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ins t it u t e for int egr at ed t r a nsit ions
Rethinking Peace and Justice
Institute for Integrated Transitions (IFIT) – Law and Peace Practice Group
I. Introduction
Recent peace negotiations to end violent con- subject to greater restrictions under international
flict in Colombia, the Central African Republic, law than other legal leniency measures.
Ukraine, South Sudan, and Afghanistan indicate
that striking an appropriate balance between Flexible approaches to justice, particularly as
establishing peace and providing justice for part of negotiated transitions out of armed
serious violations continues to be a challenging conflict, have received increased recognition
issue for negotiators and mediators. On the one in international law and policy in recent years.
hand, it is increasingly understood that peace This is partly due to unease among some in the
agreements that excessively ignore or postpone global human rights community at negative con-
the demands of justice may help achieve conflict sequences arising, directly or indirectly, from the
reduction in the short-run but rarely avoid con- turn to criminal law within human rights. Given
troversy or succeed in silencing these demands the practical impossibilities of prosecuting all
in the long-run, thus creating unstable situations. or most offenders that are generally present in
On the other hand, it is recognised that an abso- the aftermath of conflict, limitations that prevent
lutist insistence on ensuring criminal accountabil- the use of alternative methods of accountability
ity severely limits the room for settlements to be may contribute to greater impunity, rather than
reached, or indeed for peace talks to emerge in greater accountability. While there are times
the first place. when criminal prosecution is the best approach
to furthering accountability, relying solely or
In the face of this challenge, states continue to excessively on criminal prosecution is risky and
take a flexible approach, using a mix of ap- unnecessary. We argue for more nuanced and
proaches that combine the implementation of creative approaches to accountability in the de-
peace agreements with justice initiatives that fur- sign and outcomes of political negotiations that
ther victims’ rights to truth, reparations, account- more accurately reflect what international law
ability, and guarantees of non-repetition. These allows or should allow.
can include selective prosecution strategies,
alternative sanctions, limited and/or conditional In doing so, we aim to offer a simultaneously
amnesties, plea agreements, pardons, use immu- aspirational and practical viewpoint: aspirational
nity, and quasi or non-judicial forms of account- in seeking to maximise peace and justice and
ability. While some may see these practices and guarantee victims’ rights; practical by incorpo-
trends as a threat to specific norms of justice rating a critical analysis of the environment in
and thus a threat to the prospect for long-term which conflict and negotiations occur. In the
peace, we argue that these are permissible under opening section, we describe how the handling
international law, are important positive devel- of peace and justice in political negotiations has
opments in practice at the local level, and point evolved in recent decades. Thereafter, we set out
the way to agreements that further both peace the contemporary international legal and policy
and justice in a sustainable way. In making this framework within which decisions on peace and
argument, we focus particularly on the use of accountability have to be made, arguing that
amnesties as they are more controversial and 1) carefully designed amnesties and other formsof leniency and flexibility can play an important complexities, and benefits of adopting a more
role in helping societies to move beyond violent balanced approach to peace and justice. Our
pasts and 2) international law allows space for ideas are informed by the diverse global expe-
significant creativity in how this can be achieved. riences of IFIT’s Law and Peace Practice Group,
We conclude by exploring how negotiation who have had direct involvement in the nego-
techniques and process design can take advan- tiation of amnesty and accountability issues in
tage of this flexibility within international law to over 20 countries. We also draw, more generally,
balance peace and justice. upon recent developments and innovations
in the fields of transitional justice, peace and
Our aim in all this is to provoke an overdue conflict resolution, international criminal law,
discussion among key actors in the mediation, international humanitarian law, and international
peace, and justice fields on the challenges, human rights law.
II. The Evolution of Peace and Justice
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in Political Negotiations
When transitional justice began taking shape as criminal prosecutions. Some adopted this posi-
a field around the end of the Cold War, its core tion as an empirical fact, while others adopted
premise was that, in times of transition, some it as an aspirational goal to pressure states to
form of reckoning with the past was necessary increase their commitment to justice, in line with
to ensure future stability. Many early transitional a hard interpretation of specific prosecution obli-
justice advocates understood democratic and gations contained in a number of treaties.
