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Post-Conflict Justice and Legal Traditions: a New Conceptual Framework

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Post-Conflict Justice and Legal Traditions: a New Conceptual Framework Kennesaw State University DigitalCommons@Kennesaw State University Doctor of International Conflict Management School of Conflict Management, Peacebuilding Dissertations and Development Fall 12-13-2019 Post-Conflict Justice and Legal rT aditions: A New Conceptual Framework Maureen E. Wilson Kennesaw State University Follow this and additional works at: https://digitalcommons.kennesaw.edu/incmdoc_etd Part of the International and Area Studies Commons, and the Peace and Conflict Studies Commons Recommended Citation Wilson, Maureen E., "Post-Conflict Justice and Legal rT aditions: A New Conceptual Framework" (2019). Doctor of International Conflict Management Dissertations. 29. https://digitalcommons.kennesaw.edu/incmdoc_etd/29 This Dissertation is brought to you for free and open access by the School of Conflict Management, Peacebuilding and Development at DigitalCommons@Kennesaw State University. It has been accepted for inclusion in Doctor of International Conflict Management Dissertations by an authorized administrator of DigitalCommons@Kennesaw State University. For more information, please contact [email protected]. Running head: POST-CONFLICT JUSTICE AND LEGAL TRADITIONS i POST-CONFLICT JUSTICE AND LEGAL TRADITIONS: A NEW CONCEPTUAL FRAMEWORK A Dissertation Presented to The College of Humanities & Social Sciences School of Conflict Management, Peacebuilding, & Development Kennesaw State University Kennesaw, GA In Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy in International Conflict Management by Maureen E. Wilson November 2019 POST-CONFLICT JUSTICE AND LEGAL TRADITIONS ii POST-CONFLICT JUSTICE AND LEGAL TRADITIONS iii Abstract Committee Members: Charity Butcher, Chair; Maia Hallward; Marcus Marktanner; Emilia Justyna Powell (The University of Notre Dame) Transitional justice seeks to deal with legacies of the most brutal conflicts and political transitions within states; however, there is no one-size-fits-all approach. Post-conflict justice, as a subset of transitional justice, is concerned with justice mechanisms in the wake of armed conflict. Despite a growing literature exploring the conceptualization and effectiveness of transitional justice, less attention has been paid to the factors influencing the decision to adopt transitional justice and choice of mechanism(s). Further, theoretical understandings of how these choices ultimately contribute to the broader goals of justice, truth, and peace are limited. This study proposes domestic legal traditions as an explanatory factor influencing the pursuit of post- conflict justice. More specifically, I expect to find that states have preferred, or congruent post- conflict justice mechanisms based on their domestic legal traditions. To test this relationship, I develop a congruence variable to link domestic legal traditions to post-conflict justice mechanisms. I utilize the Post-Conflict Justice (PCJ) Dataset to test hypotheses regarding adoption and mechanism selection, finding that states prefer specific post-conflict justice mechanisms. More importantly, a survival analysis shows that the implementation of congruent post-conflict justice mechanisms increases the likelihood of longer-lasting peace in the post- conflict period. These findings provide key insights into important factors that can inform policy and best practices when considering the adoption and implementation of post-conflict justice. Keywords: post-conflict justice, transitional justice, legal tradition POST-CONFLICT JUSTICE AND LEGAL TRADITIONS iv Acknowledgments I am deeply indebted to my committee for the completion of this project. Dr. Charity Butcher, Dr. Maia Hallward, Dr. Marcus Marktanner, and Dr. Emilia Justyna Powell all contributed to the development and refinement of this dissertation in many ways. Dr. Charity Butcher demonstrated infinite patience and unwavering support while allowing me the space to think through the challenging aspects of this project. Dr. Maia Hallward provided insightful, specific feedback that made this work significantly better. Dr. Marcus Marktanner has been a wonderful friend and writing partner during my time in the Ph.D. program. Dr. Emilia Powell has encouraged me from my first day of graduate study and for many years across several institutions. My early work with her was instrumental in the development of this project. In addition to my committee, many others have provided support and encouragement that have led me to this point. Darin Van Tassell and the late Charles Crouch offered excellent advice early on. The School of Government and International Affairs at Kennesaw State University provided an environment that was conducive to