Politics of Transitional Justice Examining Arrests of Former Wartime Leaders as An Electoral Manipulation Strategy in Post-Conflict Countries

Triveni Chand Master's Thesis Spring 2020

Department of Peace and Conflict Research, Uppsala University Supervisor: Anders Themnér

ABSTRACT

The systematic variation in arrests of former wartime leaders (including political/military leaders and those with commanding positions from both sides of conflict among other high-level wartime actors) in post-conflict countries have rarely been recognized and studied. Building on past literature that interlinks transitional justice with domestic politics, this study argues that the variation in arrests of former wartime leaders can be explained by elections and electoral manipulation theory. Amid the costs and opportunities associated with elections in , I argue that incumbents also opt for arrests of former wartime leaders as an electoral manipulation strategy to eliminate political opponents and consolidate power in the guise of justice and, at the same time, minimize the costs associated with electoral manipulation tools. Hence, I hypothesize the arrest of former wartime leaders likely to be during the election period (the pre-election period, election day, and immediate post-election period). All else equal, the statistical test does not support the hypothesis while the complementary evidence from post-conflict Nepal and suggest that presence (or absence) of justice in post-conflict countries is largely shaped by domestic politics. Similarly, few arrests in Sri Lanka and Nepal offer mild support to the theoretical expectations while few other arrests in Sri Lanka suggest that some arrests during the hypothesized election period are coincidental. This further questions the explanatory power of the suggested theory and findings.

Key Words: Post-conflict Countries, Transitional Justice, Criminal Prosecution, Former Wartime Leaders, Arrests of Former Wartime Leaders, Election Manipulation

2 ACKNOWLEDGMENTS

I want to express my gratitude toward my supervisor Anders Themnér for being a great supervisor and generously providing me with the unpublished dataset for this study. Thank you, Anders, for providing helpful comments and suggestions and addressing my queries on the dataset. I also want to extend my deep graduate to Henrik Persson who took out the time to address my questions concerning the dataset and providing me with additional documents. A great thank you to Lisa Hultman for providing me with the dataset and feedback on quantitative parts. Heartfelt thank you to my family for all the love and support.

3 TABLE OF CONTENTS List of Abbreviations ...... 6 List of Figures, Tables, and Annexes……...... 7 1. INTRODUCTION...... 8 2. THEORETICAL FRAMEWORK…………………………………………….....…….. 12 2.1 Previous Research ...... 12 2.1.1 Issues of Stability vs. Justice...... 12 2.1.2 Relative Power of Outgoing and Incoming Elites ...... 13 2.1.3 International Support and Pressure ...... 14 2.1.4 “Politics of Present” ...... 14 2.2. Election and Electoral Manipulation...... 15 2.2.1 Defining Elections...... 15 2.2.2 Election in Post-conflict Countries ...... 15 2.2.3 Defining Electoral Manipulation ...... 16 2.2.4. Electoral Manipulation: Explaining Behavior and Strategies of Incumbents.17 2.2.5. Electoral Manipulation Timing ...... 18 2.3 Main Argument of this Study ...... 19 3. RESEARCH DESIGN ...... 24 3.1 Dependent Variable: Arrests of Former Wartime Leaders ...... 24 3.2 Independent Variable: Elections ...... 26 3.3 Control Variables ...... 27 3.4 Statistical Model………………………………………………………….…..……….. 30 4. ANALYSIS ...... 31 4.1 Description of Data...... 31 4.2 Findings ...... 34 4.3 Discussion...... 40 4.3.1 Discussion on Impunity and Arrests in Post-Conflict Nepal ...... 41 4.3.2 Discussion on Impunity and Arrests in Post-Conflict Sri Lanka...... 44 4.3.3 Discussion on Additional Observations ...... 54 4.4. Alternative Explanation ...... 57 4.5. Limitations and Potential Bias ...... 59 4.5.1 Theoretical Limitation ...... 59 4.5.2 Research Design and Statistical Limitation...... 60

4 5. CONCLUSION ...... 62 6. ANNEXES ...... 65 References ...... 71

5 ABBREVIATIONS CL Civil Liberties CPA Comprehensive Peace Agreement CPN-Maoist Communist Party of Nepal-Maoist DAC Development Assistance Committee EU HRW Human Rights Watch ICC International Criminal Court ICTR International Criminal Tribunal for Rwanda ICTY International Criminal Tribunal for Former International IDEA International Institute for Democracy and Electoral Assistance IPU Inter-Parliamentary Union JVP Janatha Vimukthi Peramuna/People’s Liberation Front LPM Linear Probability Model LTTE Liberation Tigers of NATO North Atlantic Treaty Organization NELDA National Elections across Democracy and Autocracy NPP National Patriotic Party OECD Organization for Economic Co-operation and Development PL Political Rights RO Regional Organization RRF Rwandan Patriotic Front SLD Sojusz Lewicy Demokratycznej/Democratic Left Alliance SLFP Sri Lanka Freedom Party (SLFP) TRCs Truth and Reconciliation Commissions UCPN-Maoist United Communist Party of Nepal-Maoist UCDP Uppsala Conflict Data Program UN UNP United National Party UDMF United Democratic Madhesi Front YCL Young Communist League

6 LIST OF FIGURES, TABLES, and ANNEXES

Figure 1: Distribution of Arrests in Post- Conflict Countries...... 32 Figure 2: Distribution of Elections in Post- Conflict Countries...... 33 Figure 3: Chi-squared Test for Tabular Association…………...... 34

Table 1: Logit Estimates on the Likelihood of Arrests in Post-conflict countries, 1989- 2017…………………………………………………………………………………………..36 Table 2: Logit Estimates on the Likelihood of Arrests in Post-conflict countries after Omitting the Arrests Carried out after the Immediate Post-election period, 1989- 2017...... 39

Annex I: Table of Summary Statistics...... 65 Annex II: Logit Estimates of the Likelihood of Arrests in Post-conflict Countries without Lagged Variables, 1989-2017...... 66 Annex II: An overview of the arrests of former wartime leaders coinciding with elections in post-conflict countries, 1989-2017...... 67 Annex IV: Frequency Distribution of Arrests of Former Wartime Leaders in Post-Conflict Countries, 1989-2017...... 70 Annex V: Frequency Distribution of Elections of Former Wartime Leaders in Post-Conflict Countries, 1989-2017...... 70

7 1. INTRODUCTION The transitional justice field has grown exponentially and gained global recognition over the last 20 years (Nesiah 2016: Loyle & Davenport 2016). The growth is observable in its institutionalization within the United Nations (UN), regional organizations, and government agencies, legal and policy developments, and an expanded network of practitioners and scholars working in the field (Nesiah 2016). Such growth has been contributing to establish transitional justice as a customary international norm/law to reckon with the legacy of past atrocities (Nagy 2008; Buckley-Zistel et al. 2014). Based on Kritz (1995), Höglund & Orjuela (2013) define transitional justice as “a concept which has been used to denote mechanisms for addressing past human rights atrocities in countries emerging from violent conflict or authoritarian rule” (302-303). The institutions and mechanisms of transitional justice encompass criminal accountability through International Criminal Court (ICC), hybrid courts, and national court, Truth and Reconciliation Commissions (TRCs), and reparations programs to name a few (Nagy 2008; Loyle & Davenport 2016). Similar to other mechanisms of transitional justice, criminal prosecution is associated with ending the culture of impunity, reinforcing commitment towards the rule of law, and more importantly providing justice to victims, thereby opening the gateway to reconciliation (Oko 2003; Nuzov 2014; Greenstein & Harvey 2017). However, sometimes the high-level prosecution focused on top and commanding positions are considered sufficient to establish the truth of the past and hear the victim’s voices, especially in response to logistic necessities when a majority of the populations are directly or indirectly linked to past atrocities (Koskenniemi 2002). Individual prosecution also helps to avoid the culture of collective guilt and retribution that can eventually reignite a conflict (Grodsky 2008). Primarily motivated by the growing field of transitional justice and the focus on the accountability of former wartime leaders/ from both sides of a conflict, this study seeks to answer what explains the variation in arrests of former wartime leaders in post- conflict countries1 over time? For example, the conflict/war in Guatemala ended in 1996, but the government carried out the first two high-level arrests for alleged war crimes only in 2006 (Almqvist & Esposito 2011). There was no news of other high-ranking arrests until Hector Bol de la Cruz, the former Police Chief was arrested in 2011 (see Kreutz et al. 2019a Dataset).

1 In this study, post-conflict countries refer to countries that had experienced intrastate armed conflict; therefore, interchangeable with civil war/war later. Intrastate armed conflict follows the definition of the Uppsala Conflict Data Program (UCDP) which defines armed conflict as “a contested incompatibility that concerns government and/or territory where the use of armed force between two parties, of which at least one is the government of a state, results in at least 25 battle-related deaths in one calendar year” (UCDP (a)).

8 Similarly, in Bosnia and Herzegovina, arrests linked to past crimes started shortly after the conflict ended in 1995 but a considerable number of arrests of former high-ranking officials took place only in the latter part of 2004 and early 2005 (Kerr 2005). Adopting from the unpublished codebook of Kreutz et al. 2019b,2 the former wartime leaders/commanders refer to wartime political leaders and senior government officials in government,3 those with commanding positions in military/armed government units,4 leaders/commanders of / group(s) allied with the government, political representatives/leaders and senior commanders of rebel groups/non-state armed groups (collectively, these high-level actors are hereafter referred to as former wartime leaders). An examination into past and current literature reveal that the variations in arrests of former wartime leaders have neither been exclusively studied nor been recognized except rarely like in the case of Bosnia and Herzegovina above. Although a research gap exists, past research offers valuable knowledge on what explains the presence (or absence) of transitional justice and its mechanisms in general. Within their various theoretical framework and argument, the past research more or less agrees that transitional justice and its mechanisms at a domestic level is influenced by political power struggles (e.g. Welsh 1995; Szczerbiak 2002; Subotić 2009; Grodsky 2009; Nuzov 2014). Considering that political power struggle heightens during elections which makes incumbents resort to different electoral manipulation tools to maintain and consolidate power (further discussed in the theory section), this research presents the arrests of former wartime leaders as a viable electoral manipulation strategy and hypothesize that arrests are likely to be carried out against the former wartime leaders during the election period (i.e. pre-election period, election day and immediate post-election period). The arrests make up a viable electoral manipulation tool because it provides an opportunity to target the top leadership of opposition (e.g. Nouwen & Werner 2010), help downgrade the image of opposition while elevating its image as a moral authority (e.g. Nouwen & Werner 2010), adds credibility to the elimination

2 The codebook is part of an ongoing project currently named, “Arrested Development: The Dangerous Mix of Patronage and Justice in Post-conflict Countries” with the project leaders as Joakim Kreutz (Department of Peace and Conflict Research, Uppsala University and Department of Political Science, Stockholm University) and Anders Themnér (Department of Peace and Conflict Research, Uppsala University).

3 Political leaders and senior government officials concern “heads of state, prime ministers, members of cabinet or legislature, or senior government officials in state agencies/departments” (Kreutz et al. 2019b: 1).

4 Military leaders and those with commanding positions concerns military leaders, , chief of , senior commanders, commanders, senior officers while the official armed government units include “armed forces, navy, air force, police, security agencies” (Kreutz et al. 2019b: 1).

9 of political opponents (e.g. Kirchheimer 1961), and provides a disguise for other transgressions (e.g. Oko 2003; Loyle & Davenport 2016). Understanding the factors that influence the likelihood of arrests built on the premise of the politicization of justice has twofold benefits. First, exploring the conditions under which the states employ justice is essential to give clarity to the reasons for the success or failure of transitional justice, its policies, and mechanisms (Grodsky 2008). In other words, understanding the conditions under which justice is employed helps improve the outcome of transitional justice without disregarding the justice mechanism altogether (Ibid). Similarly, Nesiah (2016) points out that when transitional justice stands as a depoliticized technical framework with universal relevance, it gives rise to ill-preparedness in response to political actors whose goals might be different (and even harmful) than serving justice. Therefore, studying the variation in arrests of wartime leaders and exploring its political aspect has both academic and policy implications. In addition to addressing the theoretical gap by connecting arrests of former wartime leaders with elections and electoral manipulation theory, this study makes an empirical contribution by statistically testing the relationship between arrests of former wartime leaders and election while controlling for the other variables suggested by the past research. The statistical analysis includes 64 post-conflict countries by country-year (N=1412) from 1989 to 2017, predominantly built on unpublished Kreutz et al. (2019a) dataset on arrests of former wartime leaders with some additional coding to complement the dataset.5 The statistical findings are comprehensively discussed in the light of evidence from post-conflict Nepal and Sri Lanka which helps to trace the suggested causal mechanism to some extent. Initially, a statistically significant positive association between arrests of former wartime leaders and elections is observed, all else equal. However, having a country-year as the unit of analysis invites the problem of some arrests taking place after the hypothesized election period (i.e. pre-election period, election day, and immediate post-election period) in the given election year. Once the arrests that were carried out after the hypothesized election period are omitted, the initially observed statistically significant relationship no longer holds, all else equal. The evidence from Nepal and Sri Lanka suggests that lack of arrests or presence of impunity interplay with domestic politics, alongside providing mild support to the suggested theoretical mechanism. However, few other arrests in Sri Lanka show the possibility of some arrests during the hypothesized election period as coincidental. With the acceptance that this study

5 The additional coding was done based on my internship experience in the project which largely focused on coding arrests of former wartime leaders. The additional coding was also cross-checked with Anders Themnér who is one of the project leaders and also my advisor for this paper.

10 faces a setback on its research design, the statistically significant relationship that is initially observed between election years and arrests compared to lack of significant association between arrests and other variables based on the past research opens the possibility for further research. The next chapter on the theoretical framework begins with a brief review of the relevant literature. After reviewing the past literature, the theory on elections and electoral manipulation are presented by first defining election, second by establishing the importance of election in post-conflict countries, third by explaining behavior and strategies of incumbents, fourth by establishing electoral manipulation timing, and lastly by arguing why arrests of former wartime leaders serve as a viable electoral manipulation strategy. The third chapter presents the research design, followed by an analysis in the fourth chapter. The discussion on statistical findings is complemented with the evidence from post-conflict Sri Lanka and Nepal. The fourth chapter ends with a discussion on additional statistical observations, an alternative explanation to the outcome observed, and lastly presents limitations and potential bias of this study. The final chapter concludes by providing potential directions for further research.

11 2. THEORETICAL FRAMEWORK This chapter first presents and discusses existing literature in the field of transitional justice. It concludes that the existing studies partly agree that the presence (or absence) of transitional justice in the aftermath of a conflict interplays with domestic politics within their main theoretical framework and argument. I connect the premise of politicized justices with elections and electoral manipulation theories to explain variation in the arrests of former wartime leaders in post-conflict countries. Then, the hypothesis to be tested later is presented.

2.1 Previous Research The literature on transitional justice has generally been focused on “what is being done and what should be done” to the alleged perpetrators of crimes committed in the past (Loyle & Davenport 2016). The limited literature explores the presence (or absence) of transitional justice mechanism in general which can be mainly divided into (1) the issues of stability vs. justice (e.g. Nagy 2008; Grodsky 2008), (2) the relative power of old and new political elites (e.g. de Brito 1997; Grodksy 2008; Nalepa 2010), (3) international pressure and/or support (Subotić 2009), and lastly (4) “politics of the present” (e.g. Welsh 1996; Szczerbiak 2002; Nuzov 2014).

