often leads to a continued state of insecurity/fragility as long as issues related to accountability are left unresolved. Whether the goal is peace or justice depends on who the interveners are; if they are mediators, then the goal will be peace, and if they are human rights colleagues, then it will be justice. The two do not have to be mutually exclusive justice may follow peace.
It is possible to impose a so-called negative peace if sufficient internal and/or external forces are brought to bear. The question always remains as to what happens when such forces are withdrawn, and if no concrete measures are taken during the interim period to redress the ills at the root of the conflict, then the possibility always remains that human rights violations perpetrated on victims may subsequently lead to new and renewed conflict.
Justice should follow peace.
The question of who gets a seat at the table is always a contentious issue. In reality, the question is often answered by who is convening the table. I believe that external conveners are often more likely to exclude human rights perpetrators and other so-called spoilers. A more local driven approach may be more inclusive with all the key actors significantly involved in the conflict; at that stage they become stakeholders with much to lose and excluding them from dialogue may be another recipe for renewed conflict. While they may in fact be the initial cause of the conflict, to exclude them may lead to even more intense violations and reprisals. This also raises the question of who has to live in the environment once the conflict is ‘settled’.
I agree that at the end of the day Justice must prevail, perhaps peace must be established first so that negotiations can be settled and then justice will prevail. It might be that if human rights issues are the first thing on the agenda, peace will be harder to establish.
I think there is not one consistent answer to this question and so amnesty should be considered on a case-by-case basis.
Q2: Have you experienced the tensions between the HR and ADR practitioners that are mentioned by the readings? Could you share some examples? How could these gaps between the two fields be bridged?
Tensions sometimes play out in the context of a peacekeeping mission whereby the mission political leaders and key sections most actively involved in resolving conflicts at the community and national level feel the need to exercise flexibility in their approach to dealing with spoilers and others who directly or indirectly committed atrocities because the spoilers’ involvement is essential for any peace agreement to materialize and take hold. The human rights colleagues are often more stringent in their approach in assuring that international human rights norms and standards are fully implemented in a fair and impartial manner, regardless of the perpetrator’s position or status. They may be more prone to disregard the spoilers.
Continuous dialogue between the human rights and conflict resolution actors is key to ensure a shared understanding exists (even if not agreement on the way forward) in precisely how each interventionist views the situation and the sequencing of potential activities and/or responses. The two must work collaboratively to complement each other. As suggested the mediator is the one whose role it is to get the parties to the table. That is important. If the spoilers do not think that they have anything to gain by coming to the table then they will not. The mediator – with the understanding laid out by the human rights officer – will know what to say to get all parties to the table. Their methods may be different, but ultimately the goals are the same – stop the conflict and stop the human rights violations.
They are not incompatible: national versus international amnesty. The international community has clear prohibitions against amnesty for gross violations of human rights, torture and war crimes. These are important standards and norms which must exist and be adhered to. On the other hand, it is often left to the local society/community/nation to ‘pick up the pieces’ and attempt to rebuild the fabric of the society and instill a sense of reconciliation and normalcy. Often, resort to national amnesty is the only way to move a society forward at a given point in time. While remaining an contentious issue, it is not unheard of where a country which initially granted national amnesties revisited this decision at a later date.
Response from Shaun Kirven and Andre Kahlmeyer:
Q1:
We find that promoting both peace and justice are important elements in peacebuilding and both have equal right to be promoted. Being asked to decide which one should be the priority or come first is a very challenging question. Ultimately, it can probably only be decided as the outcome of political processes that happen within the complex systems of donors, the UN and other global peace, security and justice actors. It requires a judgment call. In reality, however, it seems that the approaches to peacebuilding of international organisations, bilateral donors and foreign offices and other actors are regularly blurred and do not clearly answer this question whether they want to promote peace or justice. Usually, donors, foreign ministries, UN agencies etc. declare that they want to promote peace and a “good system”, e.g. a “democratic system” in Afghanistan since 2002. The EU through its crisis missions (Iraq, Afghanistan, Horn of Africa, Mali…) regularly wants to promote both stability and human rights. Similarly, the UK uses the concept of “stabilization” for its foreign policy and defines it in the following way:
"Stabilisation is the process of establishing early peace and security in countries affected by conflict and instability. Central to the stabilisation process is the promotion of a peaceful political settlement to support a legitimate indigenous government, which can better respond to its people. Stabilisation often requires external support to indigenous efforts and is best undertaken through an integrated approach."
According to this definition, peace requires a political settlement and a legitimate indigenous government. However, it doesn’t specify what should come first in case one has to decide.
An important distinction to address the question is also how much human rights violations are conflict drivers and were among the main triggers for a conflict in the first place. For example in the case of Syria, the Syrian system systematically denied basic human rights to its population on a large scale before 2011. The unhappiness with the unjust system was already very high before the recent civil war and it was certainly one of the major trigger points for the escalation in 2011. Promoting now any kind of stability (“negative peace”) and leaving the current Assad regime in place that is responsible for the killings of 100.000s Syrians will most likely not be acceptable to most people and will not lead to a stable and lasting settlement and end of hostilities. An "amnesty" would not be an acceptable idea either.
