Challenges of Punitive and Reconciliatory Measures

Here is a recent essay from class. This topic dealt with punitive measures and reconciliatory measures used to prosecute offenders of atrocities. We were to discuss the challenges that different actors face when balancing which measure to use. I'd be interested in your thoughts.

Nation/State-Building Challenges of Punitive and Reconciliatory Measures

    Patrice McMahon and Jon Western warn that (2009), "After 14 years of the international community's effort in the Balkans, eight in Afghanistan, and six in Iraq, it is clear that state building is not for the faint of heart" (McMahon & Western, 2009). These examples and many others prove two things. State building has become a rule following conflicts, and it is not easy. When states, coalitions or international institutions engage in the post-conflict nation/state building process, they face several challenges. They are challenged with understanding the conflict. They are challenged with determining a solution to the conflict, and they are challenged with adjudicating the conflict.

    Adjudicating the conflict offers specific challenges. External actors must balance the punitive and reconciliatory measures necessary to ensure justice. In doing so they must take into consideration three things. First, external actors should consider their effect on state sovereignty. By virtue of their intervention, external actors interfere with state sovereignty. Second, they should consider whether a certain measure of force may be necessary to either bring about an end to conflict or to maintain an end of conflict. Third, they must determine an effective solution to accountability. They must also determine which form of accountability will achieve the most effective result. Additionally, since future conflict remains an unavoidable problem for the international community, who is most effective in meeting those challenges - the state, international institutions or others, such as non-governmental organizations (NGO)? The entire process of conflict resolution, then, is a balancing act of challenges for both punitive and reconciliatory measures.

PUNITIVE MEASURES; RECONCILIATORY MEASURES

    Trials and tribunals, such as those conducted at Nuremburg following WWII, are generally punitive post-conflict measures. Their intent is to prosecute those who are responsible for atrocities. On the one hand, punitive measures are necessary to seek justice. On the other hand they can also act as a deterrent for future violence. In terms of international justice, Ramsbotham et al believe that trials (2005) "are an essential ingredient in the struggle to assert internationally endorsed humane standards" (p. 241).

    Truth commissions lean more towards a reconciliatory measure in that they do not entirely prosecute fault. They more so explain fault. The truth commissions used in South Africa, for instance, were particularly important for closing a dark chapter on racial and ethnic abuses. While some suggest truth commissions do not fully prosecute offenders, they do expose the gravity of situations. In South Africa the extent to which apartheid was a function of inhuman treatment became "truth." It was hard to deny those abuses took place. Jonathan Tepperman expressed this in a Foreign Affairs essay in which he cites a South African Constitutional Court judge. The judge, Richard Goldstone, says (2002), "If we had not had a truth commission, the denial of apartheid-era abuses …would no doubt continue to this day" (p. 135-136). Outside actors take on several challenges in choosing which measure to apply.

SOVERIEGNTY

    One challenge outside actors face is that they are outside actors. They cross the lines of sovereignty to intervene in situations. Since the end of the Cold War, lines of sovereignty have been crossed many times including Somalia, Haiti, Cambodia, the Balkans, Iraq, Afghanistan (Fukuyama, 2004) and most recently Pakistan. We should reflect on the following observation Francis Fukuyama made in his aptly titled book, State-Building:

State sovereignty was a fiction or bad joke in the case of countries like Somalia or Afghanistan, which had descended into rule by warlords. Dictators and human rights abusers like Serbia's Milosevic could not hide behind the principle of sovereignty to protect themselves as they committed crimes against humanity, particularly in multiethnic states like the former Yugoslavia where the borders of the sovereign state in question were themselves contested. Under these circumstances, outside powers, acting in the name of human rights and democratic legitimacy, had not just the right but the obligation to intervene. (p. 97)

    Intervening in a situation inherently requires an organization to inject itself into the troubled nation. In Bosnia for instance, many international organizations entered the scenario. The United Nations, NATO, the EU, the United States and many more separate organizations sought to help the Balkan states recover from both fighting and atrocities. McMahon and Western suggest that at one point over 262 (McMahon & Western, 2009) entities were working within Bosnia. To say that Bosnia had any control of itself at that time would be laughable. They did not.

    Yet, as Fukuyama said, the international community essentially had an obligation to intervene because the Balkan conflict had human rights interests and international interests. Necessary intervention, though, can become problematic. Over time the intervention of external actors creates a sense of fatigue. James O'Brien illustrates the fatigue by saying (2006), "many in the region may be tired of change; as one participant told me, the states 'are tired of transition'" (p. 80). In that case the international community must determine which actor is best suited to mete out justice, bring about change and avoid upsetting too extensively states' rights of sovereignty.

    For this particular challenge, regional coalitions, such as the EU, may be the most effective element. In the Balkans, there is a specific incentive for participation by the affected nations. It is in their best interest to become members of the EU. Conversely, the EU is able to leverage its incentive to effect changes. Elizabeth Pond notes that (2008), "The trump card is that the Kosovar Albanians, like everyone else in the Balkans, yearn to join the EU…and must be on their best behavior to qualify" (p. 104). Because they hold that "trump card" of dependency, regional institutions can be more nimble in terms of interfering with sovereignty. But what if more than just access to the troubled state is needed?

APPLYING FORCE

    Fukuyama argues that force was the necessary measure needed to "pacify" the Balkans. Drawing a distinction between applying peace and applying force, Fukuyama suggests the following (2004):

the European peacekeepers contributed to the problem by not being willing to fight; in places like Srebrenica, they were held hostage and needed to be rescued. It was only as a result of actions by states that were willing to decisively use traditional forms of military power - the Croatians in the case of Bosnia and the Americans in the case of Kosovo - that Serbian domination was ended and the Balkans pacified. (p. 116)

A particularly frustrating challenge actors face in troubled situations is to what extent should force be applied to quell violence. Arguably the UN has a poor track record of applying force in situations. An equally arguable point some might make is that member states, such as the U.S., can be unreasonably forceful. Actors must consider to what extent force should be applied in the situation. This determination can impact the method external actors use to achieve justice be it punitive or reconciliatory.    