2.1.1 Issues of Stability vs. Justice The age-old argument that has been used to justify the absence of transitional justice mechanisms, especially the prosecution of alleged perpetrators for past crimes in a post-conflict period, is the issues of stability vs. justice. It is argued that seeking justice, especially during the fragile transitional period can make conflict parties withdraw their commitment to peace, thus reigniting a conflict (Nagy 2008). Such clemency is argued to harm domestic consolidation as the practice of burying the past can mean burying the ethical values without which safe and peaceful societies are unlikely (Grodsky 2008). Nevertheless, stability vs. justice remains a contested topic among practitioners and scholars alike (Nagy 2008). Even political actors in post-conflict countries use the issue of stability when pushed to deal with a violent past (Ibid). For example, the Kenyan government was sometimes found seeking deferral of the ICC cases by claiming that the prosecution will hamper the peace and stability in the country (Hansen 2013). On the other hand, some Kenyan political elite supported different justice processes which Hansen (2013) claims were based on various considerations. One of such considerations was the prospects of targeting political opponents under the guise of justice (Ibid).

12 2.1.2 The Relative Power of Old and New Political Elites The second sphere of argument focuses on the relative power of old and new elites determined by (a) types of political transition and (b) types of state structure following a conflict. Concerning relative power based on political transitions, literature (e.g. de Brito 1997; Peskin & Boduszyn´ski 2003; Pinto 2008; Grodsky 2008) often refer to Huntington (1991) who argues that the types of transition affect political power distribution in a post- conflict period, consequently affecting justice options available to new elites. Huntington (1991) proposes that a harsh or aggressive form of justice is more likely in states where the transition was brought through a revolution as the power base of the former regime that determines their ability to cause problems to new elites is presumably destroyed (cited in Grodsky 2008). On the other hand, the new elites are likely to pursue a softer form of justice if a transition from a conflict to a post-conflict state was negotiated (Pinto 2008). The negotiated transitions are often bound by explicit or implicit amnesties and the share of power offered to the members of old regimes (Grodsky 2008). Within the relative power theory lies the state structure argument where alleged perpetrators of past crimes continue to hold powerful military and bureaucratic positions in the post-conflict period (Grodsky 2008). With a significant influence and resources at their disposal, pursuing justice against the alleged perpetrators becomes risky and difficult (Smith 2012). Grodsky (2008) adds that even lower-level officials at large numbers with alleged associations to past crimes can collectively pose an equal threat if they continue to become part of the state structure. Overall, the broader bureaucracy made of alleged perpetrators in powerful positions and others with a feeling of complicity in past crimes affects the power and control of the new elites, thus limiting the pursuit of justice (Grodsky 2008; Subotić 2009; Nalepa 2010). Subotić (2009) points out that types of political transition can have a significant effect on post-conflict state structures. The transition achieved through stronger compromise or negotiation is more likely to have loyalists of an old regime embedded in the new state structures (Ibid). Smith (2012) agrees that the various ways in which conflict ends and various ways of obtaining and maintaining power shapes the political advantages of those who come to power which in return determines how much justice is served.

13 2.1.3 International Support and Pressure The third sphere of literature focuses on international pressure that partly affects the state’s perusal of justice. Subotić (2009) argues that international actors can induce state compliance by “offering” both carrots and sticks. The carrots are in the form of material rewards such as membership in international organizations and/or foreign aid and investment while sticks are in the form of withholding aid and imposing sanctions (Ibid). However, Subotić (2009) adds that international pressure interplays with domestic politics which affect the degree of compliance with various justice mechanisms. Subotić (2009) elaborates that political elites weigh domestic costs of compliance with justice mechanisms and comply with some international requirements while ignoring others based on its ability to derive domestic benefits. For example, the Sudanese government arrested two senior officials that were indicted by the ICC to defer from arresting then-President Omar Hassan Ahmad al-Bashir (Ibid). The arrests followed with an announcement that they will be holding domestic war-crimes trials for those two who were arrested (Ibid). This move was seen more as a political stunt to improve its international image while controlling the process by conducting trials domestically (Ibid). Based on the observation of Kenya and its compliance to international pressure, Mueller (2014) finds that state actors and alleged perpetrators decreased their cooperation and even took measures to defy international justice institutions when the political risk of compliance increased. On the other hand, Subotić (2009) finds that the domestic actors are likely to agree to some form of justice if it eliminates political opponents.

2.1.4 “Politics of the Present” The fourth sphere of literature focuses on the “politics of present” which argues that issues of accountability of the past continue to exist beyond the transition period (Welsh 1996). Welsh (1996), Szczerbiak (2003) and Kiss (2006) agree that the necessity to deal with past does not just disappear with the time rather it can become even more salient and politicized over time depending on the strategic interests of key political actors (cited in Elbasani & Lipinski 2011). For example, the Polish politics was polarized along the line of 'communist forgiving'-'communist purging' axis and aggressive campaigns and sharp anti-communist rhetoric were often deployed to undermine the opponents (Szczerbiak 2002). Nuzov (2014) makes similar observations in where the soviet past and alleged crimes committed during that period was used to discredit the opposition (Nuzov 2014). As a result, the past and need to address it becomes a recurring issue in the political power struggle where the past becomes exploited by some to undermine their opponents (Welsh 1996).

14 The existing literature has its shortcomings. For example, the relative power argument directly/indirectly assumes that power is static after the transition type decides “winners” and “losers” of conflict, but in reality, political elites continuously face the challenge to maintain their political positions and influence (Grodsky 2008). Besides, there are many instances when authoritarian leaders who were forced out of power were able to maintain varying degrees of influence over the military and political process in a post-conflict period (Peskin & Boduszyn´ski 2003). Similarly, even in presences of amnesties where criminal prosecution holds little chance, there are examples where new elites have annulled the decisions of predecessors (Grodsky 2008). Moreover, the majority of the literature (example, Welsh 1995; Kiss 2006; Subotić 2009; Grodsky 2009; and Nuzov 2014) has been guided by the study of Balkan countries and post-communist countries, questioning its ability to explain justice in other types of conflicts. Subotić (2009) likewise points out that transitional justice literature is overwhelmingly focused on a single case study, thus limited in its generalizability. Furthermore, the literature has limited leverage in predicting when the politicization of justice is more likely, let alone predicting the likelihood of arrests of former wartime leaders in post- conflict countries. To fill the gap in our understanding of when arrests of former wartime leaders are more likely, I introduce theories on elections and electoral manipulation in the following section. The section on electoral manipulation focuses on how elections lead to uncertainty which brings the need to eliminate political opponents while at the same time offers a platform to convey domination of incumbents, thereby consolidating power. Thereafter, I present my theoretical argument on how arrests of former wartime leaders can be considered as one of the viable tools of electoral manipulation, consequently making arrests more likely during the election period.

2.2 Elections and Electoral Manipulation

2.2.1 Defining Elections Adopting from Hyde & Marinov (2019) codebook, elections in this study refers to general elections at a national level for “a national executive figure, such as a president, or for a national legislative body, such as a parliament, legislature, constituent assembly” (2). The person(s) contesting for the mentioned positions must be directly voted by the people (Ibid). This study includes national elections for both executive figures and legislative bodies because both have great costs and benefits associated with it. For example, the election for executive figures by

15 name highlights the importance of the election, i.e. electing the highest position of a country. Similarly, elections for legislative bodies encompass different stakes associated with different governmental bodies and institutions (Simpser 2013). For example, the plurality of seats in legislative elections ensures the privilege of forming the government (Ibid). Sometimes parties can unilaterally amend the constitution in case of an absolute majority or two-thirds majority of the seats in a legislative body (Ibid). Overall, elections in this study constitute national elections for national executive figures, or national legislative bodies voted directly by the people. These elections do not have to be free and fair, rather the existence of electoral politics is considered sufficient for this study which is further addressed in the research design.

2.2.2 Election in Post-Conflict Countries In the last two-decade, democratization has become a prescribed post-conflict rebuilding mechanism (Themnér 2017). While ample argument can be made about the quality of democracy that follows as a part of a rebuilding mechanism in post-conflict countries, elections have become a common phenomenon even in “pseudodemocracies,” “virtual democracies,” and “competitive authoritarian” regimes (Levitsky & Way 2002; Magaloni 2010; Hyde & Marinov 2012; and van Ham & Lindberg 2015). In other words, elections have become a common feature in the majority of regime types that act as a formal requirement to gain and/or retain power (Birch 2011). This establishes that we are likely to see elections in post-conflict countries although it might be less frequent and less free and fair in some countries than others.

2.2.3 Defining Electoral Manipulation The process of influencing the electoral process is known as electoral manipulation which is prevalent in many political systems and can take many forms (Lehoucq 2003; van Ham & Lindberg 2015). The manipulation of electoral institutions relies on legal tactics where incumbent governments alter electoral rules in their favor; the renowned example is gerrymandering where electoral boundaries are delineated to increase the likelihood of a favorable outcome (Birch 2011). Other common manipulation strategies involve an arbitrary denial of candidates or party registration/nomination, removal from contestation on arbitrary reasons, and vote-buying (Ibid). Sometimes incumbents can go to the extent of spying, threatening, harassing, and arresting opposition politicians as well as other government critics (Levitsky &Way 2002). In the past, opposition members have also been jailed, exiled, and in some cases assaulted or murdered (Ibid). Birch (2011) points out that there are few forms of

16 electoral manipulation that non-incumbent political candidates or parties undertake though most evidence shows the majority of electoral manipulation or violation is committed by an incumbent government. Following that majority of electoral manipulation is carried out by an incumbent government, this paper is limited to exploring theories on electoral manipulation concerning incumbents.

2.2.4 Electoral Manipulation: Explaining behavior and Strategies of Incumbents Elections bring a risk of losing the power which leads to the necessity of eliminating political opponents while at the same time elections offer the opportunity to convey the dominance for power consolidation. First, the necessity of holding elections comes with the uncertainty of who will become “losers” and who will become “winners” (Birch 2011). The uncertainty translates into a threat of losing the dominant position for incumbents (Hafner- Burton et al. 2014). The possibility of losing power is riskier in post-conflict countries because political control often becomes only means to access and ensure political, economic, and social benefits and in some instances, only means of physical security as losing elections can invite dire consequences, such as harassment, exile and even execution (Höglund 2008 cited in Themnér 2017). The high stakes associated with election prompts incumbents to influence the electoral process (Davenport 1997; Höglund 2009; Hafner-Burton et al. 2014). There is even a common conviction that political players are always ready to alter the rules to secure its benefits (Kaminski 2002). van Ham & Lindberg (2015) argue that incumbents seek to influence election outcomes by intimidating opposition candidates/parties and voters to an extent that it sufficiently reduces competition in favor of incumbents. The political opposition is likely to boycott the election when faced with harassment, such as imprisonment and torture of opposition candidates (Hafner-Burton et al. 2018). The withdrawal of opposition parties before the election significantly increases the probability of the incumbent government winning the election (Hafner-Burton et al. 2014). It also creates a bias in the voter turnout in favor of incumbents as it coerces opposition supporters either to boycott voting altogether or intimidates them into voting for the incumbent government (Hafner-Burton et al. 2018). In addition to causing opposition boycott and biasing voters, electoral manipulation is deployed to convey the domination of incumbents, thereby influencing the decision and behavior of social and political actors. Simpser (2013) highlights that elections, alongside providing the platform for power contests, offer an opportunity to transmit or distort information about the incumbent’s resources, institutional dominance, and organizational capacity. By signaling their power through electoral manipulation, incumbents can influence

17 the behaviors and decisions of key political and social actors in favor of incumbents and against oppositions (Greenstein & Harvey 2017). For example, when incumbents show the capability to maintain their power through different means, donors who might have originally planned on financing opposition party/candidates or were indecisive on whom to support are likely to choose incumbents over oppositions (Simpser 2013). The showcase of strength and dominance of incumbents is also likely to prevent possible elite splits, attract ambitious politicians, and ensure compliant behavior from bureaucrats, voters, and other socio-political actors (Greenstein &Harvey 2017). Although incumbents would prefer to maintain and consolidate power, they face a trade- off between electoral success and domestic and international legitimacy when deploying electoral manipulation tools (Birch 2011). The loss of domestic legitimacy affects the ability of leaders to rule without coercive means (Ibid). There are instances where the loss of domestic legitimacy due to alleged electoral manipulations have led to large-scale protests and attempted coups d’état or violent rebellions (van Ham & Lindberg 2015). It has also become harder to gain international legitimacy through a poor-quality electoral process as, in the last two-decade, electoral integrity has gotten momentum (Birch 2011). Hafner-Burton et al. (2014) add that the presence of institutional constraints that seek accountability of the government decisions and actions affects the incumbent’s choice of deploying election violence. Therefore, leaders seek to adopt electoral strategies that would both retain and consolidate power by maintaining an acceptable level of legitimacy (Birch 2011).

2.2.5 Electoral Manipulation Timing When studying election violence, a type of electoral manipulation tool, Höglund (2009) points out that election violence is often clustered around election times: (1) the pre-election period, (2) election day/s, and (3) the immediate post-election period. According to Höglund (2009), “a number of events and shifts focus from the day-to-day politics to elections” can mark the initiation of a pre-election phase (416). Such events are usually the start of voters or party registration or the start of a campaign period (Ibid). However, different countries vary when it comes to the span of pre-election as some countries might take a longer period even for voter registration due to lack of basic documentation and popular census (Ibid). Regarding the post-election period, Höglund (2009) defines it as “the period leading up to the inauguration of the newly elected body,” and during this period violence can take place during vote counting, analyzing results and even continue after result announcement when losing parties are reluctant to accept the result (416). She mentions that “The incumbent

18 government that does not want to leave its position of power may clamp down hard on the opposition” (419). Elklit & Reynolds (2005) and Norris (2014) also agree that electoral manipulation starts as early as from the pre-election legal framework to party/candidate registration and campaigning, to the voting day, and continues to vote counting and the formal announcement of results in the post-election period (cited in van Ham & Lindberg 2015). However, regarding election violence, Höglund (2009) observes that it varies in its form and intensity during different periods clustered around the election. Other electoral manipulation tools could suffer from similar faith depending on situations, like the presence of international election observers, which is beyond the scope of this study.

