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Transitional Justice and Civil War: Exploring New Pathways, Challenging Old Guideposts Andrew G

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Transitional Justice and Civil War: Exploring New Pathways, Challenging Old Guideposts Andrew G Transitional Justice Review Volume 1 | Issue 1 Article 12 January 2013 Transitional Justice and Civil War: Exploring New Pathways, Challenging Old Guideposts Andrew G. Reiter Mount Holyoke College, [email protected] Tricia D. Olsen University of Denver's Daniels College of Business, [email protected] Leigh A. Payne Univeristy of Oxford, [email protected] Follow this and additional works at: https://ir.lib.uwo.ca/tjreview http://dx.doi.org/10.5206/tjr.2012.1.1.6 Recommended Citation Reiter, Andrew G.; Olsen, Tricia D.; and Payne, Leigh A. (2013) "Transitional Justice and Civil War: Exploring New Pathways, Challenging Old Guideposts," Transitional Justice Review: Vol. 1 : Iss. 1 , Article 12. DOI: http://dx.doi.org/10.5206/tjr.2012.1.1.6 Available at: https://ir.lib.uwo.ca/tjreview/vol1/iss1/12 This Article is brought to you for free and open access by Scholarship@Western. It has been accepted for inclusion in Transitional Justice Review by an authorized editor of Scholarship@Western. For more information, please contact [email protected], [email protected]. Reiter et al.: Transitional Justice and Civil War Transitional Justice Review, Vol.1, Iss.1, 2012, 137-169 Transitional Justice and Civil War: Exploring New Pathways, Challenging Old Guideposts1 Andrew G. Reiter, Mount Holyoke College, Department of Politics [email protected] and Tricia D. Olsen, University of Denver’s Daniels College of Business, Department of Business Ethics and Legal Studies [email protected] and Leigh A. Payne, University of Oxford, Departments of Sociology and Latin American Studies [email protected] Abstract Transitional justice has shifted from its primary use in addressing past atrocities of authoritarian regimes to those acts of violence committed during civil wars. Yet the use of transitional justice mechanisms in this new context is not well understood. Drawing from the existing transitional justice literature, this article generates a set of testable hypotheses to explore which factors influence the use of particular mechanisms during and after conflict. It then tests those hypotheses in 151 cases of civil war by using a cross-national data base of all countries in the world and their adoption of transitional justice 1 The authors would like to thank the two anonymous reviewers for their helpful comments on the manuscript; but any errors are of course our own. Transitional Justice Review, Vol.1, Iss.1, 2012, 137-169 Published by Scholarship@Western, 2013 1 Transitional Justice Review, Vol. 1, Iss. 1 [2013], Art. 12 138 Transitional Justice and Civil War processes from 1970-2007. This article further provides a preliminary analysis of the success of those mechanisms in obtaining and securing peace. The article concludes that amnesties remain more prevalent than trials during and after conflict, particularly in Africa and Asia. During conflict, higher death tolls are associated with the use of trials and amnesties, and longer wars with the use of all types of mechanisms. After conflict ends, however, longer wars and higher death tolls are associated with accountability, and the presence of international peacekeepers is associated with all types of mechanisms. Finally, we find that transitional justice—regardless of the particular form it takes—does not jeopardize the peace process, and that amnesties may be an effective tool to help end conflict. Introduction Transitional justice—the set of processes designed to respond to past human rights violations—has traditionally focused on political transitions from authoritarian rule to democracy.2 Yet in the past two decades international and domestic actors have adapted those mechanisms to the context of civil war. The United Nations ad hoc tribunals to address ethno-nationalist conflict in Yugoslavia and genocide in Rwanda, and hybrid courts to confront secessionist struggles in East Timor illustrate this shift. Domestic truth commissions have also responded to ongoing civil wars (e.g., Colombia) and to the aftermath of war (e.g., Liberia). This shift toward the use of transitional justice in the context of civil war will likely endure. After all, the number of post-authoritarian settings has begun to wane. Most countries of the third wave of democratization and the relatively short but explosive fourth wave of democratization have already adopted transitional justice processes. Fewer authoritarian state transitions demanding transitional justice occur today. In 2 Ruti Teitel, “Transitional Justice Genealogy,” Harvard Human Rights Journal 16 (2003): 69-94. Transitional Justice Review, Vol.1, Iss.1, 2012, 137-169 https://ir.lib.uwo.ca/tjreview/vol1/iss1/12 2 