post-conflict transitions as exceptional moments
in which compromise in the pursuit of prosecu- Yet, divergences existed among the same
tions for serious violations may be required in anti-impunity proponents regarding the extent
order to help advance social stability, respect to which prosecution strategies should seek to
2 for the rule of law, and sustainable peace and ensure comprehensiveness in holding to account
democracy. This premise was based on the un- those responsible for violent offences. Some
derstanding that the prerogatives of peace and began to assert an uncompromising position
justice can conflict with each other, and that a that all perpetrators of international crimes and
preference for the former may require limiting or gross human rights violations must be prosecut-
foregoing prosecutions in favour of alternative ed, arguing that systematic criminal prosecutions
forms of accountability. Such a flexible approach are a prerequisite for durable peace. Others
to justice was largely understood as a practical focused their efforts on calling for a limited,
necessity, and was especially informed by the targeted number of prosecutions of the mili-
mix of experiences of democratic and post- tary, political, or other leaders considered ‘most
conflict transition in Latin America. responsible’ for the worst and most widespread
violations. The proponents of these divergent
This understanding changed with the emergence approaches nevertheless agreed that while other
and expansion of international or internation- transitional justice mechanisms are permissible,
alised criminal tribunals, innovations in trans- and even desirable, they should be undertaken
national criminal prosecutions, and the growing as a complement to, and not a replacement for,
assertion of the existence of an anti-impunity criminal trials.
norm by prominent international human rights
organisations and the United Nations. These Yet, amnesties did not disappear from nego-
developments contributed to a shift in dominant tiating tables even as the cause of criminal
debates in policy and scholarship from peace justice rose. Instead, amnesty and other forms
versus justice to no peace without justice, with of leniency or non-penal accountability contin-
justice understood primarily as criminal prosecu- ued to play a pivotal role in political and peace
tion. Thus, rather than argue that securing peace negotiations. This trend persists uninterrupted.
and stability might require foregoing comprehen- For example, a ‘general amnesty’ was granted in
sive criminal investigations and prosecutions, 2018 to rebel fighters in South Sudan to facili-
this emerging view argued the opposite – that tate their surrender as part of a peace process;
long-term peace and stability required robust the 2019 peace agreement to end the conflict in
IF I T / L AW A ND P E ACE P R AC T ICE GROUPthe Central African Republic provided for the cre- serious violations has yet to arrive. The evi-
ation of a truth commission that would promote dence indicates that it is unrealistic to expect
truth, justice, reparation, national reconciliation prosecutions to be carried out against all or
and pardon; and the Afghan consultative peace even most persons alleged to be responsible
assembly, in a confidence-building gesture to for international crimes or serious human rights
stimulate negotiations, recently oversaw the re- violations. Even if such robust prosecutions were
lease of hundreds of prisoners accused of atroc- possible, it is unclear that they would achieve
ities. On top of this, there are other ongoing the peace benefits that some of the defenders of
cases like the Minsk peace talks to end the con- such an approach have claimed. A more realis-
flict in eastern Ukraine, where the agenda of the tic and desirable objective is to find a way to
talks stipulates the requirement of amnesty, but reduce the natural tensions between peace and
omits any mention of victims or a ccountability. justice and to fulfil both to the greatest extent
possible, within the framework of the overall
Our review of state practice shows that am- peace process. Although seeking to balance both
nesties and other forms of leniency for crimes demands can be challenging for the legitimacy
committed in conflict are commonly offered of the process and the viability of the negotia-
on condition of war termination, disarmament, tion itself, doing so is more likely to help meet
renunciation of violence, and so on. Such the expectations and manage the interests of
amnesties and related measures are frequently victims, offenders, and other key constituencies,
implemented in peace processes that also entail thus increasing the legitimacy and sustainability
selective prosecution strategies, truth commis- of the resulting pact.
sions, and other accountability mechanisms,
albeit without being conditioned on perpetra- Ultimately, an approach to negotiations that
tors contributing directly to truth recovery and allows and supports a more creative approach
reparations. However, Colombia’s 2016 peace to justice (that incorporates, for example, more
deal with the FARC rebel group provides a recent restorative over retributive justice) is more likely
and high-profile example of a negotiated tran- to fulfil victims’ rights to an effective remedy
sitional justice system with leniency measures through truth, justice, reparations, and guaran-
conditioned on expressions of responsibility and tees of non-repetition. To equate justice solely or 3
other forms of redress for victims. In addition, excessively with criminal investigations and trials
the 2015 amnesty in Libya stated that to benefit is short-sighted as it ignores the breadth of cre-
from an amnesty, perpetrators must ‘present a ative approaches that have been adopted – and
written pledge not to commit crime again and are needed – as part of political negotiations.
to return the embezzled public funds, as well as Lastly, as explained in more detail below, inter-
reconciliation with victims of crime’. national law allows, and the pursuit of justice
and peace would be furthered by, a more nu-
All of this demonstrates that an ‘age of ac- anced understanding of the relationship between
countability’ in which systematic prosecutions amnesties and justice and of the many creative
would be pursued against those responsible for approaches available to crafting amnesties.