2.3 Main Argument of this Study To recapitulate, incumbents generally manipulate elections as a strategy to maintain and consolidate power. Since previous research more or less agrees that domestic actors can politicize transitional justice mechanisms to eliminate political opponents among pursuing other private agendas, I anticipate that arrests of former wartime leaders follow a similar pattern as other tools of electoral manipulation in this regard. As other tools of manipulation suffer from legitimacy issues and other costs, my assumption is that incumbents would still like to continue manipulating elections to retain and consolidate power, but they will also opt for arrests in the guise of transitional justice to minimize costs associated with electoral manipulation and, at the same time, fulfill the goal of eliminating oppositions and consolidating power. The arrests of former wartime leaders in post-conflict countries is a viable electoral manipulation tool for incumbents because it provides an opportunity to target the top leadership of opposition (e.g. Nouwen & Werner 2010), help downgrade the image of opposition while elevating its image as a moral authority (e.g. Nouwen & Werner 2010), adds credibility to the elimination of political opponents (e.g. Kirchheimer (1961), and provides a disguise for other transgressions (e.g. Oko 2003; Loyle & Davenport 2016). While all these “qualities” make arrests of former wartime leaders a viable electoral manipulation tool, in reality, one or combination of these “qualities” could be sufficient to make an arrest. First, in post-conflict countries, an increasing number of past leaders enter the electoral arena rather than altogether quitting from the present political scene, especially with the majority of conflict ending with peace agreements (Schedler 2002). The former wartime leaders transition into a post-conflict period in different ways; some transform their armed groups into political parties, some join established political parties, and some opt for forming a completely new political organization with no ties to the formal armed group (Themnér

19 2017). They also differ in political positions they aim for as some run for the presidency and some for senator position or house of representatives, regardless of positions, they continue to function as key players in forming political alliances during national elections (Themnér 2017). But the political and influential position does not exempt them from their past (Ibid). Also, as established before, there is an expectation that at least senior officials responsible for worst atrocities should be prosecuted (Kauffman 2005). Hence, transitional justice provides a reason to target these top leadership, and as per Nouwen & Werner (2010), removal of top leadership is expected to collapse the whole group. In Liberia, for example, Charles Taylor (former president of Liberia) was regarded as the “godfather” of the National Patriotic Party (NPP) (Themnér 2017). When Taylor had to resort to exile due to alleged connection to past atrocities, NPP started weakening with its remaining key leaders striking deals with political opponents (Ibid). Even if the whole group does not collapse, Silitski (2005) argues that when the stronger opposition candidates are denied entry or disqualified from an electoral race, the victory of incumbents is almost undeniable. Second, transitional justice is becoming a fundamental universal norm to address atrocities committed during the conflict period (Nouwen &Werner 2010). Such universalism provides an opportunity to label opponents as the “enemies of mankind” (Schmitt 1996 cited in Nouwen & Werner 2010). Mamdani (2007) even adds that “war criminals” “genocidaire” have become labels “to be stuck on your worst enemy, a perverse version of the Nobel Prize, part of a rhetorical arsenal that helps you vilify your adversaries while ensuring impunity for your allies” (Ibid: 957). This logic could be followed not only to those who commit crimes but also to those who do not support the accountability of such atrocities. Nouwen & Werner (2010) claim that vilifying political opponents and its supporters emphasize actions of political elites who unlike others are willing to respect the universal norm. They even predict that the incumbents are more likely to execute ICC-issued arrest warrants when there is a greater likelihood of its suspect being recognized as the “enemies of mankind.” Third, Kirchheimer (1961) points out that the political usage of criminal prosecution does not necessarily preclude its legal character. Rather, the legal means allows using legal fiction to conceal any political motivation of prosecuting the opponent (Ibid). In other words, unlike other means to eliminate a political competition, legal means offer legitimation to eliminating opponents (Ibid); however, the legitimacy gained through this process is likely to vary based on how much the judicial system is considered independent and impartial. For example, the ICC itself has been perceived as biased towards the “West” as the crimes committed by Western countries have been considered ignored while African leaders share the

20 feeling of being scrutinized for their actions (Mills & Bloomfield 2018). Similarly, domestic judicial systems, especially in post-conflict countries, might suffer from corruption and other shortcomings. Therefore, how much justification transitional justice provides to eliminate political opponents may depend on perceived independence of domestic and international judicial institutions from national and international political struggle. Nevertheless, Posner (2005) when discussing the usage of legal means to eliminate opponents argues that when incumbents believe that political opponents have more chances to win in the election, prosecuting them remains an attractive choice regardless of questionable judicial institutions. Fourth, the issue of accountability for past crimes, which in this case is brought by the arrest of former wartime leaders, provides cover for other transgressions of the incumbent (Oko 2003). Loyle & Davenport (2016) agree that the justice mechanism can be used as a disguise to curtail civil liberties and legitimize state repression. Repression and similar activities have often been established as a means for political consolidation (Ibid). Thus, the implementation of the justice process holds the possibility to divert domestic and international attention from repressive activities which contribute to the consolidation of power (Ibid). Lastly, one can argue that political opponents can use the same rhetoric if the incumbents have ties to past atrocities. Meaning, if incumbents themselves were part of past atrocities or have alliances with former wartime leaders, there are chances that oppositions use alleged links to past crimes and lack of accountability to vilify incumbents. In such cases, I maintain that arrests will still take place so that incumbents can cut ties to such a past, especially considering that political actors turning against their allies is neither a new concept nor a new practice. For example, Mainwaring & Zoco (2007) observe that political parties seek to distance themselves from their party labels in the presence of widespread dissatisfaction with what they represent. Such activities are common during elections as those party labels become hindrances to gaining positive popularity, giving little reason to remain faithful to party labels and sometimes even the party altogether (Ibid). Even earlier in the case of Liberia, we observed that key leaders of NPP struk deals with political opponents when former President Taylor had to resort to exile due to his alleged connection to past atrocities (Themnér 2017). In Sri Lanka, it is even legal for elected parliamentarians to switch from the party that they got elected from to another party and still keep their seat (DeVotta 2014). Following such practices in the game of political struggle, we can expect that incumbents are likely to carry out arrests against the former wartime leaders even if they are allies to distance themselves from its consequences during the election period.

21 While I have established that arrests of former wartime leaders can act as an attractive electoral manipulation tool for the incumbents, there is an essential consideration to be made before hypothesizing the relationship between arrests and elections. In addition to a government/incumbent making the arrests and being the indicting actor, there is a possibility that in some arrests the indicting actors are ICC or other states. Since both ICC/other states interact with domestic politics, the inclusion of arrests made within the relevant post-conflict countries regardless of such possibility is reasonable. There is a common argument in the transitional justice literature that resonates with the ICC being only as strong as its enforcement capacity (e.g. Penrose; Zhou 2006; Neumayer 2009). Meaning, the ICC does not have a police force of its own and is tied by the issue of state sovereignty; therefore, it requires state cooperation for the arrest of accused persons, their extradition, and other support throughout prosecutions (Penrose 2000; Zhou 2006). This holds for other international indicting actors who are also constrained by issues of sovereignty and voluntary compliance of the relevant country (Penrose 2000). For example, the Rwandan government sometimes strategically constrained the functioning of the International Criminal Tribunal for Rwanda (ICTR) by interfering with investigations, withholding evidence, denying passports and visas to witnesses (Simmons & Danner 2010). This resulted in the ICTR mandate being restricted in its prosecution of the Rwandan Patriotic Front (RPF), the ruling political party, atrocities (Peskin 2005). Loyle & Davenport (2016) point out that such cases serve as the reminder that international prosecution will cease to function without government cooperation. In addition, the success of ICC is largely measured by its completed cases which makes it essential to maintain a cordial relationship with the state actors (Nouwen & Werner 2010). Therefore, the issue of sovereignty and necessity to maintain relationships with the host country government is likely to align arrests with incumbents’ private gains though it should be accepted that international indictments can bring with itself a unique power compared to domestic indictments. In sum, past literature interlinks transitional justice with domestic politics which in some cases might be used to eliminate political opponents and pursue other private agendas. Considering that incumbents also seek to manipulate elections to maintain and consolidate power, I anticipate that arrests of former wartime leaders follow a similar pattern as other tools of electoral manipulation. Since other electoral manipulation tools suffer from legitimacy issues and other costs, my assumption is incumbents would like to continue manipulating elections. Hence, they also opt for arrests in the guise of transitional justice to minimize the costs associated with electoral manipulation while securing the elimination of political

22 opponents and consolidating power. Establishing that the arrests are an attractive tool of electoral manipulation for the incumbents and considering that electoral manipulation is expected to cluster around (1) the pre-election period, (2) election day/s, and (3) the immediate post-election period, I hypothesize that:

H1: Arrests are more likely to be carried out against the former wartime leaders during the election period (pre-election period, election day, and immediate post-election period).

23 3. RESEARCH DESIGN To statistical test the hypothesis suggested in the previous chapter, this study compiles a dataset predominantly deriving from the unpublished dataset by Kreutz et al. (2019a) on arrests of former wartime leaders with some additional coding to complement the dataset and updated NELDA dataset by Hyde & Marinov (2012) on national elections. The unit of analysis is country-year, covering the period between 1989 to 2017. The chapter ends with discussions on control variables and the choice of a statistical test.

3.1 Dependent Variable: Arrests of Former Wartime Leaders The unpublished dataset by Kreutz et al. (2019a) for the project currently named “Arrested Development: The Dangerous Mix of Patronage and Justice in Post-conflict Countries” includes arrests of former wartime leaders made between the period of 1989 to 2017 in post- conflict countries. The dataset is built on conflict termination dataset by Kreutz (2010) on state- based conflicts between 1946 and 2015 to identify post-conflict cases (Kreutz et al. 2019b). The point of departure from the UCDP’s data is Kreutz et al. (2019 a) focus on conflict dyads between a government and a non-state armed group (Ibid). Hence, the Kreutz et al. (2019b) dataset includes arrests of former wartime leaders that were carried out after the conflict dyad was terminated by a victory (for either side), or a peace agreement, or a ceasefire agreement, or low activity, or actor ceasing to exist (Ibid). In cases where conflict-dyads re-erupts, arrests are not coded until the conflict terminates again (Ibid). The former wartime leaders, as mentioned in the introduction section, includes (a) political leaders of rebel groups or even without any military background, (b) “political leaders of governments, i.e. heads of state, prime ministers, members of cabinet or legislature, or senior government officials in state agencies during the conflict,” and (c) “military leaders including senior commanders, commanders, senior officers, generals, chiefs of staff of security forces or non-state armed actors (rebel groups, militias, )” (Ibid: 2). It is important to note that some sources fail to distinguish between senior/low-ranking commanders, in which case the “” term was considered enough to be coded as the arrests (Ibid). Similarly, the dataset includes arrests for any alleged crimes related to the armed conflict rather than “war crimes” defined in international law because what encompasses war crimes on itself is politicized and debatable (Ibid). Hence, the alleged crimes that the former wartime leaders are arrested for can range from war crimes, , serious violations of international humanitarian law, unlawful killings, physical violence to murder, looting, use of child , corruption and so on during the conflict period (see Kreutz et al. 2019a Dataset).

24 The following shortcomings of the data on arrests of former wartime leaders may be noted: 1. The data on arrests of former wartime leaders are collected mainly from news media, NGOs, and other official documents. Some conflicts like the Balkan conflict have gotten more international media attention than other countries. Therefore, an unequal amount of information is available for different post-conflict countries; consequently, some countries have more arrests and some arrests had to be excluded due to lack of complete information. 2. In Bosnia and Herzegovina, arrests are present almost every year in the post-conflict period which might create bias in the statistical findings. Statistical models by controlling for Bosnia and Herzegovina is also presented to ensure the robustness of the findings. Overall, in the compiled dataset used for this study, the dependent variable (arrests of former wartime leaders) is coded as a binary variable where 1 is coded if the arrests take place and 0 if no arrests. The arrests that were made outside the country were omitted because the theory is limited to explaining the arrests over which incumbents of the relevant post-conflict country have authority. Only exceptions are an arrest in 1993 coded for that took place in Palestinian area and four arrests coded for Indonesia between 1992 and 1997 that took place in East Timor. The arrest in the Palestinian area is included because it was made by Israeli authority (Middle Eastern Journal 1993), and also the indicting actor is Israel itself ( see Kreutz et al. 2019a). Similarly, arrests in East Timor are included because the Indonesian soldiers left the territory only in 1999 (UCDP (c). Moreover, Indonesia was the indicting actor for all those arrests (see Kreutz et al. 2019a). Thus, it can be argued that Indonesia had a strong influence and authority over those arrests compared to other excluded arrests made outside of the country. Considering that Indonesian authority in East Timor could have declined after 1999, another arrest made in 2000 in East Timor was consciously excluded. Similarly, an arrest made in Georgia was excluded because it was made in Abkhazia. Abkhazia is a self-proclaimed independent state, and UCDP (b) maintains the Georgia-Abkhazia conflict as a “frozen” conflict since the tension between them remains intact despite low to no battle death over the years. In addition, the arrest was made by Abkhazia security forces and even the indicting actor is Abkhazia itself (see Kreutz et al. 2019b). This study also excludes arrests made by peacekeeping forces even if it was carried out within the country; hence, 27 arrests (including surrender to North Atlantic Treaty Organization (NATO) and another to International Criminal Tribunal for the former Yugoslavia (ICTY) office in Bosnia and Herzegovina) made by peacekeeping forces in Bosnia and Herzegovina, 1 in Liberia, and 2 in the Central African ) are excluded. Likewise, the surrender cases where those who were indicted by ICTY voluntarily flew themselves to the Hague were excluded from the dataset. Regarding arrests in

25 post-conflict countries in general, possible arrests that are unclear due to key missing information; for example, lack clarity in whether they were arrested for crimes committed during the conflict or post-conflict period were omitted.

3.2 Independent Variable: Elections The data for elections (independent variable) is drawn from the National Elections across Democracy and Autocracy (NELDA) Version 5 dataset by Hyde & Marinov (2012). The Version 5 dataset includes elections held for executive positions, and/or legislative positions and/or for Constituent Assembly at a national level from 1945 to 2015 (Hyde & Mirnov 2019). Voters must directly be electing the person/s for the respective national level position to be coded as an election (Ibid). While the original dataset treats presidential, legislative, and constituent assembly elections as separate observations even if it occurs on the same day (Ibid), this study uses a collapsed version that treats them as combined observations based on the year they take place. Similarly, the dataset provides information only until 2015; therefore, missing values of elections are added for the years 2016 and 2017 from the International Institute for Democracy and Electoral Assistance (International IDEA), an intergovernmental organization. The shortcoming of using election data, in general, is that it does not capture the competitiveness and other ostensible flaws of those elections (Hyde and Marinov 2019). The shortcoming is managed to some extent by controlling for the level of democracy which is discussed later. It is also important to recall the hypothesis which states that arrests are more likely to be carried out against the former wartime leaders during the election period (pre-election period, election day, and immediate post-election period). As mentioned previously, various events, such as voters and/or political parties’ registration can mark the initiation of a pre-election period and different countries vary in its longevity (Höglund 2009). Similarly, the immediate post-election period can be marked as a period after an election and before the inauguration of a newly/reelected body (Ibid). Since different countries have varying time spam concerning pre and immediate post-election periods, the election year is code as 1 and other non-election years as 0. By coding election years as the binary variable and having a unit of analysis as country- year, it invites the problem of some arrests taking place after the immediate post-election period in the given election year. To ensure the robustness of the study and avoid falsely accepting the hypothesis, an analysis by omitting the arrests that took place after the immediate post- election period is also included. Such arrests are omitted by tallying arrest dates with election

26 dates and inauguration dates of a newly/reelected executive or legislative body for all the relevant observations where arrests and elections are in the same year, available in Annex III. The inauguration dates are compiled mainly from Inter-Parliamentary Union (IPU) election archives and others from different books. Rather than only providing findings by omitting the arrests that took place after the inauguration period in the given election year, I have included both findings because the election year might be a unique event that makes arrests of former wartime leaders more likely, hence opening a path for future research (explored in next chapter). In other words, there has not been any quantitative study to explain the systematic variation in the arrests of former wartime leaders, so election years might offer unique insight and open a gateway for future exploration, alongside testing relevant past theories. On the other hand, there is a probability that some elections take place at the beginning of the year due to which the effect of a pre- election period on the dependent variable may not be captured. Therefore, I also include a model after re-coding the election variable by assigning 1 value to all the election year and a year before the election, and 0 otherwise. Lastly, in this compiled dataset, the post-conflict period starts from the conflict termination year. The Kreutz et al. (2019a) dataset does not code for the arrests that happened before the exact conflict termination date (year/month/day), so arrests that took place before that date are automatically excluded. There is also a likelihood that some elections take place in the same year as conflict termination year, so elections that concluded month/s before the exact conflict termination date as provided by Kreutz et al. (2019a) are excluded from the study. For example, if the conflict has terminated in 1991/2/15, but the election took place in 1991/1/23 then those elections are excluded. Whereas, elections that take place after the exact conflict termination dates are included.