completing my studies while working. I offer my sincerest thank you to Tavishi Bhasin for her genuine and enthusiastic encouragement and to Josh Azriel for coffee breaks and pep talks. I especially acknowledge the faculty and students of the Master of Public Administration program who have cheered me on, in particular: Misty Grayer, Barbara Neuby, Chenaz Seelarbokus, and Ulf Zimmermann. Jerry Herbel is my biggest champion, and this would not have been possible without him. I would be remiss not to mention Jordan Blackwood, Jan Johnson, Barbara Stephens, Sabina Akther, Alex Mercuri, and Tonya Condon for always being in my corner. I am eternally grateful to Victoria Keiper, Leticia McGrath, Casey Schwartz, Leah Stanojevich, and Shawna Williams for their love and friendship. Natalia Meneses was there every step of the way, and for POST-CONFLICT JUSTICE AND LEGAL TRADITIONS v that, I am thankful. My appreciation for Casey Wilson and all that she has done and continues to do is more than words can express. Finally, my mother, Dana’, and sisters, Kate and Kelly, deserve the most heartfelt acknowledgment for their unfailing support and profound belief in my abilities. Thank you. POST-CONFLICT JUSTICE AND LEGAL TRADITIONS vi Table of Contents Signature Page………………………………………………………………………………….. ii Abstract…...……………………………………………………………………………………. iii Acknowledgments……………………………………………………………………………… iv Table of Contents……...……………………………………………………………………….. vi List of Tables………………………………………………………………………………….... ix List of Figures…………...…………………………………………………………………….... xi List of Acronyms………………………………………………………………………………... x Chapter 1: Introduction………………………………………………………………………... 1 History of Transitional Justice…………………………………………………………… 6 Transitional Justice in Ancient Athens…………………………………………... 6 Post-War Transitional Justice……………………………………………………. 9 Transitional Justice in Third Wave Democracies………………………………. 10 Contemporary Transitional Justice…………………………………………...… 11 Conceptualizing and Defining Transitional Justice…………………………………..… 12 The State of the Field………………………………………………………………….... 16 Scope of the Study and Map of the Project……………………………………………... 17 Chapter 2: Literature Review………………………………………………………………… 20 Introduction……………………………………………………………………………... 20 Adopting Transitional Justice………………………………………………………...… 21 Choosing Mechanisms for Transitional Justice………………………………………… 25 Impact and Efficacy of Transitional Justice…………………………………………..… 28 The Gap – The Inclusion of Legal Traditions in Choosing Transitional Justice……..… 36 Chapter 3: Congruence and Post-Conflict Justice………………………………………...… 41 Introduction………………………………………………………………………….….. 41 Congruence Theory, Authority Patterns, and Political Culture………………………… 43 Authority Patterns…………………………………………………………….… 43 Congruence in the Literature………………………………………………….... 45 Comparative Legal Traditions………………………………………………………..… 47 Legal Traditions versus Legal Systems……………………………………….... 50 Domestic Legal Traditions of the World……………………………….. 52 POST-CONFLICT JUSTICE AND LEGAL TRADITIONS vii Civil Law Tradition………………………………………...…… 52 Common Law Tradition……………………………………….... 54 Islamic Law Tradition………………………………………...… 55 The Islamic Concept of Justice…………………………………. 60 Domestic Legal Traditions in the Literature………………………….… 61 Law and Culture……………………………………………………………………….... 63 The Cultural Role of Legal Traditions in Conflict Resolution and Transitional Justice…………....……………………………………………………………… 68 Transitional Justice as a Western Concept…………………………………...…. 70 Retributive and Restorative Justice…………………………………………………..…. 71 Goals of Transitional Justice………………………………………………………….… 73 Linking Goals to Mechanisms………………………………………………..… 74 Criminal Trials………………………………………………………….. 74 Truth Commissions……………………………………………………... 76 Reparations…………………………………………………………...… 77 Amnesty………………………………………………………………… 78 Purges and Exiles……………………………………………………….. 79 Introduction of Hypotheses…………………………………………………………..…. 80 Hypotheses……………………………………………………………………… 81 Conclusion…………………………………………………………………………...…. 83 Chapter 4: Research Design and Methodology…………………………………………….... 85 Hypotheses…………………………………………………………………………….... 86 Methodology and Research Design………………………………………………….…. 89 Research Design: Large-N and Secondary Data Analysis…………………….... 89 Description of the Data and Dependent Variables……………………………… 90 Temporal Domain………………………………………………………….…… 91 Unit of Analysis……………………………………………………………….... 91 Primary Independent Variables: Coding Legal Traditions and Congruence………….... 92 Control Variables……………………………………………………………….. 94 Models…………………………………………………………………………………... 98 Chapter 5: Quantitative Analysis: Post-Conflict Justice Adoption and Congruence…… 102 POST-CONFLICT JUSTICE AND LEGAL TRADITIONS viii Introduction……………………………………………………………………………. 102 Preliminary Data……………………………………………………………………..... 103 Results and Analysis…………………………………………………………………..
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