III. Legal and Policy Environment
Peace negotiations have long been conducted ing the United Nations, have interpreted that
in international law’s shadow. International law prohibition to include gross violations of human
has provided the outer legal, and thus often the rights – a careful and detailed analysis of the
outer political, limit to what could or should be current state of international law and policy
agreed to in the pursuit of peace. Over the last reveals a continuously flexible law and policy
thirty years, those outer limits have become environment. As discussed below, neither trea-
more detailed and exigent in their requirements, ties nor customary international law provide the
yet they still provide an enormous amount of clear prohibition some claim against some forms
room for creativity and movement with respect of amnesty and legal leniency for international
to justice. In addition, while there has been a crimes and gross violations of human rights.
strong tendency to argue that international law Similarly, while sometimes more rigid than the
prohibits amnesty in all its forms in response to law requires, relevant policy guidelines devel-
international crimes – and while some, includ- oped by regional and international organisations
R E T HINK ING P E ACE A ND JUS T ICEoften leave room for the malleable approaches whether to prosecute a specific individual. Thus,
to fulfilling state obligations with respect to states parties retain flexibility regarding, among
truth, justice, reparations, and guarantees of other things, whom to prioritise for prosecution
non-repetition that negotiation contexts intrinsi- in keeping with the rights of victims and the
cally require. capacity and priorities of the court system.
A. International Criminal Law Treaties B. Customary International Law
States have consistently declined to prohibit Where treaty rules contain gaps, the legality of
amnesty in international treaties. This was evi- amnesties or other leniency measures may be
dent, most recently, in the negotiations leading determined through customary international law,
to the Rome Statute (1998) and the International which is created by a combination of 1) state
Convention for the Protection of All Persons from practice and 2) opinio juris, meaning the subjec-
Enforced Disappearance (2006). Neither refers tive perception by a state that a particular legal
to nor prohibits amnesty. The only multilateral standard is binding upon it.
treaty that mentions amnesty remains Additional
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Protocol II to the Geneva Conventions (1977), In this regard, the categories of crimes against
which calls on states to grant, not prohibit, humanity and war crimes committed in non-in-
the broadest possible amnesty at the end of ternational armed conflicts bear special mention.
non-international armed conflicts. Although the The International Law Commission is studying a
International Committee of the Red Cross has proposed convention on the former that contains
interpreted this provision to exclude war crimes similar extradite or prosecute language as found
committed in non-international armed conflicts, in the conventions against torture and enforced
widespread use of amnesties at the end of such disappearances, but there remains no treaty
conflicts indicates that states have adopted a dedicated to the obligation of states to prevent
different interpretation of this provision. and punish crimes against humanity. Similarly,
although the Geneva Conventions require state
While no treaty prohibits amnesty or similar parties to prosecute grave breaches commit-
4 types of leniency, some find implicit authority ted in international armed conflict, war crimes
for such a prohibition in treaty provisions that committed in non-international armed conflicts
require the criminalisation, prosecution, extra- are not subject to a treaty-based prosecution
dition, or punishment of those responsible for obligation. As such, arguments that amnesties
certain crimes under international law (e.g. geno- are prohibited for crimes against humanity or for
cide, grave breaches of the Geneva Conventions, war crimes committed in non-international armed
torture, and enforced disappearances). These conflicts are necessarily based on the assertion
treaties are silent on the legality of amnesties, of the existence of state obligations to prosecute
alternative forms of accountability, and other these crimes under customary international law.
forms of leniency for treaty breaches. Howev- It is only thus that one could potentially infer
er, their explicit prosecution obligations have the impermissibility of an amnesty that encom-
been interpreted by many to mean that states passed such crimes.