DOI: http://dx.doi.org/10.5206/tjr.2012.1.1.6 Reiter et al.: Transitional Justice and Civil War Reiter, Olsen and Payne 139 contrast, civil wars continue to proliferate around the world, offering new opportunities for transitional justice. Secessionist movements and ethnic tensions challenge the territorial integrity of newly independent states in Central Asia and the Balkans. Ongoing conflicts in Africa, as Sudan and the Democratic Republic of the Congo illustrate, demand resolution. Civil war violence also has spillover effects, extending the conflict into neighboring countries. In addition, heinous abuses, such as sexual and reproductive violence, forced conscription of children, and genocide provoke international moral outrage and a corresponding global demand for effective solutions. Transitional justice has offered a potential solution to these ongoing problems. It seeks to play a key role in the resolution of, and recovery from, civil war, and it will likely continue to do so. Yet civil war contexts present particular challenges for transitional justice. The magnitude of violent abuses render any attempt to address the past difficult, but the higher number of abuses associated with civil wars exacerbate those difficulties. Estimates range from over five million civil war deaths since World War II3 to more than 16 million.4 In addition, while authoritarian regime transitions tend to involve abuses by one set of actors, war tends to involve complicity on both sides. Rather than a clearly demarcated transition, moreover, both sides of the conflict in civil wars retain the potential to remobilize violently against transitional justice decisions that threaten their interests. An additional challenge involves ongoing violence. In transitions from authoritarian rule, new democratic governments tend to implement transitional justice. In civil war contexts, these mechanisms 3 Bethany Lacina, “Explaining the Severity of Civil Wars,” Journal of Conflict Resolution 50 (2006): 276-289; Bethany Lacina and Nils P. Gleditsch, “Monitoring Trends in Global Combat: A New Dataset of Battle Deaths,” European Journal of Population 21 (2005): 145-166. 4 James D. Fearon and David Laitin, “Ethnicity, Insurgency, and Civil War,” American Political Science Review 97 (2003): 75-90. Transitional Justice Review, Vol.1, Iss.1, 2012, 137-169 Published by Scholarship@Western, 2013 3 Transitional Justice Review, Vol. 1, Iss. 1 [2013], Art. 12 140 Transitional Justice and Civil War sometimes occur as a mechanism for ending violence. Transitional justice provides a new tool in the effort to bring peace: a truth commission to acknowledge and reconcile war atrocities; an amnesty to promote disarmament; or trials to punish and deter certain violent acts. Despite strong evidence of a shift in the use of transitional justice toward civil wars, little empirical research analyzes its use or its impact in this new context. This article does so. It explores which transitional justice mechanisms countries adopt during and after civil war. It further analyzes the factors that shape particular choices. It also provides a preliminary reflection on transitional justice’s success in establishing and maintaining peace. To accomplish these tasks the article draws on the Transitional Justice Data Base (TJDB), a cross-national data base of all countries in the world and their adoption of transitional justice processes between 1970 and 2007.5 While the dataset includes information on reparations and lustration/vetting programs, this article focuses on the adoption of three main transitional justice mechanisms—trials, truth commissions, and amnesties—in 151 cases of civil war in 91 countries. These three mechanisms are at the center of the theoretical debates regarding transitional justice and are those for which the most comprehensive data was collected. Using empirical analysis to assess the adoption of transitional justice processes to civil war contexts offers a first critical step in establishing where and how transitional justice might bring peace to worn-torn countries. Transitional justice and civil war 5 For more information about the coding of mechanisms and the construction of the dataset see: Tricia D. Olsen, Leigh A. Payne, and Andrew G. Reiter, Transitional Justice in Balance: Comparing Processes, Weighing Efficacy (Washington, DC: United States Institute of Peace Press, 2010); Tricia D. Olsen, Leigh A. Payne, and Andrew G. Reiter, “Transitional Justice in the World, 1970-2007: Insights from a New Dataset,” Journal of Peace Research 47 (2010): 803-809. The data are available here: http://www.tjdbproject.com/ Transitional Justice Review, Vol.1, Iss.1, 2012, 137-169 https://ir.lib.uwo.ca/tjreview/vol1/iss1/12 4 DOI: http://dx.doi.org/10.5206/tjr.2012.1.1.6 Reiter et al.: Transitional Justice and Civil War Reiter, Olsen and Payne 141 Some scholars recommend a
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