3.3 Control Variables: Stability, Relative Power, International Support and Pressure, and Democracy Other variables likely affect the possible relationship between arrests and elections. Based on the past literature, the control variables identified are stability, the relative power of new and old elites, international support, and pressure with the addition of a democracy variable. First, as discussed in the earlier chapter, there exists the issue of stability vs. justice as seeking justice, especially during the fragile transitional period can make conflict parties withdraw their commitment to peace which raises the possibility of reigniting a conflict (Nagy 2008). This could mean that the violent past would be addressed only when the transitional period passes

27 or the “stability” is achieved in the post-conflict period. To control this effect, I code stability as a count variable where the conflict termination year is counted as 0 and years after that as 1, 2, 3, and so on. If another conflict-dyad is active during that period, it is coded as 0. Second, the previous literature suggests the relative power of old and new elites determined by (a) types of political transition and (b) types of state structure following a conflict affects how much justice takes place in the post-conflict period. The political transition theory expects justice to be more likely when a past government is completely overthrown and least likely when a transition is brought through agreements (Huntington 1991 cited in Grodsky 2008). Similarly, the state structure theory expects minimum or no justice when old elites remain influential in the post-conflict period (Grodsky 2008; Smith 2012). Since the type of political transition can also have a significant effect on state structure in the post-conflict period (Subotić 2009; Smith 2012), the possible effect of both political transition and state structure is controlled through the type of conflict termination. For this, I rely on Kreutz (2010) conflict termination dataset. When the conflict ends with a victory (either for rebels or government) it is coded as 1 and if the conflict ends with Peace agreement/Ceasefire /Low activity/Actor ceases to exist it is coded as 0. Even government victory is coded as 1 because there are fewer chances of having a bidding agreement to defer from arrests, unlike those conflicts that end with peace agreements. In cases where conflict ended in diverse ways due to the presence of different conflict dyads, it is coded as 1 when at least one of the dyads ended in either government victory or rebel victory. It is necessary to code it as 1 because based on theory, the arrest would still take place from the dyad which ended with a victory. Third, Subotić (2009) argues that international actors can induce state compliance to justice by “offering” both carrots and sticks in some cases. To capture the effect of international pressure or support, I account for the amount of foreign aid and the presence of peacekeeping in post-conflict countries. For foreign aid, I rely on “Net bilateral aid flows from DAC donors (current US$)” derived from the World Bank data from 1960 to 2018. The Development Assistance Committee (DAC) was established in 1960 and consists of 30 member countries, like the (U.S.), , France among others (The Organisation for Economic Co-operation and Development (OECD). When examining the impact of aid on democratic outcomes, Zürcher et al. (2013) argue that aid donors that influence the timing and terms of aids are more important than the aid itself. In a similar manner, DAC aid captures certain aid donors that can arguably be considered powerful and influential countries. Since almost all countries throughout different years have gotten DAC aid (see the Word Bank dataset), so the aid is taken as a net amount (current US$).

28 Regarding peacekeeping, Berdal & Ucko (2015) point out that peacekeeping heavily relies on funding and resources from the powerful member states. Such dependence, in many instances, translates into powerful countries determining the size and cost of a mission (Fortna 2008). If this is true then inferences can be drawn that international attention or pressure can be observed through peacekeeping to some extent, especially through the cost and size of peacekeeping forces. To control for this effect, I rely on Bara & Hultman's (2020) global peacekeeping dataset from 1993 and 2016. I include the total number of uniformed peacekeeping personnel (police, observers, and troops) on a yearly basis which Bara & Hultman's (2020) dataset primarily derives from Stockholm International Peace Research Institute (2017). The total number of uniformed peacekeeping personnel for the United Nations (UN) and Regional Organization (RO) are included separately to capture their individual effect on the dependent variable. Since the peacekeeping dataset starts from 1993 compared to this study which starts from 1989, the missing values are likely to affect the results. Lastly, I control for the level of democracy in the country for the given year to address the shortcoming of using elections in general as it does not account for the competitiveness of the elections and its other shortcomings (Hyde & Mirnov 2019). In addition, transitional justice is often interlinked to democratic values (Oko 2003; Nuzov 2014), so the arrest of former wartime leaders would become more likely as a post-conflict country achieves higher democracy scores. I control for this effect by using the Freedom House (2020) dataset from 1973 to 2020. The Freedom House data divides countries as Free, Partially Free, and Not Free based on civil liberties (CL) and political rights (PL), measured on the scale of 1 to 10.6 The political right aspect of the dataset captures the ability of people to freely take part in the political process, such as being able to freely vote for distinct alternatives in legitimate elections (Freedom House 2018 cited in Coppedge et al. 2020). Similarly, civil Liberties capture the freedom of expression and belief, rule of law, organizational and associational rights, and personal autonomy (Freedom House 2018, and Teorell et al. 2018 cited in Coppedge et al. 2020). The ability of the Freedom House dataset to account for whether the regular elections are relatively free among other aspects of democracy justifies the use of this dataset. The democracy status of the country is coded as a binary variable where Free is coded as 1 and Partially Free and Not Free as 0.

6 “Until 2003, countries and territories whose combined average ratings for PR and CL fell between 1.0 and 2.5 were designated Free; between 3.0 and 5.5 Partly Free, and between 5.5 and 7.0 Not Free. Beginning with the ratings for 2003, countries whose combined average ratings fall between 3.0 and 5.0 are Partly Free, and those between 5.5 and 7.0 are Not Free” (Freedom House 2020 Dataset).

29 3.4 Statistical Model Since both the dependent and independent variables are binary variables, this study uses the logit regression model. The linear probability model (LPM) could be inappropriate in this scenario because it will cause the linear line to go below 0 and above 1 which cannot be explained by the model, making it meaningless (see Kellstedt & Whitten 2009). It also violates the assumption of homoscedasticity (equal error variance) as the values of a binary dependent variable are not equally distributed, causing overestimated or underestimate standard errors (Ibid). The overestimated or underestimated standard error severely affects hypothesis testing and the implication drawn about the observed relationship between the dependent and independent variables (Ibid). The logit regression addresses this problem through natural logarithm function and allows to model a nonlinear association when the dependent variable is a binary variable (Ibid). Overall, the quantitative focus of this study increases generalizability across the post- conflict countries on its examination of systematic variations of arrests of former wartime leaders. The tradeoff when choosing statistical analysis is its failure to trace the causal mechanism, so the statistical findings are discussed in the light of evidence from post-conflict Nepal and Sri Lanka to curtail the tradeoff to some extent.

30 4. ANALYSIS This chapter examines to what extent the hypothesis arrests are more likely to be carried out against the former wartime leaders during the election period (pre-election period, election day, and immediate post-election period) holds. It first presents data description and chi- squared (χ2) test for tabular association, followed by statistical tests where initially a positive association between arrests of the former wartime leaders and election years is observed, all else equal. However, the positive association between arrests and the hypothesized election period does not hold when excluding the arrests carried out after the immediate post-election period in the given election years, all else equal. The discussion on the main findings includes evidence from Nepal and Sri Lanka, followed by a discussion on additional observations. In the final section, an alternative explanation and limitations and potential bias of the study are provided.

4.1 Description of Data An overview of the distribution of the arrests of former wartime leaders and elections across post-conflict countries from 1989 to 2017 can be observed in Figure 1 and Figure 2, respectively. There are 64 post-conflict countries and 1412 country-year or observations within the given time frame. Out of 64 post-conflict countries, 27 of them have one or more arrests while all but Somalia and have no elections. The arrests only constitute approximately 6% of the total number of country-years observations.7 In figure 1, variations in arrests of former wartime leaders in post-conflict countries are observable; for example, some arrests are immediately after the conflict termination (e.g. and ) but it is limited to a year. Similarly, there is a huge gap between the start of arrests and conflict termination year in some countries (e.g. Guatemala and El Salvador). Whereas, some arrests are scattered around different years (e.g. Guatemala, Sri Lanka, Cambodia, , Serbia). Overall, these observations reinforce the importance of studying variations in arrests of wartime leaders. Elections constitute approximately 26% of the country-year observations, excluding two missing observations.8 Based on Figure 2, most of the country seems to have national elections regularly though whether they are free and fair remains questionable. The contrast in the percentage of arrests (about 6%) and percentage of election (about 27%) is likely to affect the relationship observed between arrests of former wartime leaders and elections.

7 Refer to the cross table in Figure 3 for a better overview of the distribution of arrests. 8 Refer to the cross table in figure 3 for a better overview of the distribution of elections.

31

Figure 1:Distribution of Arrests in Post-Conflict Countries, 1989-2017.

32

Figure 2: Distribution of Elections in Post-Conflict Countries, 1989-2017.

33 4.2 Findings

To provide a better overview of the data distribution, a chi-squared (χ2) test for the tabular association is presented in Figure 3 The (χ2) value is crucial to examine the probability of observing a relationship between an independent and dependent variable because of a random chance (Powner 2015). The observed frequencies in the cross table show that 9.1% of arrests correspond to the presence of election compared to 4.6% of arrests that correspond to no elections. Similarly, Pearson’s Chi-Squared test p-value is 0.001591719 which is not only less than conventionally accepted p-standard of statistical signification, i.e. p < 0.05 (see Kellstedt & Whitten 2009), but also < 0.01. Meaning, the relationship observed between arrests and election because of random chances is limited to 1%. Although the result is supportive of the hypothesis, it fails to control for other variables that make the association between a dependent variable (arrests) and an independent variable (elections) spurious (see Kellstedt & Whitten 2009).

Figure 3: Chi-squared Test for Tabular Association

34 As highlighted in previous chapters, several other confounding factors would affect the likelihood of arrests. The identified confounders are stability, the relative power of outgoing and incoming elites (measured by conflict termination type), international pressure or support (measured through DAC aid, UN and RO peacekeeping), and democracy status of post-conflict countries. In addition, the consecutive arrests in Bosnia and Herzegovina throughout the post- conflict period, observable in Figure 1, might affect the robustness of the findings. Kellstedt & Whitten (2009) point out that the previous “memory” of certain independent variables can have a lingering effect on a dependent variable. In the same manner, the past events of DAC aid, UN peacekeeping troops, and RO peacekeeping troops might have an effect on arrests in the following years. The failure to account for the effect of past on current relationships leads to omitted variable bias which, according to Kellstedt and Whitten (2009), is one of the serious mistakes that a social scientist can commit. Therefore, the model in Table 1 accounts for a lagged value of DAC Aid, UN peacekeeping troops, and RO peacekeeping troops from one year before the current year (t-1).9 In Table 1, we observe a positive relationship between arrests of former wartime leaders and election years, meaning the presence of election years is associated with a higher likelihood of arrests, all else equal, and the relationship is statistically significant at 99%. The predictive probability of the model in Table 2 is 67.2%10 which means the model is right only 67.2.% times to predict an arrest when there is an election, all else equal. The predictive probability of 67.2% is closer to 50% than being closer to 100% to true positives, so it can be argued that the observed prediction of 67.2% is not a good prediction. Similarly, we do not observe any relationship between any control variables and arrests in Table 2, all else equal.

9 The variables are lagged only for a year because their values are already accounted for a year rather than a monthly basis which could result in the overestimation of their impact on arrests. In addition, including several lags of independent variables can induce multicollinearity which is associated with large standard errors that can have adverse consequences on hypothesis testing (see Kellstedt & Whitten 2009).

10 The predictive probability was calculated through the ROCR package in R-software by splitting the dataset into a training set (80% of data) and test set (20% of data) by following the general rule of thumb. In the dataset of this study, the year 2012 falls in the third quarter of the dataset, so the training dataset included data for years less than or equal to 2012 and the test dataset included data for the years greater than 2012. ROCR package: (ROCR package: Sing T. et al., “ROCR: visualizing classifier performance in R.” _Bioinformatics_ 21 (20): 7881).

35 Result

Dependent variable:

Arrests

Election 0.882*** (0.308)

ConflictTermination_Type -0.266 (0.318)

Bosnia 5.624*** (0.900)

Democracy_Status 0.444 (0.353)

Stability 0.017 (0.021)

LagAID 0.000 (0.000)

LagUN -0.00003 (0.0001)

LagRO 0.00000 (0.00003)

Constant -3.542*** (0.344)

Observations 1,050 Log Likelihood -182.251 Akaike Inf. Crit. 382.503

Note: *p<0.1; **p<0.05; ***p<0.01

Table 1: Logit Estimates on the Likelihood of Arrests in Post-conflict Countries, 1989-2017.

36 Before even partly accepting the hypothesis and drawing implications, it is important to readdress the possibility of some arrests taking place after the immediate post-election period. In other words, since the unit of analysis is a country-year, the above findings do not account whether the arrests took place within the hypothesized election period or after the inauguration of newly/reelected executive or legislative/representative body in the given election year. This can lead to falsely accepting the hypothesis, so in the hindsight, the research should have accounted for monthly observations though given the time constraint it could have been difficult to gather data on pre-election periods for each election year of all post-conflict countries. To address the problem, I have cross-checked the arrests that took place in the same year as the election year. There are seven observations (the 1991 election in , 2000, 2007 and 2010 elections in Croatia, the 2008 election in North Macedonia, the 2006 election in Bosnia and Herzegovina, and the 2010 election in the Philippines) where one or more arrests took place after the inauguration date in the given election year.11 An overview of the arrests of former wartime leaders coinciding with elections from 1989 to 2017 in post-conflict countries is provided in Annex III. The overview shows interesting patterns relating to arrests that took place in the election/s year. For example, there are no arrests on the election day and only one arrest (in Peru) in the immediate post-election period, raising questions about whether the electoral manipulation is usually limited to the pre-election period. One can also observe how much gap is usually between arrests and election day; such as, few arrests are on the same month as the election month while most arrests have around 1 to 6 months gap from the election month. The largest gap between arrests and elections is a nine months gap in Serbia’s 2003 election and Bosnia and Herzegovina’s 2010 election. Such large gaps questions whether these arrests were actually related to the upcoming election. All else equal, the Model 1, Table 2, does not find any association between arrests and the hypothesized election period when omitting the arrests that were carried out after the inauguration period. On the other hand, as pointed out in the research design, there is also a possibility that some elections take place at the beginning of the year due to which the effect of the pre-election period on the arrests may not be captured. In addition, countries differ in the longevity of the pre-election period, for example, Cambodia took almost a year only for voter registration

11 There are also two arrests, one coinciding with the 2002 election in North Macedonia and another with the 2006 election in Colombia, which took place after the inauguration date compared to other arrests in the same year. Since the arrest variable is coded as a binary variable, the values for that year remain 1 when rerunning the analysis.

37 during its 1993 election (Höglund 2009). To capture the missing effect, the election variable was re-coded where all the election year and a year before that are coded as 1 and other non- elections years as 0, alongside excluding the arrests that took place after the hypothesized election period in the given election year. Based on those changes, we observe a positive relationship between arrests and elections. Meaning the presence of elections is associated with a higher likelihood of arrests in Model 2, Table 1, all else equal. The relationship is statistically significant at a 90% confidence level. The predictive probability of Model 2, Table 3, is 66.2%12 which means the model is right only 66.2.% times to predict an arrest during the hypothesized election period, all else equal. Alike to previous predictive probability, 66.2% is closer to 50% than being closer to 100% to true positives, so the observed prediction can again be argued as not a good prediction. Moreover, extending the pre-election period by one year for all the election years increases the chances that the arrests in the pre-election period are more of a coincidence. Therefore, reliable data on pre-election periods of all post-conflict countries are required to make any fruitful implications. Overall, the findings in Model 1, Table 2, greatly question the explanatory power and relevance of the theory.