parties to these treaties (or all states where the
treaty-based duty to prosecute is accepted as Some commentators circumvent these incon-
a customary norm) violate these treaties if they venient facts by relying on a more general (or
enact amnesties or other measures to prevent ‘cumulative’) obligation to prosecute interna-
prosecutions. Yet none of these treaties speci- tional crimes and gross human rights violations
fies that all perpetrators must be prosecuted or as the basis for asserting the existence of a
otherwise held accountable, and none provide custom-based prohibition on amnesties for such
precise guidance or limitations on how individ- crimes. This is coherent inasmuch as 1) states
uals are to be held to account, including how are permitted to prosecute any person they
harshly they should be sentenced and punished. deem responsible for crimes against humani-
Further, the conventions against torture and ty and war crimes in non-international armed
enforced disappearances explicitly recognise the conflicts, and 2) states may have treaty obliga-
role of national prosecuting authorities in decid- tions to prosecute torture and enforced disap-
ing whether to prosecute the relevant offences, pearances, which are constitutive elements for
knowing that many legal systems allow for the proving the commission of certain crimes against
exercise of prosecutorial discretion in deciding humanity. However, there is insufficient state
IF I T / L AW A ND P E ACE P R AC T ICE GROUPpractice to support the existence of customary violations do not constitute international crimes.
rules requiring prosecution of those responsible This argument is problematic for several reasons.
for such crimes. This uncertainty, coupled with
ongoing state practice in granting amnesties for First, there is no accepted definition of what
these offences, undermines the customary-law constitutes a ‘gross’ violation of human rights,
basis to infer the existence of a rule that amnes- and thus it is unclear which types of violations
ties and other forms of leniency are absolutely would trigger an obligation to prosecute, or
prohibited for all such crimes. whether those crimes trigger this obligation
only when they are perpetrated systematically.
This indeterminate state of customary inter- Second, most international human rights bodies
national law with respect to amnesties was recognise that states enjoy discretion (some-
recognised, among others, by the UN Special times referred to as a ‘margin of appreciation’) in
Rapporteur tasked with preparing an Interna- how they remedy human rights violations. Even
tional Convention on the Prevention and Pun- the Inter-American human rights system, which
ishment of Crimes Against Humanity. He noted has developed an extensive jurisprudence on
that the law is unsettled on whether states amnesties and other forms of leniency, offers
are prohibited from granting amnesty for these a more flexible approach than many assume –
crimes due to 1) the continued refusal of states especially in war contexts. The Inter-American
to agree to a treaty prohibition on amnesties, Court’s judgments on the amnesty laws enacted
and 2) states’ continued willingness to enact or during the transitions from military rule in the re-
endorse amnesties for international crimes and gion established a strong norm against enacting
serious violations. On this basis, in keeping with broad and unconditional amnesties for serious
the approach in the conventions against torture violations that offer nothing to victims and re-
and disappearances, he recommended that any quire nothing from perpetrators. But more recent
future treaty on crimes against humanity omit jurisprudence, engaged with more subtle and
any explicit reference to amnesty. complex amnesties and other forms of leniency,
indicates greater openness and flexibility. For
Some argue, nonetheless, that the trend of inter- example, in La Rochela Massacre v Colombia, the
national law is evolving toward 1) a more robust Court found that the combination of punishment 5
obligation to prosecute and 2) a categorical and leniency encompassed in Colombia’s 2005
prohibition against any amnesty for international Justice and Peace Law is permissible. Created
crimes and gross violations of human rights. But to encourage paramilitaries to disarm, the law
what is clear is that any such trend has not crys- provided for reduced sentences of five to eight
tallised as a new norm. Moreover, for reasons years for persons convicted of crimes against
explained later in this paper, we believe that the humanity who disclose the truth of their actions,
development of categorical obligation or prohi- contribute to reparations for victims, and commit
bition would unnecessarily and unproductively to non-recidivism.
constrain states – and thus non-state armed
actors as well – in their ability to 1) negotiate The need for flexible justice measures as part of
the prevention or resolution of armed conflicts, negotiated peace arrangements also arose in the
and 2) adopt creative and efficient prosecutorial Case of the Massacres of El Mozote and nearby
strategies at war’s end. places v El Salvador. The Court’s main judgment
found that El Salvador’s 1993 unconditional
amnesty violated the American Convention on
C. Human Rights Treaties Human Rights. However, a concurring opinion
International human rights law treaties oblige by the Court’s President and four other judges
states parties to provide victims of human rights argued that amnesties enacted as part of negoti-
violations with a remedy. This obligation can be ations to end a civil war should be distinguished
fulfilled through a variety of measures, including from amnesties enacted after dictatorship, and
civil remedies or administrative mechanisms. that in the former settings victims’ rights to
Some treaty bodies and human rights advo- truth, justice, reparations, and guarantees of
cates have interpreted this obligation to require non-repetition should be balanced with the
national investigations and prosecutions of right to peace. The concurring opinion indicates
those responsible for gross violations, such as that focusing prosecutions on those who are
breaches of the right to life, even where these responsible for the most serious violations and
R E T HINK ING P E ACE A ND JUS T ICEdealing with less serious offences through other tween the policies of the UN and EU, on the one
mechanisms, such as ‘(r)eduction of sentences, hand, and the African Union on the other. While
alternative punishments, direct reparation from the policies of the former mostly go beyond
the perpetrator to the victim, and public ac- what international law currently requires (while
knowledgment of responsibility’, might provide also recognising the need for flexibility), that of
an appropriate method of achieving this. the latter affords more latitude.
