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.