An alternative, as practiced for example in Iraq and Afghanistan in the 2000s, could be to militarily remove a government/system and rebuild a better system from scratch. However, this raises the question of what a better and more legitimate system is in the local perceptions and what donors and international agencies are willing and able to support. The two last attempts have not been very successful in this regard.
Q2:
As stated by the authors any attempt at addressing the question of tensions between the different practices needs to look at the specifics of each context. The “culpability” of human rights has more to do with political/ economic agendas of disenfranchisement and illiteracy than problems with law. Victims largely unaware of International human rights law will frame the wrongs done to them and the remedies they seek in terms of basic needs. These needs are often negotiated and often in favour of the power holders.
In many of the cases of enforced disappearance in Nepal that were carried out against the Tharu population in the west of the country between 2002-2004, the relatives of those disappeared where driven to look for their loved ones due to economic hardship. Access to the labour market is limited for many women who lost their husbands during this period and finding your main bread-winner became a question of economic survival for many. Widows likewise have very little social standing running the risk of losing what property they own to either adult sons or male relatives. The government aware of the social and economic status of many of the relatives in order to reduce the numbers of enforced disappearances began offering relief to the families of those “killed” during the conflict. Death Certificates and economic compensation were offered to those willing to pronounce their disappeared relatives dead. Were the human rights community wrong to respond by educating the victims of their rights to truth, justice and reparations that go beyond mere compensation?. It was that process of organizing around rights issues that lead the victims’ movement of Nepal to challenge the amnesty provisions of the recent Truth And Reconciliation Commission Act (May 2014) in the Supreme Court and win.
Nepal unlike the examples cited in the answer to Q1 followed a common pattern, Warring parties went to peace and both ended up in power. The gentlemen’s agreement between the Maoists and the Nepal Army that lead to the amnesty provisions in the law directly contravened international standards and did nothing to end the ongoing impunity for human rights violations in the country. Yet the international community has largely been silent preferring instead to keep the fragile peace process on track. Human right defenders and organized victims have been targeted by agents of both the Maoists and the Army who using arguments put forward by the peace activists accused them of being troublemakers and “anti-peace”. One high profile German diplomat actually accused the victims’ of wanting revenge rather than justice when those same victims challenged the lack of progress on the human rights provisions contained in the peace agreement.
In Mindanao the warring parties have been in negotiations for some 17 years. Negotiations themselves have become big business and life without them could actually be one of the reasons for the seeming incapacity to resolve very simple issues. With 40 years of conflict, and 17 years of negotiations a vibrant civil society would be expected, however Mindanao lacks a victims’ movement and NGOs are largely focused on peace and the monitoring of the conflict. The documentation of the violations and abuses carried out over the last 40 years has only just begun and then only in relation to those carried out during the Marcos Regime, which ended in 1986. Again compensation is being offered to those who can prove that relatives where targeted by the Marcos military offensive against dissent in the Philippines. Resistance to the inclusion of human rights in the debate is high. As a consequence the peace agreements have been allowed to develop an interpretation of human rights that far from representing the context actually serves to dilute obligations of both warring parties. As with Nepal the process where both warring parties will remain or enter into power does not bode well for any comprehensive respect of victims’ rights.
In both contexts human rights are regarded as inflexible and absolutist, a framework then that cannot bend to the complex needs of the negotiation or peace process. Simply put these are excuses used by power holders who do not wish a situation of peace to translate into any substantial loss of power.
In Aceh it became evident that the “Adat” ADR System would need to be strengthen if any form of justice was to be an outcome of the Peace Process there. The EU and UNDP spent considerable time and resources developing the system in order that it be able to provide relief to victims of the conflict in the absence of any transitional justice programme. Defining both the jurisdiction and limitations of the system in human rights terms allowed for greater buy-in from residents. Local level conflict resolution was informed by international human rights standards that the state of Indonesia had signed up to. Using local and traditional systems kept local power holders content. Applying human rights standards allowed for greater fairness in the resolution of disputes.
Globally more and more we are seeing economic sanctions being used to bring parties to a conflict to the negotiating table. Economic gain of course being the driving force behind the need to been seen as one of the “Good Guys” and ratify international human rights standards in the first place. The question is how do economic sanctions support the inclusion of human rights in micro level conflict resolution processes or is it here that offering of economic support could actually drive negotiated solutions.
Do development agencies play a strong enough role in bringing an end to violent local level horizontal conflicts? In Nepal for example UNDP built two water pipes in one village. The first for the upper-caste Brahmin residents and the second for the Dalits, the so-called lower-caste residents. Whilst the human rights practioners might have been happy with the provision of the right to water and consequently health and livelihoods the legitimization of the discrimination still caused a problem. Would UNDP have been better placed to educate the population offering one water pipe as a reward. Human rights activists should still have a problem this as a solution given that water is right though it would have helped to better address the ongoing discrimination. Would building only one water tap have forced reconciliation or would it have lead to violently enforced exclusion as in other neighboring villages?
The need for coordination across the fields of practice becomes glaring obvious. Principles of conflict sensitivity should guide development projects as humanitarian principles guide assistance. Human rights should guide negotiators and conflict resolution practitioners. Solutions to conflict that contravene human rights law should be avoided. Indigenous resolutions that do not comply with human rights standards should not supported by the international community.