The European Court of Human Rights has adopt- For example, the United Nations Secretary Gener-
ed a more broadly permissive and flexible ap- al, in guidelines and reports in 1999 and 2004,
proach on the question of amnesty. For example, articulated that the UN would not foster or
in Tarbuk v Croatia, the European Court asserted condone any amnesty for international crimes or
that ‘even in such fundamental areas of the gross violations of human rights. Its hard posi-
protection of human rights as the right to life, tion is, however, tempered by continued recog-
the State is justified in enacting, in the context nition in UN Mediation Guidance that amnesties
of its criminal policy, any amnesty laws it might may be ‘considered – and are often encouraged’
consider necessary’. The only restriction placed for political offences, such as treason or rebel-
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on this discretion to amnesty was that the state lion, and may even be encouraged to reintegrate
ensure ‘that a balance is maintained between displaced persons and former fighters. While
the legitimate interests of the State and the these two positions are not incompatible, recon-
interests of individual members of the public’. ciling them requires flexibility and creativity.
With respect to grave human rights violations,
in Marguš v Croatia, the Grand Chamber of the The European Union’s Transitional Justice Policy
European Court recognised the ‘growing tenden- Framework expresses the EU’s commitment to
cy in international law’ (our emphasis) to see the principle that ‘there cannot be lasting peace
amnesties as unacceptable where they conflict without justice’. It endorses the UN policy to
with states’ obligations to prosecute and pun- oppose amnesties for international crimes and
ish. However, the Chamber indicated that even gross human rights violations, ‘including in the
for such violations, amnesties may be ‘possible context of peace negotiations’. However, the EU
6 where there are some particular circumstances, recognises that under international humanitari-
such as a reconciliation process and/or a form of an law, states can grant amnesty for legitimate
compensation to the victims’. The language of acts of war and that amnesties are permissible
the judgment does not require, nor does it pre- for political offences. Drawing on international
clude, amnesty being conditional on offenders’ human rights law, the EU contends that ‘where
contributing to reparations or reconciliation. amnesties are permitted under international law
they still must be consistent with human rights
As with state practice on international crimes, including the right to remedy or truth’, indicat-
we can observe that no widespread and consis- ing an openness to limited amnesties and other
tent state practice has emerged to suggest that forms of leniency that facilitate or do not under-
customary international law prohibits all forms mine the fulfilment of victims’ rights to truth and
of amnesty for serious human rights violations. reparation.
Transitioning states continue to experiment with
forms of amnesty, alternative sanctions, pardons, The African Union (AU) has adopted a more dy-
and expressions of leniency for a wide range namic position. The principles underpinning the
of violations, indicating that state practice and African Union’s Transitional Justice Policy, ad-
opinio juris have not coalesced around the clear- opted in February 2019, state that ‘In the fragile
cut prosecution obligation that some claim. post-conflict setting, a balance and compromise
must be struck between peace and reconciliation
D. International and Regional Policies on the one hand and responsibility and account-
on Transitional Justice and Conflict ability on the other.’ The AU policy eschews
the adoption of ‘a one-size-fits-all approach’ to
Mediation
transitional justice, arguing instead that choice
Some prominent multilateral organisations have of transitional justice mechanisms should be
developed policies and standards that include developed in a context-specific manner ‘drawing
specific prohibitions on amnesty which, while on society’s conceptions and needs of justice
not sources of law, are sources of political influ- and reconciliation’. The section on justice and
ence. However, there is a notable difference be- accountability recognises that these goals can
IF I T / L AW A ND P E ACE P R AC T ICE GROUPbe delivered through a combination of formal tional amnesties even for those responsible for
and traditional legal measures and should entail serious crimes, provided that they are intended
‘conciliation and restitution’. Further, it explic- to contribute to truth recovery and reparations
itly ‘leaves a margin of appreciation’ for Mem- to victims.
ber States to use plea bargains, pardons, and
mitigation and alternative forms of punishment Thus, even when international organisations
other than prison sentences. While it rejects have taken a strong stand against amnesties,
the use of ‘blanket’ or unconditional amnesties they tend to acknowledge that some forms of
that prevent investigations of serious offences, amnesty or leniency are permissible and may be
facilitate impunity for persons responsible for se- necessary to end violent conflict, though they
rious crimes, or perpetuate negative institutional differ on when a form of amnesty or leniency
cultures, it leaves open the possibility of condi- moves from permissible to prohibited.