    Ramsbotham et al suggest there is a need to end violence before meting out justice. Referring to the aforementioned, Richard Goldstone, who was also involved in criminal tribunals of the former Yugoslavia, they note that (2005) "without a cessation of violence there is usually no hope of bringing perpetrators of atrocities to justice" (p. 241). When external actors must force an end to violence, they must also be careful not to blur the legal lines of war and peace. Kenneth Roth makes this point regarding the United States' handling of detainees in Iraq and Afghanistan. In an essay for Foreign Affairs he says (2004), "using war rules when law-enforcement rules could reasonably be followed is dangerous…But if war rules apply, the government is never obliged to prove a suspect's guilt" (p. 5).

    That is not to say external actors would either apply rules of war or apply rules of peace when prosecuting alleged offenders. But, the effect of the measure of force applied to end violence could cause actors to apply more punitive measures instead of reconciliatory ones or vice versa. Therefore it may be incumbent upon international institutions, such as the UN, to affix a punitive or reconciliatory label to the resolution process. As an institution that should remain somewhat impartial, they would likely be more effective at determining a path to justice. This way accountability can be properly applied on both sides of the conflict.

EFFECTIVE ACCOUNTABILITY

    After a conflict, intervening actors are challenged to deal with the question of what to do with the accused. Part of the resolution process involves holding perpetrators accountable. This is in part a matter of upholding regional and international human rights norms. It is also a matter of closing painful chapters of history for the offended so they and the nation can move on. Henry Kissinger put it this way in a 2001 Foreign Affairs essay (2001), "It is an important principle that those who commit war crimes or systematically violate human rights should be held accountable" (Kissinger, 2001). But what does it mean to be held accountable? For instance which process of justice would have served both the former Serbian President, Slobodan Milosovic, and the Serbian people? Was the International Criminal Tribunal for the Former Yugoslavia (ICTY) sufficient? Or would a less punitive approach, such as truth commissions used in Central and South America, have effectively moved the conflict forward?

    It is difficult to say because both methods have inherent problems. Michael Humphrey, in a 2003 essay, points out that (2003), "The main public criticisms of truth commission reports…[is] governments' failure to implement the recommendations of reports, especially on reparations" (p. 178). As was mentioned before, truth commissions expose the truth. On many levels they contribute to the emotional healing of a nation. But, when severe atrocities are committed, blanket forgiveness may not be a viable option.

    What further complicates determining accountability is determining through which means accountability is served. This is specifically true of punitive measures. Laura Dickinson offers a reasonably convincing suggestion that instead of purely domestic or purely international courts, a hybrid system of justice may be most effective to ensure proper accountability (Dickinson, 2003). She argues that domestically courts (2003), "do not capture the complexity or magnitude of the atrocities" (p. 305). In essence, domestic judicial systems are not designed to handle the extent of atrocities which often are of an international scope.

    Conversely she argues that internationally (2003), "there is often such a limited base of familiarity with the norms in question that such authority is meaningless" (p. 305). In other words, courts, such as the International Criminal Court, can be so far removed from the problem that their lack of understanding regional and local laws has negative ramifications. For these reasons, then, regional institutions may be most effective at determining accountability. Institutions such as NATO have a vested interest in resolving conflict particularly when member states are involved. Also, because of their regional familiarity, NATO and similar regional institutions may more effectively issue meaningful authority rather than "authority [that] is meaningless".

    Undoubtedly nation/state-building is very complicated. But, it is an inescapable international process. Fukuyama offers (2004), "Peace is of inestimable benefit to the people living in those countries and justifies the international effort" (p. 103). The challenges of sovereignty, use of force, and effective accountability are a few of the many challenges external actors face when trying to resolve conflicts. It is important for the international community to balance those challenges. And, it is important for the international community to apply the proper institution to those challenges. Doing so may bring about a more effective end to conflict whereby either punishment or reconciliation is best served.

 

Dickinson, L. (2003). The promise of hybrid courts. The American Journal of International Law
, 97 (2), 295-310.

Fukuyama, F. (2004). State-building: governance and world order in the 21st century. Ithaca, New York: Cornell University Press.

Humphrey, M. (2003). From victim to victimhood: truth commissions and trials as rituals of political transition and individual healing. The Australian Journal of Anthropology
, 14 (2), 171-187.

Kissinger, H. (2001, July/August). The pitfalls of universal jurisdiction. Foreign Affairs
, 80 (4), pp. 86-96.

McMahon, P. C., & Western, J. (2009, Sep/Oct). The death of dayton. Foreign Affairs
, 88 (5), pp. 69-83.

O'Brien, J. C. (2006, Summer). Brussels: next capital of the balkans? The Washington Quarterly
, 29 (3), pp. 71-87.

Pond, E. (2008, Autumn). The EU's test in kosovo. The Washington Quarterly
, 31 (4), pp. 97-112.

Ramsbotham, O., Woodhouse, T., & Miall, H. (2005). Contemporary conflict resolution (Second Edition ed.). Malden, MA: Polity.

Roth, K. (2004, January/February). The law of war in the war on terror. Foreign Affairs
, 83 (1), pp. 2-7.

Tepperman, J. D. (2002, March/April). Truth and consequences. Foreign Affairs
, 81 (2), pp. 128-145.