12 The predictive probability was calculated through the ROCR package in R-software, similar to earlier predictive probability. (ROCR package: Sing T. et al., “ROCR: visualizing classifier performance in R.” _Bioinformatics_ 21 (20): 7881)

38 Results

Dependent variable:

Arrests Model 1 Model 2

Election 0.514 (0.331)

Election_Including_Year_Before 0.537* (0.325)

ConflictTermination_Type -0.162 -0.145 (0.334) (0.334)

Bosnia 4.978*** 4.962*** (0.767) (0.767)

Democracy_Status 0.271 0.269 (0.388) (0.388)

Stability 0.019 0.021 (0.021) (0.021)

LagAID 0.000 0.000 (0.000) (0.000)

LagUN -0.00002 -0.00002 (0.0001) (0.0001)

LagRO 0.00001 0.00001 (0.00003) (0.00003)

Constant -3.558*** -3.702*** (0.353) (0.392)

Observations 1,050 1,050 Log Likelihood -172.237 -171.998 Akaike Inf. Crit. 362.474 361.996

Note: *p<0.1; **p<0.05; ***p<0.01

Table 2:: Logit Estimates on the Likelihood of Arrests in Post-conflict Countries after Omitting the Arrests Carried out after the Immediate Post-election Period, 1989-2017.

39 4.3 Discussion After omitting the arrests carried out post-immediate election period, the relationship between arrests of former wartime leaders and hypothesized election period does not hold, all else equal. Does this mean the relationship suggested between arrests and elections should be disregarded? Does this mean the alleged link to past crimes or having allies linked to past crimes are rarely exploited in the post-conflict political space? Are the alleged links to past crimes forgotten after certain years have passed post-conflict contrary to what the “politics of presents” literature suggested? As mentioned previously, Welsh (1996), Szczerbiak (2003), Kiss (2006) agree that issues of accountability persist beyond the transition period and it becomes even more salient and politicized over time depending on the interests of key political actors. Welsh (1996), Szczerbiak (2003), and Kiss (2006) argument was examined in post- communist countries where aggressive anti-communist rhetoric was used to undermine the opponents, so this questions whether the politicization of alleged link to past crimes is unique to courtiers that transited from communism and cannot be applied to post-conflict countries. Annex III, on the other hand, suggests that some former wartime leaders were indeed arrested (75 in total) within the hypothesized election period, mostly in the pre-election period. In addition, election years, in general, hold a significant relationship with arrests compared to other variables, observable in Table 1 and Annex II. Since the statistical analysis does not provide insights on the causal mechanism, the discussion on statistical findings is complemented with evidence from post-conflict Nepal and Sri Lanka. The choice of Nepal and Sri Lanka was mainly motivated by availability of information and research on relevant arrests, its ability to offer insight on the suggested casual mechanism as well as showcase the possibility of some arrests falling in the hypothesized election period out of mere coincidence. Alongside observing the presence or absence of causal mechanism concerning the relevant arrests, I have also included possible explanations for impunity enjoyed by former wartime leaders over years to examine whether no arrests or presence of impunity is explained by the absence of election or by other factors. It should be noted that Nepal and Sri Lankan case exclusively focuses on the existence of impunity and arrest/s for alleged crimes committed during the conflict period; hence, it should be not considered that the country did not undergo any other form of transitional justice mechanisms, such as the TRCs, which is beyond the scope of this study.

40 4.3.1 Discussion on Impunity and Arrests in Post-conflict Nepal The civil war in Nepal was fought between the communist group (the Communist Party of Nepal-Maoist (CPN-Maoist) and the government of Nepal (which was a monarchy) from 1996 to 2006 (International Commission of Jurists (ICJ) 2017). The war claimed 13,000 lives, caused 1,300 ‘disappearance,’ and many more were subjected to human rights violations and abuses mainly “credited” to both sides of the conflict- the Nepali and the Maoists (Ibid: 4). The conflict ended with a Comprehensive Peace Agreement (CPA) in which the concerned parties clearly stated their commitment against impunity (Sharma 2011; ICJ 2017). The CPA, 2006, art. 7.1.3. states “impartial investigation and action as per the law shall be taken against those people responsible for creating obstructions to the exercise of the rights envisaged in the Letter of Agreement, and both parties guarantee not to encourage impunity” (cited in Sharma 2011: 1-2).

Impunity and Arrests in Post-Conflict Nepal It has been more than ten years since the conflict in Nepal ended but the alleged perpetrators of crime committed during that period, both from the government and the rebel side, enjoy near-absolute impunity (ICJ 2017). Even with court judgments, including those of the Supreme Court, both sides of the conflict have refused to cooperate with investigations of any of their personnel (Ibid). ICJ (2017) even finds that “high-level suspected perpetrators have even been promoted, rewarded with lucrative postings within the United Nations, and allowed to hold high office, including in Nepal’s Legislature and Cabinet” (14). One of the main reasons behind persistent impunity for the past crimes in Nepal can be attributed to various political coalitions/alliances formed between political parties to either win the elections or ensure the majority of seats in the constituent assembly/parliament (ICJ 2017). The political coalitions not only ensure a majority in the constituent assembly/parliament, but parliament members elect the Prime Minister who then forms the government (Ibid). Hence, political agreements in the post-conflict government almost always have included the withdrawal of criminal charges against the party members (Ibid). For example, the cooperation between the Unified Communist Party of Nepal-Maoist (UCPN-Maoist), a CPN-Maoist breakaway party, and the United Democratic Madhesi Front (UDMF) in 2011 was preconditioned on withdrawal of criminal cases against Maoist cadres and individuals affiliated with UDMF movements (Ibid). The cooperation led to the formation of a government under the Prime Ministership of Baburam Bhattarai, former rebel leader and then-leading member of UCPN-Maoist (Ibid). The coalition government of Prime Minister K.P. Sharma Oli also signed

41 a nine-point deal in 2016 that included provisions for withdrawing of all wartime cases in the courts or granting amnesty to alleged perpetrators of war-related crimes (Human Rights Watch (HRW) News 2016). It is presumed that the deal was signed to retain the support of the UCPN- Maoist to continue holding the position of prime ministership and the majority in the parliament (Ibid). Just between 2008 and 2013, more than 1,055 criminal cases including war-related crimes were withdrawn under three successive governments from different political parties/coalition (ICJ 2013 cited in ICJ 2017: 24). The post-war coalitions and alliances have been very fragile in Nepal (HRW News; ICJ 2017). Nepal has had ten different governments within the 11 years of post-war as parties shifted their alliance from one party to another (ICJ 2017) though there have been only three national elections (see IDEA International). ICJ (2017) remarks that “Fragile coalitions also mean that political parties depend on the military for support, which prevents them from taking action against current or even former military officials for human rights violations” (15). In addition to changing coalition/alliance, widespread political influences over public institutions, on-going corruption, and nepotism contribute to the culture of impunity for both past and ongoing human rights violations and crimes (Ibid). Overall, the absence of arrests/presence of impunity seems to be connected to the electoral system where the directly elected constituents have the power to elect the prime minister who then has the power to form a government, hence constantly requiring political coalitions/alliances to gain and/or retain power both in presence and absence of elections (Ibid). Amid these factors, what explains the only arrest of former wartime leaders that took place in 2017 in Nepal (observable in Figure 1)? In 2017, Bal Krishna Dhungel, former Maoist local leader, a former member of UCPN- Maoist and current leader of CPN (Maoist Centre), was arrested on a charge of an execution- style murder that dates to the Maoist insurgency in Nepal (ICJ 2017; Dixit 2011). Recalling the theory, incumbents use arrests of former wartime leaders as the electoral manipulation strategy to eliminate the opponents and consolidate the power. It also pointed out that if incumbents themselves were part of past atrocities or have alliances with former wartime leaders, there are chances that oppositions use the issue of lack of accountability to vilify incumbents. In such cases, it was argued that arrests will still take place so that incumbents can cut ties to such past or allies. It was then hypothesized that the arrest of former wartime leaders is likely during the election period (i.e. pre-election period, election day, and immediate post- election period). In Nepal, three national elections (in 2008, 2013, and 2017) have taken place since the conflict ended in 2006, but only Dhungel was arrested prior to the 2017 election. This questions

42 why he was not arrested during the 2008 and 2013 election period even when he was already sentenced to life imprisonment and had an arrest warrant issued against him for almost 4 years by the 2008 election and for almost 9 years by the 2017 election (ICJ 2017). Even with additional arrest orders of the Supreme Court in 2010 and later in 2011, Dhungel was not arrested; rather he continued to maintain his seat at the Constituent Assembly which he had won during the 2008 election (Dixit 2011; Sharma 2011). With Dhungel, alike former CPN- Maoist leaders, remaining active in politics (ICJ 2017; Kharel 2017) it should have increased the chances of their alleged link to past atrocities being politicized during elections and led to at least some arrests as suggested by the theory. The possible explanation amid above factors would be because former CPN-Maoist leaders and their party were part of the incumbent government (with coalitions) during the 2008 and 2013 elections (see ICJ 20017) and oppositions might not have politicized their past, so the incumbents did not have to resort to arresting any former wartime leaders (including Dhungel). Even for the arrests in 2017, Dhungel was not immediately arrested though the Supreme Court had issued mandamus and given an ultimatum of a week for his arrest in April 2017 (ICJ 2017; HRW News 2017). Rather he was spotted giving public speeches where he condemned the court’s decision and even warned of a ‘physical attack’ against those involved in the case, including the judges, lawyers, human rights defenders, and the victim’s family (ICJ 2017). Sources at the Police Headquarters said that the police were waiting for the “right political time” to arrest Dhungel (Kharel 2017). On the condition of anonymity, an official at the police headquarters said, “The situation is not such that we could arrest a leader of the party which is leading the current government”13 (Ibid). Another police official said, “It’s not that the police are incapable of arresting Dhungel; it’s just that they don’t want to” (Ibid). Dhungel was finally arrested on October 31, 2017, a day after the Apex court issued another order for his arrest (see Kreutz et al. 2019a dataset). Since Dhungel’s case had remained in the news since April 2017 with the issuance of mandamus and ultimatum for his arrests as stated earlier (ICJ 2017), the further debate and delay in his arrests would have been considered political harmful to the incumbent government of which his party was one of the coalition partners with the election just a month away. In other words, it could have been seen as a factor that could cost them (incumbents) votes in the upcoming election. The Young Communist League (YCL), the CPN-Maoist’s youth wing,

13 The quoted sources with no page numbers are from newspaper articles.

43 claimed that Dhungel’s arrest was a conspiracy plotted to hamper the CPN-Maoist party in the upcoming parliamentary elections (OnlineKhabar 2017). YCL also warned that if Dhungel is not released, they will file cases against the leaders of other political parties, namely the Nepali Congress and Rastriya Prajatantra Party, in connection to wartime crimes (Ibid). The YCL’s remark further emphasizes a possible connection between the arrest and the upcoming election. It also showcases how the threat of justice is used to entice other political parties which would explain why the alleged crimes committed during the war were not used against each other for power consolidation contrary to the theoretical expectation, rather it was used as a bargaining chip for forming political coalitions/alliances. One would argue that the eventual arrest of Dhungel is the hope for ending impunity in Nepal, but he was granted Presidential pardon upon the recommendation from the government in 2018 (My Republica 2018). Overall, the persistent impunity in Nepal and Dhugnel’s case that was stretched over the years by disregarding the sentencing and repeated arrest orders showcases how transitional justice interplays with domestic politics, and in this case how politics constraint justice, especially when it comes to arresting a former wartime leader. Similarly, Dhungel’s arrest during the hypothesized election period follows the logic of incumbents (including his party) trying to distance themselves from the controversy surrounding his cases prior to the election; however, the controversy appears connected more to repeated court orders and human right defender and victim’s family working for Dhungel’s arrests (see ICJ 2017) rather than oppositions politicizing wartime crimes against incumbents as discussed in the theory. This questions whether the statistically significant relationship found between arrests and election years in some models earlier faces a similar problem of not truly observing the suggested causal mechanism.

4.3.2 Discussion on Impunity and Arrests in Post-conflict Sri Lanka In Sri Lanka, two different conflict dyads were active, one fought against the Janatha Vimukthi Peramuna (JVP)/ People’s Liberation Front) and one against the Liberation Tigers of Tamil Eelam (LTTE), commonly known as the Tamil Tigers) (Harding 2000; DeVotta 2016). JVP, a left-wing party formed in 1965, led two against the ruling government in 1971 and 1987 (Imtiyaz 2010). The second insurgency was mainly in response to the Indo-Sri Lanka Accord of 1987 which deployed 100,000 Indian troops to enforce peace in the north and east parts of Sri Lanka (Watkins 2005). The accord was seen as a threat to Sinhalese nationalism or Sinhala/Buddhist motherland by the JVP (Ibid). The JVP then started major assassination campaigns against government representatives, senior police, and local

44 officials throughout the country (Hill 2013). The JVP is, thus, accused of killing hundreds of political opponents and government officials (Harding 2000). The security forces from the government side are equally or even more responsible for grave crimes and human rights violations as they deployed death , terror, and torture against the JVP sympathizers (Samaranayake 1997). By the time conflict ended in 1989 with a government victory, the second insurgency alone had claimed over 60,000 lives, the majority being the Sinhala youths (BBC Sinhala 2008). The second conflict dyad, i.e. the LTTE against the Sri Lankan government, started in 1976 when the LTTE emerged mainly to defend the interest of the Tamil minority (Höglund & Orjuela 2013). In 2002, both sides agreed to a ceasefire, but the situation deteriorated steadily and the ceasefire was officially suspended in 2008 (DeVotta 2014). It was followed by a large- scale military offensive in which the security forces allegedly attacked the LTTE with overwhelming and sometime indiscriminating force (DeVotta 2016). The final stage of the conflict alone claimed between 40,000 and 70,000 lives of Tamil civilians (DeVotta 2014: 150). The state is also accused of being responsible for human rights violations, such as extrajudicial killing, arbitrary arrests, torture, and detention in northern and eastern parts of Sri Lanka (Anonymous 2011). The LTTE has no less accusations relating to human rights violations and crimes committed during the war. The LTTE, pioneering the tactic of suicide bombing, is responsible for around four hundred of such attacks between 1987 and 2008 (Stone 2014: 152). The Sri Lankan government and more than thirty countries had officially listed the LTTE as a terrorist organization (Ibid: 150). The LTTE was also infamous for abducting children for recruitments, murdering Tamil community leaders, and ethnic cleansing of Sinhalese and Muslims from the North and East of Sri Lanka among other accusations (Dharmawardhane 2013; DeVotta 2017).