IV. Scope for Creativity in Accountability
Throughout this paper, we have observed humanity to serve sentences of five to eight
how international legal and policy frameworks years of ‘effective restriction of freedoms and
governing states’ obligations following the rights’, if they acknowledge responsibility for
commission of international crimes and serious their crimes, provide reparation and commit to
human rights violations provide flexibility with non-repetition. The Office further observed that
respect to the pursuit of justice. This flexibility ‘reduced sentences are conceivable’ for interna-
is expressed in even more detail in The Belfast tional crimes, including ‘alternative or non-cus-
Guidelines on Amnesty and Accountability, which todial sentences’, provided that, among other
draw on state practice to acknowledge, in par- things, the convicted persons fulfils conditions
ticular, the availability, utility, and legitimacy of designed to contribute to achieving peace and
a variety of conditional amnesties. These include fulfilling victims’ rights.
amnesties contingent on individual offenders
7
surrendering and participating in disarmament, All told, these developments reflect a growing
demobilisation and reintegration programmes; realisation that peace and justice (broadly un-
participating in traditional or restorative justice derstood) can be incorporated in any negotiation
processes; fully disclosing personal involvement or post-conflict process in a way that furthers
in offences; testifying or providing information the goals of both. In this respect, our descrip-
on third-party involvement with respect to of- tive conclusion mirrors our normative position:
fences; surrendering illegal assets; contributing a principled and flexible approach to furthering
materially and symbolically to reparations; re- peace and justice is more likely to result in
fraining from the commission of new conflict-re- lessening the inevitable tensions between the
lated or political offences, or any other type two and more likely to succeed in furthering
of criminal activity; or adhering to time-limited both. While international law creates a duty to
bans on owning dangerous weapons, standing prosecute some international crimes and gross
for election or public office, or serving in the violations of human rights, the duty is framed in
police or armed forces. a way that allows space for flexibility and cre-
ativity. In addition, international law and policy
The value and permissibility of offering condi- are receptive to, and thus do not automatically
tional leniency to wrongdoers has also been prohibit, conditional amnesties or other forms of
recognised by the ICC’s Office of the Prosecutor, leniency, particularly those that further important
which publicly endorsed the peace agreement values such as truth, reparations, accountability,
between the Colombian government and the institutional reform, and guarantees of non-rep-
FARC that allows perpetrators of crimes against etition.
R E T HINK ING P E ACE A ND JUS T ICEV. A Better Approach
How can negotiators take advantage of the true and institutional and systemic factors that facili-
bandwidth of international law and policy to tated the commission of the proven crime often
accommodate the demands of peace and justice get much less attention. Furthermore, the full
in a way that each strengthens the other to experience of the victims is at best a secondary
produce more legitimate and sustainable results? feature, and at worst neglected, in most criminal
We argue that at least three elements are crucial: trials. Criminal trials also require a high level of
A) framing, B) negotiation mechanics, and C) a evidentiary certainty, which is appropriate given
focus on process over end point. the possible imposition of a sentence of incar-
ceration. But this means that guilty parties will
sometimes be acquitted, leaving the impression
A. Framing that the individual is innocent or that crimes did
How the relationship between peace and justice not occur, which may further disappoint victims,
is framed by those negotiating a transition can inflame societal tensions, or undermine confi-
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expand or limit the options available. Reducing dence in the administration of justice.