Impunity and Arrests post JVP vs. The Conflict The Government of Sri Lanka: Arrests and Impunity The government and security forces enjoy impunity for their crimes and human rights violations committed during the JVP vs. government dyad (Watkins 2005). One of the reasons for impunity could be that government agents took the form of death squads with limited accountability to the government (Ibid). Besides, many military officials who were involved in the fight against the JVP became involved in the fight against the LTTE, so prosecuting the JVP insurgency-related crimes would have been seen as demoralizing the army (Harding 2000). While these factors provide some explanations about the presence of impunity and lack

45 of arrests from government/security forces side for the crimes committed during the JVP insurgency, what explains the only one arrest concerning a former wartime military commander that took place in 2000 related to this conflict dyad? In 2000, former Ananada Weerasekera was arrested for murder, abduction, and overseeing a torture chamber and illegal detention camp among other charges related to the JVP uprising in the late Eighties (Harding 2000). After the retirement from the army, former Major General Weerasekera had formed a right-wing group, named Sinhalaye Veerawidhana (Sinhala Heroes' land) (Agence France-Presse (AFP) 2000 cited in Tamil Canadian 2000). Some of the members of his groups were contesting in the upcoming parliamentary election in 2000 under the banner of Sihala Urumaya (Ibid). With the parliamentary election three months away, his arrest and trial were seen as politically motivated (Harding 2000). The argument seems plausible considering that his arrest was the first time (and possibly the last time, at least until 2017) that a high-ranking military was put on trial concerning JVP insurgency (HRW News 2000; see Kreutz et.al 2019a). His supporters claimed that the arrest was a plot to discredit former Major General Weerasekera by the “paranoid” government as his new alliance could threaten the incumbent and its power in the upcoming elections (Harding 2000). In other words, his supporters argued that the general was being singled out following his opposition to then-President and her ruling People's Alliance party (Ibid). The arrest of former Major General Weerasekera does provide some support for justice being used as an electoral manipulation strategy by the incumbents to maintain and consolidate power by eliminating political opponents and conveying its domination during the process. In the theory, it was argued that one of the reasons that make arrests of former wartime leaders an attractive electoral manipulation strategy was it provides an opportunity to target the top leadership of opposition. The theory appears to hold in this case as the arrest of former Major General Weerasekera, as reported by Harding (2000), could have been targeted to weaken the newfound alliance between his party and Sihala Urumaya. In addition, using his alleged link to past crimes would have added to the credibility of his elimination from the political space which is another factor that makes transitional justice an attractive electoral manipulation strategy. Similarly, his arrests could have also conveyed the domination of incumbents, thereby influencing the decision and behavior of other social and political actors as suggested by the theory, especially for those seeking or forming new alliances against the incumbents. However, a systematic study on factors, like whether any financial actors changed their campaign donations from oppositions to incumbents, whether new alliances were formed with

46 incumbents or if other opposition alliances broke following the arrest, are needed to credibly argue that incumbent was able to change the behavior and decisions of other social and political actors to consolidate the power.

Janatha Vimukthi Peramuna (JVP)/ People’s Liberation Front: Arrests and Impunity The JVP returned to electoral politics four years after facing military defeat in 1989 (Hill 2013). Their return to politics is partly credited to their partnership in President Chandrika Kumaratunga's People’s Alliance coalition in 1994 which ended the 17 years of the United National Party (UNP), one of the major political parties in Sri Lanka, rule (Ibid). The JVP was deeply anti-UNP and their return to politics directed public attention toward the UNP- government led-atrocities during the JVP’s second insurgency (Ibid). Hill (2013) writes “The Kumaratunga government was happy with debates and evidence to be aired that discredited the previous government” (366). Based on the theory, the government should have used justice to eliminate political opponents from the UNP and consolidate power in the next election (1999 and in 2000), especially when, as pointed out by Hill (2013), the return of JVP to politics had directed public attention to UNP-led atrocities and Kumuratunga government was in the power in both the election periods. However, during this period and until now, only one arrest of Major General Weerasekera has been carried out from high-level security forces and those in government during the conflict while none has been carried out from the JVP (see Kreutz et al. 2019a dataset). The JVP grew further in its political strength over the year, at least for a certain period of the time, by later allying with Sri Lanka Freedom Party (SLFP), one of the major parties in Sri Lanka (Imtiyaz 2010). From securing 10 parliamentary seats in 2000 to 16 in 2001, it was able to secure 38 seats in the 2004 general election (Imtiyaz 2010). Despite being active in politics, the lack of using justice to eliminate them from political space is contrary to the theory, especially if it meant weakening its ally- first People’s Alliance coalition and later SLFP. One of the main reasons behind impunity for the JVP leaders might be because, as found in (Samaranayake 1997), the government security forces had killed the majority of the JVP leaders and almost all the political and central committee members. There are chances that there was (and is) little evidence against the remaining leaders, or the remaining leaders might not have direct links to past crimes. Nevertheless, considering the political comeback of JVP and their alliance with the major parties and UNP losing its power after 17 years in government yet lack of any arrests from both the remaining JVP leadership and UNP leaders questions the validity of the theory.

47 Arrests and Impunity post-LTTE vs. The Government of Sri Lanka Conflict The Government of Sri Lanka: Arrests and Impunity Concerning LTTE vs. the government of Sri Lanka dyad, the government side seems to enjoy almost complete impunity for the crimes committed during the war. The persistent impunity can mainly be explained by a feeling of victimhood among Sinhalese-Buddhist that goes back to colonial times and ethnocentric politics that followed post-independence (e.g. Bandarage 2012; DeVotta 2014), the further exacerbation of Sinhalese-Buddhist nationalism and power centered around then-President Percy and the continued militarization of the country in the post-conflict period (e.g. Stone 2014; Höglund & Orjuela 2011). This, altogether, has contributed to security forces being revered as the war heroes and secured them from being held accountable for the crimes committed during the war. The military victory over the LTTE was followed with triumphalism and patriotism with its portrayal as the victory for Sinhalese-Buddhist nationalists (Höglund & Orjuela 2011). The root of such reaction goes back to the British colonial rule where Tamils, making only 12 percent of the population, were treated as a ‘majority community’ at the expense of the Sinhalese-Buddhist who constituted around 70 percent of the population (Bandarage 2012). After independence in 1948, Sinhalese leaders focused on ‘Sinhalesation’ as an attempt to rectify the injustice faced by the Sinhalese-Buddhist (Höglund & Orjuela 2013). Since the Sinhalese population was nearly 70 percent (currently at nearly 75 percent), the political parties would secure power by disregarding the minorities and their demands, especially if it meant upsetting the majority community that saw themselves as the victims of injustice since the ages (DeVotta 2014: 141). Besides, the Sinhalese Buddhist nationalist and majoritarian ideology claims that “Sri Lanka is the island of the Sinhalese and chosen repository of Buddhism; Sinhalese Buddhists have been ennobled to preserve and propagate Buddhism; minorities live there thanks to Sinhalese Buddhist sufferance; and they must, therefore, respect the majoritarian ethos” (DeVotta 2017: 74). The island must then be “unitary and anyone who suggests significant devolution is a separatist and a traitor” (DeVotta 2016: 155). In presence of Sinhalese-Buddhist nationalism already rooted in history and politics, Mahinda Rajapaksa, former , further intensified the nationalism post-war (Ibid). He made (and continues to make) the victory over LTTE as the rallying point to maintain the power (DeVotta 2016; DeVotta 2017). His government also built on the narrative of the security forces as war heroes that saved the country from the terrorists (Ibid). With the long history of Sinhalese-Buddhist nationalism (e.g.

48 Bandarage 2012; DeVotta 2014) and then-president Rajapaksa further intensifying nationalism and elevating the security forces to the position of war heroes (DeVotta 2016; DeVotta 2017), seeking justice against those security forces would have been seen unacceptable and unthinkable, especially when the victory represented the victory of Sinhalese-Buddhist nationalism over those “traitors” that wanted to divide the country (e.g. DeVotta 2016). In this sense, those seeking justice against the war heroes would be “traitors” themselves. The power centered around the Rajapaksa presidency and his family (Stone 2014) and further militarization of the country (Höglund & Orjuela 2011) would have equally (or even more) contributed to widespread impunity for the security forces after the victory over the LTTE. During the Rajapaksa presidency, 2005 to early 2015, President Rajapaksa and his two- brothers held different ministries and headed different government departments with another brother being the speaker of the Parliament (Stone 2014). This concentrated nearly 70 percent of the country’s budget within the Rajapaksa family and almost 130 government posts were held by the president’s relative (Ibid: 148). Altogether, the legislature became no more than a “rubber stamp” for incumbents (Ibid) and the judiciary faced ‘telephone justice,’ i.e. frequent calls were made from the president’s office or Attorney General’s office to judges who were told how to rule on particular cases (DeVotta 2014). The country also saw increasing militarization even after the war ended. Höglund & Orjuela (2011) point out that the long and brutal civil war had already created a highly militarized society and militarization increased at an unprecedented rate toward the end of the conflict. Several army officers were even appointed for the foreign services and given a prominent role in rebuilding the war-torn areas (Ibid). Given that most crimes were committed during the final years of the war under the Presidency of Rajapaksa (DeVotta 2014), holding alleged perpetrators or even accepting that they did something wrong would not only mean implicating oneself and his family members but also losing the strongest rallying point to maintain or gain power. Moreover, the concentration of power under Rajapaksa and his family (Stone 2014) and military (Höglund & Orjuela 2011) coupled with Sinhalese-Buddhist nationalism and security forces being revered as war heroes (DeVotta 2014; Devotta 2016) could have added to the ability of the government to continue with the impunity. The power accumulated by Rajapaksa and his family and military even explains the continued impunity after Rajapaksa lost his presidency in early 2015 to Pallewatte Gamaralalage Maithripala Yapa Sirisena (BBC 2015). The former President Rajapaksa, despite losing the presidential election, was able to secure a considerable number of votes in the parliamentary election (Aliff 2016). In addition, it was expected that the military would

49 continue their support to the former President Rajapaksa since many would face charges otherwise (DeVotta 2016). International Crisis Group (ICG) (2017); DeVotta (2017) even claim that President Sirisena seemed more concerned about appearing patriotic and threatening military loyalists of the former President Rajapaksa. On November 26, 2017, President Sirisena stated that he was in the process of writing to U.S. President Donald Trump with a request to free the military from war crimes accusations and end U.S. support for Human Rights Council (ICG) 2017). The presidency of Sirisena, who held the presidency until late 2019, further showcases the power of the former President Rajapaksa, military and Sinhalese nationalism, explaining the continued impunity enjoyed by security forces even when Rajapaksa lost the presidency. In presence of above factors, especially security forces being revered as war heroes (Stone 2014) and further militarization of the country (Höglund & Orjuela 2011), what explains the arrests of General Saratha Fonseka in 2010 which is the only arrests from security forces side (at least until 2017) for this dyad? General Fonseka, as army chief, had commanded the Sri Lankan Army that secured the defeat of the LTTE in 2009 (Höglund & Orjuela 2011). After retiring from the army to join the politics in November 2009, General Fonseka ran as one of the presidential candidates for the early 2010 election (Ibid). However, just after a month following the presidential election and in the middle of the upcoming parliamentary election, General Fonseka was arrested in a humiliating manner by being dragged from his office by the military (Ridge 2010). He was tried in both military and civil court and within seven months was sentenced and stripped of his rank, pension, and the parliamentary seat he won in the April 2010 parliamentary election despite being in military custody (Online Lanka 2012). It is important to note that he was not arrested for human rights violation and war crime per se rather he was arrested for charges relating to defrauding the military when he was the army chief and interfering in politics despite being in the military (though he had already retired from the army before joining the politics) (Online Lanka 2012). Recalling that Kreutz et al. (2019a) code not only internationally defined and recognized war crimes but also crimes in general that are related to the conflict and conflict dyad, General Fonseka’s arrest is discussed here. The arrest of General Fonseka was (and is) seen as politically motivated to eliminate the opposition to the president (Höglund & Orjuela 2011; Höglund & Orjuela 2013; DeVotta 2016). Even the US State Department named him political prisoner in its 2010 Human Rights report (Online Lanka 2012). International rights groups also expressed concern over his arrests and prosecution, especially criticizing “closed-door military court” (AFP 2010 cited in France

50 24 2010). The Court Martial was even appointed by President Rajapaksa as the Commander- in-Chief of the Armed Forces on recommendations of the Commander of the Army (Online Lanka 2010). Considering that one of the major rallying points for Rajapaksa had been winning the war over the LTTE under his presidency (DeVotta 2016), having a political contender who actually commanded the military that defeated the LTTE would have been seen as the biggest threat not only for the present election but also in the future elections (Reddy 2010). Moreover, General Fonseka was in the middle of planning his campaign for the upcoming general parliamentary elections in alliance with the leaders of opposition parties (Ibid), which would have further distributed parliamentary seats and, at the extreme, cost President Rajapaksa and his party the majority in the parliament. Silitski (2005), as mentioned in theory, argues that when the stronger opposition candidates are denied entry or disqualified from an electoral race, the victory of incumbents is almost undeniable. Alleging the vote was rigged during the presidential election, Fonseka had also submitted a petition to the Supreme Court (AFP 2010 cited in France 24 2010). At least 5000 supporters from the oppositions also demonstrated against President Rajapaksa in the capital for alleged rigged election (BBC 2010). Amid threat to secure a majority in the parliament, such electoral manipulation claims would have not only cost more parliamentary seats but also threatened President Rajapaksa’s already won presidency. The arrest of General Fonseka seems to provide some support for justice being used to eliminate a political opponent and consolidate power as suggested in the theory. Like former Major General Weeraskera’s arrest, General Fonseka’s arrest would have been seen as an opportunity to target the top leadership of opposition and the legal means gave the opportunity to justify the elimination of the opposition. Although General Fonseka might not have been the sole leader of the oppositions, eliminating him meant the oppositions would no longer claim credits for winning the war and also defer other former military officers from standing in opposition to the Rajapaksa government. Similarly, the crimes General Fonseka was charged with were not war crimes per se but arresting him for committing crimes when the country was fighting its “enemy,” could have been used to tarnish his war hero image. In addition, General Fonseka, shortly before his arrest, had stated his willingness to provide evidence of war crimes committed by security forces in any international war crimes probe to the reporters (Ridge 2010). He had also claimed that Gotabhaya Rajapaksa, Rajapaksa’s brother and, then-Defense Secretary, was the one who had ordered surrendering LTTE cadres to be shot (DeVotta 2014). Following such remarks, General Fonseka was extensively portrayed as a traitor by Rajapaksa (Ibid). General Fonseka’s statement on willingness to cooperate with the international tribunal

51 for war crimes could have been seen as the betrayal of Sinhalese-Buddhist nationalism coupled with Rajapaksa portraying him as a traitor (DeVotta 2014) would have further added justification to his arrest. The other factors like the government purging the senior military officers that were considered loyal to Fonseka (AFP 2010 cited in France 24 2010) and issuance of death threats to newspaper editors and journalists sympathetic to General Fonseka (DeVotta 2014 would be seen as using the opportunity to commit other transgressions under the guise of justice. Concerning General Fonseka’s arrest DeVotta (2014) writes, “The manner in which Fonseka was treated was partly designed to send a message to the country’s citizenry: if a war hero and highly regarded army commander could be treated in such humiliating fashion, then so could anyone else who tries to challenge the regime” (159). Additional documentation on the arrest leading to changes in behavior of social and political actors is required as suggested in the case of former Major General Weerasekera to further trace the causal mechanism on power consolidation. On a final and interesting note on this arrest, the newly elected government of President Sirisena in 2015 bestowed first-ever Sri Lanka’s highest of Field to General Fonseka for “achieving the victory over terrorism” at an official ceremony (Times of India 2015). President Sirisena stated that ensuring justice to the former army chief was a “responsibility undertaken by the government in our quest for the whole of the army” (Ibid). The approach of President Sirisena in contrast to Former President Rajapaksa on General Fonseka’s case adds to the credibility of earlier claims that the arrest was politically motivated. It also presents different dynamics surrounding how links to the conflict/war continue to be used for political purposes. Overall, the deep-rooted Sinhala nationalism and power centered around wartime actors partly explains the continued impunity or absence of arrests in the post- conflict period rather than the absence of election; whereas, the arrests of General Fonseka suggests that if oppositions with links to past crimes rise as stronger political contenders then there is a possibility of arrests during the election period.

52 Liberation Tigers of Tamil Eelam (LTTE): Arrests and Impunity By the time the war ended in 2009, the LTTE leadership inside Sri Lanka was either killed or captured and the military structures were either destroyed or dismantled (Höglund & Orjuela 2011). Anonymous (2011) author predicts that the state will avoid taking a strict approach in prosecuting the remaining LTTE leaders in fear of opening discussions about broader accountability issues related to the war in the country, which was also the case with the JVP dyad. DeVotta (2016) agrees that the accountability issue for crimes committed during the war would mean investigating alleged accusations against the government and military officials, especially during the last phase of the war which was highly violent. Anonymous (2011) adds that some members of the LTTE breakaway faction were aligned to the incumbent (then-president Rajapaksa) and some served in government, including as the members of parliament. Therefore, pushing for LTTE prosecution would invite discussion on crimes committed by those members of the LTTE breakaway faction (Ibid). The elimination of the majority of LTTE leadership by the end of the war (Höglund & Orjuela 2011), the fear of opening discussion on broader accountability issues by prosecuting the remaining LTTE leaders (Anonymous 2011; DeVotta 2016) and some member of LTTE faction aligning with then-incumbents (Anonymous 2011) could explain why there were no arrests until late 2014. However, as the Rajapaksa lost the presidency in early 2015, it was followed by two arrests in 2015 and one arrest in 2016. What explains these arrests? The two arrests in 2015 were before the upcoming parliamentary election; however, there is around six months gap between the arrests and the election day. This questions whether the arrests were motivated by the upcoming election or by a coincidence. The arrest of Murugesu Bairahi, former leader of the women's wing of LTTE, seems coincidental considering that she was not in the country since 2005 and had returned to the country just a month ago (see Kreutz et al. 2019a Dataset). Police had been following the intel on her arrival and she was finally arrested in the airport trying to fly back to France (Ibid). The other arrests in 2015 would have been solely the result of the search operation by the police (Ibid). The arrest in 2016 was also credited to intel provided by the other LTTE suspect (Ibid). Overall, these arrests do not follow the theoretical mechanism of eliminating the political opponent or consolidating the power by using justice as an electoral manipulation strategy. This questions the significant relationship observed between arrests and election years in some models as there might be other arrests that could have been coincidentally rather than motivated by the upcoming election.

53

4.3.3 Discussion on Additional Observations We did not observe any relationship between arrests of former wartime leaders and any of the variables based on the past literature in the statistical tests above; thus, this section discusses possible explanations behind such findings.

Relative Power Theory As presented in the earlier chapters, the relative power theory concerns the relative power of outgoing and incoming political elites determined by the type of political transition and/or state structures following a conflict (Grodsky 2008). The political transition type expects justice to be least likely when the transition is brought through an agreement and more likely when the past government is completely overthrown (Huntington 1991 cited in Grodsky 2008). The state structure theory expects no or minimum justice in the post-conflict period when the state structure continues to have old elites in influential positions and/or have large numbers of people that are in some way linked to past atrocities (Grodsky 2008; Nalepa 2010). Since types of political transitions can also influence state structure (Subotić 2009; Smith 2012), the effect of relative power was controlled through the type of conflict termination. Concerning the political transition type argument, one of the reasons for not observing its relationship with the arrests might be because its theory fails to account that different conflict dyads might be active in the same country and those dyads might end in diverse ways but influence each other; thereby, affecting the existence of impunity or arrests in the given post-conflict country. For example, if one conflict-dyad ends with a government victory and other ends with a peace agreement then the country or the existing political elites might be more open or are forced to share political space even with those related to a government victory dyad. Nevertheless, the explanatory power of the relative power theory cannot be fully disregarded to explain arrests (lack of arrests) in post-conflict countries. As observed in Nepal, both sides of the conflict, especially rebels, gained considerable power following the peace agreement that formally ended the war (see ICJ 2017). This could partly explain why both sides enjoy almost absolute impunity (Ibid). The Sri Lankan case provides some insights into the relationship between a transition achieved through a government victory and arrests (or lack of arrests) of former wartime leaders. Although both the conflict-dyads ended with a government victory, no former wartime leaders were arrested from JVP while some former wartime leaders were arrested from the LTTE (see Kreutz et al. 2019a dataset). This could have been partly shaped by the ethnicity of the group as the LTTE was a Tamil group (Höglund & Orjuela 2013)

54 while the JVP consisted mainly of Sinhalese (Watkins 2005) and/or it could be because the LTTE was considered a terrorist organization (Stone 2014) and the JVP was “normal” rebel group, among other reasons. Both countries do not offer any insight on transition achieved through rebel victory which the past literature predicted would pursue a harsher form of justice (Huntington 1991 cited in Grodsky 2008). Nalepa (2010) argues that against the conventional assumption that victors will pursue revenge through justice against former regimes, the complicity in the past crimes which she refers to as “skeletons in the closet” are held against victors. As a result, even the so-called new elites defer from pursuing justice (Ibid). Overall, the exploratory power of transition types might be limited in the presence of other factors that might weigh more in determining whether a post-conflict country sees arrests or impunity for past crimes. Regarding the relationship between the state structure and arrests, the government side and security forces in Sri Lanka seem to not have gone through much structurally changes considering the Rajapaksa and his family were in power from 2006 to early 2015 (Stone 2014) and the country was heavily militarized by the time conflict ended and it even experienced further militarization (Höglund & Orjuela 2011). Having the past structure intact would partly explain why there were only two arrests of former wartime leaders from the government and the security forces side in Sri Lanka. Such an effect of state structure might not have been captured in the statistical analysis because both political transition and state structure were measured through types of conflict termination. Therefore, better operationalization of state structure in the post-conflict setting is required to better capture the statistical relationship between the state structure and the arrests of former wartime leaders.

International Pressure and/or Support We also did not observe any relationship between arrests and international pressure and/or support measured through DAC aid, and UN and RO peacekeeping. One of the reasons could be because international pressure is not well captured. For example, there are multiple channels of aid, like the World Bank and the International Monetary Fund (IMF) and multiple types of aid, like development aid, economic aid to name a few (Zürcher et al. 2013), so the pressure exerted through only DAC aid might not be enough to address the impunity for past crimes. However, the inclusion of different types of aids could have overestimated the effect of aid on arrests and caused multicollinearity. Similarly, the arrests in Bosnia and Herzegovina and other Balkan countries are partly credited to membership in the European Union (EU) and NATO (Subotić 2009). Membership in other regional organizations could be an option to better

55 measure international pressure; however, other regional organizations like those of developing countries might be systematically different than organizations like the EU and NATO. The UN and RO peacekeeping also did not show any relationship with the arrests of former wartime leaders in the statistical findings. This might be because the dataset on peacekeeping is from 1993 while the dataset for this paper starts from 1889, so the missing observations would have affected the findings. Besides, UN peacekeeping missions are seldom deployed as only 12 percent of all wars since 1994 saw robust peacekeeping operations and only 3 percent saw peace enforcement, while 71% of civil wars received no UN mission (Zürcher et al. 2013: 22). Zürcher et al. (2013) also argue that peacebuilding is an interactive process between peacebuilders (of which peacekeeping is part of) and those who remain in power or gain power by the time a conflict ends. As a result, peacebuilders and domestic elites engage in an informal bargaining process to ensure that the peacebuilding program gains traction (Ibid). Moreover, peacebuilders often prioritize minimizing casualties of their troops which makes them prioritize stability over other democratic reforms (Ibid). For example, in the post-conflict Bosnia and Herzegovina, NATO’s top priority remained protecting its soldiers amid the possibility of reigniting the conflict which made them reluctant to make arrests (Bass 2000). Even the arrests that were made following the international pressure were scrupulously designed to avoid casualties of its soldiers, mainly by avoiding arrests of leading war figures during the early years of the conflict termination (Ibid). Regardless of such constraint, Zürcher et al. (2013) maintain that the presence of peacebuilders does affect the political calculation of domestic elites. An interesting observation is that in Model 1, Annex II, regional peacekeeping appears to have a positive association with arrests at a 99% significance level, all else equal. However, the relationship between arrests and RO peacekeeping disappears once controlling for Bosnia and Herzegovina, democracy status, and stability in Model 2, Annex II. Whereas, the association between arrests and Bosnia and Herzegovina becomes statistically significant at 99% in Model 2, Annex II, all else equal. This suggests the possibility of a relationship between arrests in Bosnia and Herzegovina and RO peacekeeping. Bosnia and Herzegovina had the largest regional peacekeeping forces deployed among all the post-conflict countries,14 especially during the early years of conflict termination, so attributing arrests in Bosnia and Herzegovina to the presence of peacekeeping appears partly reasonable. A better examination

14 For example, Bosnia had around 60000 regional peacekeeping forces in 1994, 72000 regional peacekeeping forces in 1995 which is largest compared to other peacekeeping forces in the post-conflict countries (see Bara & Hultman 2020 dataset).

56 into the relationship between peacekeeping with larger troops and arrests is required before dismissing the effect of peacekeeping on arrests. Overall, to better capture the relationship between the arrests of former wartime leaders and international pressure and/or support shows the possibility of a better operationalization and measurement although the presence of different aids and their purpose, different donors and different international and regional organizations with varying level of power and nature pose problem in capturing “true” international pressure and/or support related to transitional justice.

Stability and Democracy Post-Conflict We did not observe any relationship either between arrests and stability or arrests and democracy in the statistical models earlier. The stability measured through count variable by assigning 0 to conflict termination year and 1, 2, 3 and so on (unless the other dyad is active in which case it coded as 0) might not have been a good predictor of stability in the post-conflict country as the country might continue to be marred with corruption, violence, and other shortcomings even after years since a full-fledged conflict. For example, as stated earlier, Nepal already had ten different governments within the 11 years of post-war which also suffered from corruption, nepotism, and other problems (ICJ 2017), in a similar way other post-conflict countries might be facing issues that make post-conflict period volatile. Regarding democracy, the findings lacking positive association between arrests of former wartime leaders might be because only a few post-conflict countries have the status of “Free” (see Freedom House Dataset 2020).

4.4 Alternative Explanation In the statistical test in Table 1, a positive relationship was observed between arrests and elections at the 99% confidence level, all else equal. Since election years appear to be unique in explaining the variation in the arrests of former wartime leaders, the alternative explanation could be that arrests of former time leaders are likely to take place when the new government is elected because the new government wants to distinguish itself from the past government. Grodsky (2008) claims that the implementation of transitional justice mechanisms can signal the initiation of institutional reforms and reinforcement of the rule of law. Similarly, prosecuting perpetrators for past atrocities is seen as a step towards incorporating democratic values (Oko 2003; Nuzov 2014) investments in its judiciary and its professionalization (Greenstein & Harvey 2017), and commitment to democratic institutions (Posner & Vermeule

57 2004). Although the given argument is usually made about a new regime following a conflict termination, it can be argued that even successive incumbents seek to align themselves to transitional justice, especially when the issue of past atrocities has not been properly or completely addressed. Given that transitional justice and prosecution of alleged perpetrators of past atrocities is associated with the initiation of democratic values, rule of law among other factors that are internationally considered desirable, transitional justice becomes an attractive tool to a new government trying to distinguish themselves from past regimes/governments. Hence, arrests could be more likely to be carried out against the former wartime leaders after a new government is elected in contrast to what the theory of this paper suggested, i.e. during the pre-election period, election day and immediate post-election period. The case of Croatia provides some insights on a newly elected government seeking to differentiate itself from the past government by aligning itself with transitional justice, partly explaining the arrest of former wartime leaders. The Croatian war ended in late 1995; however, there were only a few prosecutions as the government was headed by Franjo Tuđman’s and his right-wing nationalist party- Hrvatska demokratska zajednica (HDZ/the Croatian Democratic Union) who as argued by Grodsky (2008) continued to intensify nationalist approach to the Croatian war. The nationalist approach to the Croatian war argued that Croatia was attacked by Serbia and later by Serb minority, so the resulting war was no more than using one´s right to defend against such aggression (Ibid). As a result, most Croats believed that they were not perpetrators of war but its victim and the Croatian security forces defending the sanctity of the “homeland” and Croats were revered as the war heroes (Ibid). Following Tuđman’s death in 1999 and presidential and parliamentary elections in 2002, a new center–left coalition of six parties came to power (Peskin & Boduszyn´ski 2003). Peskin & Boduszyn´ski (2003) claim that the new government promised to reverse both the “anti- democratic” and “anti-Western” approach that the previous government had taken. As a result, in the initial phase following the 2000 election, the new government made significant gestures relating to past atrocities (Subotić 2009). Subotić (2009) agrees that such efforts were made mainly to differentiate itself from the Tuđman’s government. In the 2003 parliamentary election, HDZ regained power by securing enough seats in the parliament to form a ruling coalition, making Ivo Sanader the prime minister (Grodsky 2008). In the past, Sanader had been a very vocal critic of transitional justice, specifically against international justice (Subotić 2009). Sanader even gave one of the strongest anti-ICTY speeches at a right-wing rally in 2001 (Ibid). Interestingly, Sander started cooperating with ICTY after taking the office, surprising both national and international audiences (Ibid).

58 Their commitment to justice, however, might not have been “true” rather, as agreed by Grodsky (2008) and Subotić (2009), it was mainly motivated by securing membership to the EU and NATO and gaining legitimacy. Grodsky (2008) and Subotić (2009) also agree that the newly found support among the newly elected government for prosecution of alleged preparators is limited to explaining arrests of those who were indicted by ICTY than those indicted by the government. Since ICTY’s mainly prosecuted wartime leaders, military/rebel commanders and members of other top leadership (Grodsky 2008; Subotić 2009), the above observations provide some support for the alternative explanation which argues that the arrest of former wartime leaders are likely to be carried out after a new government takes over the power. On the other hand, this questions the explanatory power of the alternative explanation as the newly elected government might use arrests of former wartime leaders to distinguish itself from past government/regime only in the presence of international indictment and worthy rewards/pressure, like membership to internationally recognized organizations, as observed in post-conflict Croatia.

4.5 Limitations and Potential Bias 4.5.1 Theoretical Limitation The discussion on statistical findings was complemented with the evidence from post- conflict Nepal and Sri Lanka to examine the causal mechanism suggested by the theory of this paper. The evidence sheds light on both impunity and arrests of the former wartime leaders for the crimes committed during the armed conflict in the post-conflict setting. However, the focus of Nepal and Sri Lanka was not directed by robust case selection criteria rather were chosen for its ability to explore variation in the arrests of former wartime leaders and trace presence or absence of causal mechanism suggested in the theory. Hence, a robust research design on cases selection and more cases should have been included to increase the generality of the findings and reduce the selection bias. In addition, there are chances that some arrests fall in the hypothesized election period just by a chance, so the inclusion of evidence from only two countries fails to measure the extent of such possibility. It can also be argued that some relationships found between elections and arrests in Nepal and Sri Lanka can be spurious since the discussion does not control for potential confounders. For example, the conflict in Nepal ended with a peace agreement and the conflict in Sri Lanka ended with a government victory, so both countries fail to account for the effect of the transition type. Another limitation is the explanatory power of the alternative explanation is not well explored given the evidence is only from Croatia. The influence of the alternative

59 explanation was also not controlled in the statistical analysis. Nevertheless, this study provides insights on the possible relationship between arrests of former wartime leaders and elections years which opens the possibility for further research.