the issue to one of amnesty versus prosecution
oversimplifies and obscures the choices available These limitations with respect to the utility of
for reducing conflict and promoting truth, justice, criminal prosecutions do not detract from the
reparations, and guarantees of non-repetition. crucial role they can play in acknowledging harm
By contrast, more open framing of the question and assigning responsibility for atrocities. Such
helps unpack the requirements of justice and benefits are self-evident. Yet, a narrow focus that
peace into their constituent parts, revealing what equates justice with prosecution risks overlook-
measures might best further those individual ing weaknesses with respect to the utility of tri-
parts given the specific variables of the context. als and neglecting other mechanisms to address
By following this approach, negotiators are more such atrocities, thus undermining the scope for
likely to develop a creative and realistic set of achieving both peace and justice. An approach
8 options that better furthers peace and justice. to justice that instead understands it in the
broader fashion described above is not only a
1. Disaggregating Justice help to the constraints of peace negotiation, but
also an approach that is 1) less likely to over-
The concept of justice embodies a number of in-
burden criminal prosecution with tasks it cannot
terlocking objectives and moveable parts intend-
adequately or realistically perform, and 2) more
ed to bring positive outcomes for victims and
likely to produce creative responses that further
society. These can include exposing the truth;
a state’s international obligations in the areas
affirming social norms that reject violence and
of truth, justice, reparations, and guarantees of
criminality; rebuilding the rule of law and the
non-repetition.
legitimacy of justice institutions; individualising
guilt; deterring future violations; rehabilitating
and reintegrating offenders; spurring official ac- 2. Disaggregating Peace
knowledgement; supporting the healing process Like justice, the concept of peace encompass-
for victims; fostering reconciliation; and impos- es a number of interlocking imperatives and
ing forms of legal punishment that can extend constituent parts. In the short term, peace may
as far as disqualification from public office. mean the formal end of a violent conflict. In the
long term, peace requires the development of an
Criminal investigations and prosecutions are environment in which differences are negotiated
well-suited to achieving some of these elements through deliberative processes rather than vio-
of justice, and are ill-suited to achieving others. lent conflict, and in which fundamental human
For example, in transitional justice settings, crim- rights are recognised, enforced, and fulfilled.
inal trials focus on the responsibility of a single
accused (or at most a few) for what are often How a violent conflict ends influences the long-
individual acts within a larger context of conflict term viability of peace. Done too sloppily, the
or political repression. While the basis of individ- formal end to violent conflict may be illusory,
ual responsibility may eventually be proven, the setting the stage for future violence rather than
broader environment, root causes of violence, peace. Done more carefully, the formal ending of
IF I T / L AW A ND P E ACE P R AC T ICE GROUPa conflict can lay the groundwork for a realistic be as important as, and merit the same amount
long-term peace. A thoughtful, national reckon- of attention as, what is being negotiated. Four
ing with the past – through truth telling, ac- aspects of this topic merit special mention in
knowledgement, accountability, reparations, and relation to the subject of this paper.
reconciliation – can be important in this regard.
A first consideration concerns the use of con-
In this task, the relevance of amnesties is badly fidence-building measures to create the con-
misunderstood. They are often conflated with ditions of a viable process. It is often critical
impunity (understood as the absence of crim- for all sides in a negotiation to agree on early
inal prosecutions for serious acts of violence), measures that can contribute to building trust
and thus viewed as furthering an illegitimate between them, while also signalling to the
peace at the expense of justice. Yet, as we noted public the seriousness of the endeavour. Exam-
above, amnesties come in many shapes and ples include unilateral or bilateral ceasefires, the
sizes. While some may further impunity, care- unbanning of political parties, the agreement to
fully-designed conditional amnesties and other include agenda items of importance to the other
forms of leniency can be crafted in a way that side, and so on. Offers of legal leniency can also
furthers important elements of peace as well be important for early confidence building, and
as justice, as explained in detail in The Belfast need not be done in a way that forecloses later
Guidelines. Crucial to the long-term legitimacy agreements on accountability. For example, be-
of such conditional amnesties is a commitment fore the start of the peace negotiations leading
to prosecute or otherwise hold to account those to the transition in South Africa, the government
who do not take advantage of such bargains. used releases of high-profile prisoners, including
The legitimacy of the conditional amnesty in those who had been convicted of serious violent
South Africa, for example, has been seriously offences, to build trust.
undermined by the failure of the South African
Communication is a second important element
state to prosecute those individuals who were
of design and negotiation mechanics that can
either denied amnesty (because they did not
influence an approach to furthering peace and
fulfil their side of the bargain) or never applied
justice. A successful communications strategy 9
for it.
will link sensitive goals such as justice to the
broader post-conflict dividends the negotiation
In brief, it is more useful in the context of a
seeks to bring about, thus contributing to a
negotiation to frame the discussion around the
more manageable set of public expectations
important constituent elements of peace and
about what is feasible and possible. This in-
justice that each party wants to further, and then
cludes periodic updates, as circumstances allow,
move to a discussion about which mechanisms
about the progress being made and the continu-
are best suited to furthering those elements. By
ing challenges.