4.5.2 Research Design and Statistical Limitation The research design of this study faces a major problem of a temporal order since the unit of analysis is country-year. It was pointed out in the research design and analysis that there are chances of some arrests taking place after the inauguration of the new government in the given election year. On the other hand, there are chances of missing the possible effect of the pre-election period on arrests if any country had an election in the first half of the year. Considering that countries, in general, can vastly differ on when the pre-election period starts (Höglund 2009), it could have been difficult to collect data for all the post-conflict countries given the time constraint. One could argue that the research could have focused on one so that pre-election data could have been collected. However, there might be more accurate information on some countries than other countries and the regional focus would have compromised the generalizability of the study. Also, findings monthly observation for other variables, like aid, could have been nearly impossible. Another limitation is that since arrests are coded as a binary variable rather than the count variable, the statistical observations in this paper do not account for how many arrests took place in the given country-year. This can be seen as a failure to provide a complete overview of the prosecution of former wartime leaders in post-conflict countries. Similarly, Kreutz et al. 2019a dataset does not just include traditionally considered war crime and human rights violation but also includes crimes in a general sense that are connected to the conflict and conflict period. This would question whether the study is truly a discussion on transitional justice. The question can be addressed to some degree by arguing that what is considered war crimes and human rights violations is often contested (Kreutz et al. 2019b), as mentioned in the research design. Since the war/conflict itself is a unique event, including some crimes over others related to the conflict and conflict period would systematically bias the study. Even crimes like corruption and drug trafficking could be systematically different when related to the conflict and carried out during the conflict period compared to “normal” settings. Also, these crimes when widespread could be interconnected with war crimes and human rights violations during the conflict period. Kreutz et al. (2019a) also suffer from the issue of information availability and unclear information regarding some arrests, especially for countries other than Balkans as mentioned

60 in the research design. Such limitation reduces the credibility of the statistical findings since the failure to include some arrests due to lack or unclear information would have led to falsely observing (or not) the relationship between arrests and the independent variables suggested by the theory and past literature. Lastly, the election in this study only accounts for the types of national elections, disregarding the uniqueness of elections in different countries. It also fails to capture other factors, such as how many oppositions were allowed, the use of other electoral manipulation strategies, and whether the opposition and voters boycotted the election, that would have affected the likelihood of arrests. The failure to capture such events oversimplifies the relationship between the arrests and elections throughout the study. Nevertheless, the study and the findings should not be dismissed as it has opened a possibility of connecting systematic variation in the arrests of the wartime leaders with elections, alongside measuring the generalizability of past literature to some extent.

61 5. CONCLUSION Although the transitional justice literature has attempted to explain the presence (or absence) of transitional justice and its mechanisms in the aftermath of a conflict to some extent, a study that systematically investigates variation in arrests of former wartime leaders in post- conflict countries has not been yet developed to the author’s knowledge. Thus, this study aimed to address the research gap by developing a causal mechanism that allows addressing the question of what explains the variation in arrests of former wartime leaders in post-conflict countries over time? Building on the premise of the past literature which more or less agree that domestic actors politicize transitional justice and its mechanisms to eliminate political opponents among pursuing other private agendas, I argued that the arrests of former wartime leaders would be connected to elections and explained by incorporating the electoral manipulation theory. Elections come with uncertainty which for incumbents is a loss of power and other advantages while, at the same time, it offers the opportunity to convey the dominance of incumbents. Hence, the electoral manipulation theory generally argues that electoral manipulation tools are deployed to eliminate political opponents and consolidate power. Considering that electoral manipulation tools usually suffer from legitimacy issues and other costs, I argued that incumbents would like to continue manipulating elections to eliminate political opponents and retain and consolidate power, so they also opt for arrests in the guise of transitional justice to limit costs associated with electoral manipulation. The arrests of former wartime leaders were argued to be a viable electoral manipulation tool because it provides an opportunity to target the top leadership of opposition, help downgrade the image of opposition while elevating its image as a moral authority, add credibility to the elimination of political opponents, and provide a disguise to partake in other transgressions. Hence, it was hypothesized that arrests are more likely to be carried out against the former wartime leaders during the election period (pre-election period, election day, and immediate post-election period). The hypothesis was statistically tested, and the initial results suggested a positive association between the arrests of the former wartime leaders and elections years. Although controlling for the variables, namely stability, relative power of outgoing and incoming elites (measured by conflict termination type), international pressure or support (measured through DAC aid, UN peacekeeping, and RO peacekeeping), and their democracy status, increased the robustness of the findings, the possibility of some arrests happening after the hypothesized election period in the given election year greatly affected the credibility of the findings. Once the arrests that were carried out after the hypothesized election period were omitted, the

62 statistically significant relationship that was observed earlier disappeared, all else equal. Since the finding questioned the relevance of the theory suggested in this study and the statistical findings do not offer any insights on the causal mechanism, the discussions on the statistical findings were complemented with discussion on post-conflict Nepal and Sri Lanka. In the post-conflict period, Nepal saw only one high-level arrest while in Sri Lanka there were two high-level arrests from the military side and three high-level arrests from the rebel side until 2017. The one arrest in Nepal and two arrests from the military side in Sri Lanka which were carried out during the hypothesized election period provide some support to the theory suggested in this study. In detail, the theoretical expectation of arrests being used to eliminate political opponents by targeting top leadership of the oppositions and using legal means to justify the arrests showed reasonable possibility in Sri Lanka. It also has some ground to believe that arrests were used to convey the domination of incumbents as suggested by the theory though extensive research is required to draw credible implications on whether it affected the decision and behavior of other social and political actors related to power consolidation. The arrest in Nepal partly supported the theoretical claim that incumbents would still carry out arrests even if it is from their party or allies to distance themselves from those with alleged link to past crimes during the election period; however, the arrest mainly resulted due to the extended controversy created by continuous court order among other factors rather than due to oppositions politicizing links to past crimes to discredit the incumbents as suggested in the theory. In both countries, it was also observed that the presence of impunity/absence of arrests of the former wartime leaders over the post-conflict years are affected by domestic power politics, for example, in Nepal’s case the concerned arrest was avoided by disregarding repeated court orders and sentencing for nearly thirteen years. On the other hand, the argument that arrests provide an opportunity to label opponents as “enemies of mankind” while elevating its own image as a moral authority (see Schmitt 1996 cited in Nouwen & Werner 2010) was not observed in either of the post-conflict countries. Likewise, extensive research is required to connect above arrests with other forms of transgression that incumbents carried out in the guise of justice which is connected to power consolidation (Loyle & Davenport 2016). Similarly, two other arrests in Sri Lanka that were carried out during the hypothesized election period seemed coincidental. The possibility of some other arrests in the post-conflict countries being observed by coincidence further questions the relevance of the theory and statistical findings. Furthermore, both Nepal and Sri Lanka showed that the presence of impunity or absence of arrests is related to various other

63 factors, such as political alliances, nationalist approach to the conflict, and so on, rather than being connected to the absence of election in the post-conflict period. While the study did not find a statistically significant relationship and suffered from problems relating to research design, it nevertheless has contributed to the field of transitional justice and to some extent to electoral manipulation theory in a threefold manner. First, this study recognized that there is variation in arrests of former wartime leaders which may inspire further research. Second, it connected transitional justice, specifically arrests of former wartime leaders with elections that have rarely been explored in both transitional literature and electoral manipulation literature, alongside suggesting a novel causal mechanism. Third, it tested the relationship statistically between arrests and election in post-conflict countries which also led to testing its relationship with other variables suggested by the past theories. Lastly, this study provides potential directions for further research. Improved research design and data on pre-election periods of post-conflict countries would allow to better statistically test the relationship between arrests of former wartime leaders and hypothesized election period. Similarly, news/reports that capture claims/remarks/reactions of incumbents and oppositions on arrests of the former wartime leaders and as well evidence on whether the arrests were followed by changes in behaviors of political and social actors provide a possibility to better observe the suggested causal mechanism. Similarly, different case studies based on standard case selection criteria are necessary to credibly test the causal mechanism. Most importantly, the election years appear unique in its ability to predict arrests compared to other variables derived from past research. This not only poses a possibility of revising the theory suggested by this study but also poses a possibility of a new research direction as suggested in the alternative explanation. The alternative explanation suggests an investigation into a newly elected government and its relationship with the arrests of former wartime leaders though the relationship might be conditioned upon worthy international reward or loss.

64 6. ANNEXES Annex I Table of Summary Statistics Variables N Mean Min Max

Countries 1412 N/A N/A N/A

Year 1412 1989 2017

Arrests 1412 0.5807 0 1

Elections 1410 0.2652 0 1

DAC AID 1287 5.657e+08 -3.315e+08 2.203e+10

Conflict Termination Type 1350 0.5341 0 1

UN Peacekeeping 1267 1012 0 32796

RO Peacekeeping 1267 827 0 72180

Democracy Status 1382 0.6758 0 1

Stability 1359 6.67 0 28

65 Annex II

Logit Estimates on the Likelihood of Arrests in Post-conflict Countries with Lagged Variables, 1989-2017.

Results

Dependent variable:

Arrests (Model 1) (Model 2)

Election 0.644** 0.734** (0.267) (0.304)

DAC_Aid 0.000 0.000 (0.000) (0.000)

ConflictTermination_Type 0.313 -0.186 (0.264) (0.314)

Total_UN -0.00004 -0.00001 (0.00005) (0.0001)

RO_Peacekeeping_Total 0.0001*** -0.00002 (0.00002) (0.00003)

Bosnia 5.623*** (0.897)

Democracy_Status 0.588* (0.346)

Stability 0.021 (0.021)

Constant -3.242*** -3.563*** (0.242) (0.328)

Observations 1,095 1,051 Log Likelihood -236.009 -187.332 Akaike Inf. Crit. 484.018 392.664

Note: *p<0.1; **p<0.05; ***p<0.01

66 Annex III

An overview of the arrests of former wartime leaders coinciding with elections in post-conflict countries, 1989-2017.

Countries Year Arrests Arrests Election_Type Election Inauguration First Session Arrests Post Numbers Dates Dates Date of Elected Inauguration (yyyy-mm- (President) Parliament ? dd) Guatemala 2011 5 2011-06-09 Legislative/ 2011-09-11 No 2011-06-17 Parliamentary/ 2011-11-06 2011-10-12 Executive 2011-10-25 2011-07-24 2015 1 2015-04-06 Legislative/ 2015-08-09 No Parliamentary/ 2015-10-25 Executive Peru 2011 1 2011-06-11 Legislative/ 2011-04-10 2011-07-28 2011-07-26 No Parliamentary/ 2011-06-05 (Source: (IPU) Executive IPU) Central 2016 3 2016-03-15 Legislative/ 2016-02-14 No African Parliamentary/ 2016-03-31 Republic Executive Cote 2011 2 2011-08-20 Legislative/ 2016-12-11 No d'Ivoire 2011-04-13 Parliamentary Rwanda 2008 4 2008-06-11 Legislative/ 2008-09-15 No Parliamentary Egypt 2007 1 2007-05-? Legislative/ 2007-06-11 No Parliamentary India 1991 2 1991-12-31 Legislative/ 1991-05-20 1991-06-21 Yes 1991-12-31 Parliamentary (IPU) India 2009 3 2009-03-06 Legislative/ 2009-04-16 No 2009-03-06 Parliamentary 2009-03-16 Nepal 2017 1 2017-10-31 Parliamentary 2017-11-27 No 2017-12-07

67 Countries Year Arrests Arrests Election_Type Election Inauguration First Session Arrests Post Numbers Dates Dates Date of Elected Inauguration (yyyy-mm- (President) Parliament ? dd) Sri Lanka 2000 1 2000-07-19 Legislative/ 2000-10-10 No Parliamentary Sri Lanka 2010 1 2010-02-08 Legislative/ 2000-01-26 No Parliamentary/ 2000-04-08 Executive 2000-04-20 Sri Lanka 2015 2 2015-03-04 Legislative/ 2015-01-08 No 2015-04-02 Parliamentary/ 2015-08-27 Executive Croatia 2000 3 2000-09-12 Legislative/ 2000-01-03 2000-02-18 2000-01-27 Yes 2000-10-02 Parliamentary/ 2000-01-24 (Frucht (IPU) 2000-12-19 Executive 2000-02-07 2005) Croatia 2003 1 2003-07-10 Legislative/ 2003-11-23 No Parliamentary Croatia 2007 1 2007-12-29 Legislative/ 2007-11-25 2007-12-15 2008 -01-11 Yes Parliamentary (IPU) (IPU) Croatia 2009 1 2009-12-16 Executive 2009-12-27 No Croatia 2010 6 2010-05-12 Executive 2010-01-10 2010-02-18 Yes 2010-09-09 (Lansford 2010-09-09 2015) 2010-09-09 2010-09-25 2010-11-01 Croatia 2011 2 2011-06-20 Legislative/ 2011-12-04 No 2011-06-20 Parliamentary Croatia 2015 1 2015-07-09 Legislative/ 2015-11-08 No Parliamentary/ Executive Croatia 2016 1 2016-02-19 Legislative/ 2016-10-11 No Parliamentary North 2002 3 2002-07-02 Legislative/ 2002-09-12 2002-11-01 2002-10-03 Yes/No Macedonia 2002-11-03 Parliamentary (IPU) (IPU)) 2002-10-05 North 2008 1 2008-12-09 Legislative/ 2008-06-01 2008-6-21 Yes Macedonia Parliamentary (IPU)

68 Countries Year Arrests Arrests Election_Type Election Inauguration First Session Arrests Post Numbers Dates Dates Date of Elected Inauguration (yyyy-mm- (President) Parliament ? dd) Serbia 2003 5 2003-02-17 Legislative/ 2003-11-16 No 2003-02-06 Parliamentary/ 2003-12-28 2003-02-18 Executive 2003-10-22 2003-05-02

Colombia 2006 5 2006-02-08 Legislative/ 2006-03-12 2006-08-07 2006-07-20 Yes/No 2006-08-17 Parliamentary/ 2006-05-28 (DeRouen (IPU) 2006-02-03 Executive & Bellamy 2006-03-10 2008 ) 2006-01-20 Bosnia and 1996 4 1996-01-30 Legislative/ 1996-09-14 No Herzegovina 1996-01-30 Parliamentary/ 1996-05-02 Executive 1996-07-18 Bosnia and 2000 3 2000-06-25 Legislative/ 2000-11-11 No Herzegovina 2000-09-01 Parliamentary 2000-09-20 Bosnia and 2002 2 2002-01-31 Legislative/ 2002-10-05 No Herzegovina 2002-06-13 Parliamentary/ Executive Bosnia and 2006 2 2006-11-01 Legislative/ 2006-10-01 2006-11-06 2006-11-20 Yes Herzegovina 2006-11-02 Parliamentary/ (IPU) (IPU) Executive Bosnia and 2010 4 2010-01-20 Legislative/ 2010-10-03 No Herzegovina 2010-01-21 Parliamentary/ 2010-02-01 Executive 2010-03-22 Bosnia and 2014 2 2014-09-01 Legislative/ 2014-10-12 2014-11-17 2014-12-09 No Herzegovina 2014-12-05 Parliamentary/ (IPU) (IPU) Executive Philippines 2010 1 2010-09-22 Legislative/ 2010-05-10 2010-05-30 2010-07-26 Yes Parliamentary/ (Huang (IPU) Executive 2010)

Note: The elections dates includes dates for Legislative/ Parliamentary elections and/or Executive elections and /or second round of the elections

69 Annex IV

Frequency Distribution of Arrests of Former Wartime Leaders in the Post-conflict Countries, 1989-2017.

Annex V Frequency Distribution of Elections in the Post-conflict Countries, 1989-2017.

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