doing so, negotiations around accountability is-
sues become a discussion of means rather than Stakeholder input is another key consideration
ends, and are less likely to succumb to the false when peace and justice are being negotiated.
binary of prosecution versus amnesty, which Peace talks must take place in conditions that
limits the creative approaches available. While ensure confidentiality, but they need not operate
individual transitional justice measures can each hermetically in all respects. Except where the
contribute in important ways to furthering the negotiations are conducted in secret (i.e., with-
objectives of peace and justice, where they are out the public being aware of their existence),
creatively defined and combined, their individual key stakeholders – such as civil society, victims,
impacts can be multiplied in ways that facilitate political parties, and other actors – should
realistic and legitimate negotiated settlements. ideally have the ability to feed their ideas into
the process through one or more organised
mechanisms. This can help diversify the range
B. Negotiation Mechanics of perspectives on key issues, thus ensuring
In negotiations, good process design is imper- more context-sensitive results and increasing the
ative. While often perceived as a secondary or buy-in and ownership of the final agreement by
technical matter, a well-thought-out design is a fuller range of societal stakeholders. This in
necessary for creating a viable negotiation and turn can serve to foster cross-group coalitions
the possibility of an eventual agreement. Indeed, capable of future mobilisation to ensure imple-
how a negotiation is designed and managed can mentation and monitoring of the agreement.
R E T HINK ING P E ACE A ND JUS T ICEAn agenda that allows or encourages the parties risks creating a structure ill-equipped to confront
to connect the different issues on the negotiation an inevitably fluid process of implementation
table (e.g. disarmament, political participation, that will require frequent adjustments. A tran-
transitional justice, and so on) can also be high- sitional justice process is especially vulnerable
ly important. This is especially so in respect of in this regard, because issues of amnesty and
transitional justice which, because of its political criminal accountability are not only technically
and legal sensitivity, needs clear linkages to the complex, but also politically controversial and
broader aims of the peace negotiation. For ex- thus susceptible to intensive legislative battles
ample, the ability of a rebel group to transform and shifts in public opinion.
into a political party and participate in elections
could be tied to their surrender and disarma- With respect to amnesties in particular, it is im-
ment as part of a conditional amnesty and portant to distinguish between those enacted to
accountability process. These kinds of linkages facilitate the onset of a negotiating process and
and conditionalities have been an important part those incorporated in the final agreement (not
of the agreements reached – often strengthened to mention those that may be proposed years
with external stakeholder input – in many cases after an agreement has been signed in order
ifit institute for integrated transitions
of negotiated peace over the last thirty years. to facilitate reintegration and reconciliation).
An awareness of these temporal dimensions
of amnesty and other forms of leniency should
C. Process over End Point inform discussions of the measure’s objectives
Focusing on achieving a negotiated outcome and design. For example, if combatants are
that is more process than end point is usually given broad amnesties to surrender and disarm
wise. Given the distrust that naturally exists at the start of political negotiations, they may
between parties negotiating an end to armed have little interest in subsequent efforts to use
conflict, there is an understandable tendency leniency measures to encourage them to engage
to want to create an agreement with fixed and in truth telling, reparations or other justice-en-
measurable outcomes. Yet, such an approach hancing measures.
10
VI. Conclusion
A re-assessment of the relationship between While all negotiations are sui generis, and while
peace and justice is past due. In this discussion peace is by definition the principal aim of a
paper, we have observed how international law ‘peace negotiation’, in our experience a place
and policy provide ample space for flexibility for justice – when broadly defined – can usually
and creativity in combining peace and justice be found. This is especially so if the process is
objectives, including for the provision of some undertaken with an advance conception of what
form of leniency for perpetrators in exchange is possible and what is allowed. While justice is
for other social goods. We have also shown that at best one of many issues forming part of the
adopting such an approach, and applying the larger agenda of a peace negotiation, there is far
practices we have recommended, can increase more scope for incorporating and delivering on
the chance of getting political and peace negoti- it than parties often imagine.
ations underway and reaching more realistic and
legitimate agreements.
Founded in 2012, IFIT is an independent, international, non-governmental organisation offering
comprehensive analysis and technical advice to national actors involved in negotiations and transitions
in fragile and conflict-affected societies. IFIT has supported negotiations and transitions in countries
including Colombia, El Salvador, Gambia, Libya, Nigeria, Syria, Sri Lanka, Tunisia, Ukraine,Venezuela and
Zimbabwe.
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