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Marrying peace and justice in the aftermath of conflict

Select excerpts from an address by Rama Mani, Visiting Scholar at the Geneva Centre for security Policy, at the ICES Auditorium, Colombo February 17, 2003

Rama Mani

A major challenge Sri Lanka faces today is that of remarrying peace with justice after the twenty years of conflict that tore them apart. As Sri Lanka faces this task policy makers face the options, obstacles and dilemmas involved in this tenuous task, this monograph brings to their attention the experiences and lessons of national and international peace builders in a range of other developing countries that have recently emerged from conflict.

In doing so, it seeks to throw light on the complex nexus between peace and justice, and on the policy ramifications, available options and likely dilemmas that policy makers, academics and civil society might have to grapple within the unique peacemaking and peace building process unfolding in Sri Lanka today.

Restoring the Three Dimensions of Justice: 

Lessons from Post-Conflict Countries

1. Restoring Legal Justice or the Rule of Law in Post-Conflict Societies: Might or Right?

Since the experience in Cambodia, the notion that the rule of law is a pre-requisite for peace and stability has led to a mushrooming of programmes, primarily led by international actors, to rebuild the institutions of the rule of law - namely the judiciary, police and prisons. A close analysis of rule of law reform efforts over the last decade lead to my conclusion that in the urgent search for security after the uncertainty and chaos of conflict, there appears to be a tendency for peacebuilders to treat the rule of law as a mechanism for establishing order rather than as a vehicle to restore justice within society.

There is a danger, therefore, that current efforts by national and international agencies in rule of law reform may contribute only to short-term negative peace, to the detriment of just and sustainable positive peace.

International rule of law programmes suffer from three fundamental and inter-linked shortcomings. First, their implementors regard their task as a mainly technical one and ignore its political ramifications. A wry comment by a senior UN official on the situation in Rwanda captures the problem: '"restoring justice" became a question of how to give computers to the Justice Ministry'.

Second, is a tendency for these programmes to be 'one size fits all', that is standard and uniform. International rule of law programmes have tried to implement basically the same programmes with little adaptation to entirely different contexts, ranging for example from the illegitimate but still largely functional legal system in Namibia, the deeply corrupt, politically manipulated and dysfunctional but still extant judiciary in El Salvador, and the completely devastated and non-functional system in countries like Rwanda.

Third, these programmes embody what I call 'programmatic minimalism', that is, they have a minimalist objective rather than a long-term vision, and consequently support short-term and limited programmes rather than sustainable processes.

The majority of international programmes focus on the institutions and mechanics, the form and structure, of the rule of law, while evading the substantive content - the ethos - of that rule of law. They focus on resurrecting the standardised and replicable pillars of the rule of law - the judiciary police and prisons - rather than addressing the content of the laws upheld by them.

They focus on law enforcement - as illustrated by the preoccupation with police reform - rather than the generation of the rule of law and of public confidence in it. They shy away from knowledge and integration of cultural and historical specificities and needs of individual societies, and engage local populations only minimally in their programmes.

While focusing considerable effort on rehabilitating legal institutions, international actors do not appear attentive to the countervailing necessity of ensuring that the rule of law is firmly anchored in the society and enjoys political commitment and public trust. Perhaps most important, the programmes and their sponsors are largely silent as to whether the rule of law is designed to provide citizens with their right to justice and to safeguard their dignity or merely to provide order in society.

High crime and insecurity are frequently unavoidable in conflict's aftermath due to many factors: a surplus of cheap weapons; vestiges of underground war economies; high unemployment; disgruntled, and often armed, ex-combatants. If the rule of law is treated primarily as a mechanism to restore order and security and to maintain and enforce negative peace, several consequences might ensue; the police may backslide towards the use of excessive force; courts may impose unduly harsh and unjust sentences; and prisons may violate prisoners' rights.

In the interest of security, and in the name of the law, the rule of law may be violated. If courts, police and prisons are seen to constitute the security sector, it risks making the law subservient to the needs of security and order rather than justice. Yet, the urge to restore security and entrench order appears today to be a motivating force behind donors' rule of law reform efforts, as is manifested in their preoccupation with police reform and law enforcement mechanisms.

Incremental maximalist

Based on the experiences of countries so far, I strongly recommend that programmatic minimalist be rejected in favour of what I call 'incremental maximalist'. Incremental maximalist implies a framework which embeds the rule of law in justice, human rights and values, and concerns itself with both the form and substance of law, and with both the institutions and ethos or princes of the rule of law.

This maximalist vision of the rule of law could be realised through an incremental programme that focuses on the longer-term process, and sets realistic, long-term targets for the gradual achievement of its more ambitious goals. Furthermore, incremental maximalist would engage throughout the process the full participation and involvement of local populations. It would integrate local legal traditions, after full and careful consideration to their acceptability to local populations and adherence to international principles.

2. Rectificatory Justice in Post-conflict societies - Pursuing Perpetrators or Vindicating Victims?

The horrific war crimes and genocide perpetrated in Rwanda and former-Yugoslavia and the innovative experiment with truth and reconciliation in South Africa riveted international attention on the question of dealing with 'crimes of the past' in post-conflict transitions.

However, it could be questioned whether this flood of concern has clarified or, rather, obfuscated the exigencies of rectificatory justice in post-conflict societies.

Observation of recent cases suggests that human rights scholars, activists and practitioners have been marked by past experiences of democratic transitions in other parts of the world, and as yet possess an incomplete understanding of the distinctly different circumstances of less-developed post-conflict countries, and the specific needs, constraints and dilemmas they face.

They have a tendency to simplify the complex claims of rectificatory justice in low-income post-conflict societies, and to search for a definitive solution that could be applied, with minor adaptation, across disparate cases. Recently, 'truth commissions' a la South Africa and trials or tribunals 'a la Rwanda have become the two most popularly advocated measures.

Both have their relative merits when adapted to the particularities of the context, and when instituted with appropriate and sufficient mandates, material and human resources and political support-which is regrettably rarely the case in low-income post-conflict countries. A poorly resourced truth commission whose recommendations are ignored by the political leadership, as in Haiti can be worse than no truth commission at all.

Points to deal with past violations

Based on close examination of numerous post-conflict countries that have confronted the crimes of their past, I conclude that the issues of rectificatory justice in post-conflict developing countries are complex and contentious, and elude the simple, universal solutions that are often urged upon them. I urge peacebuilders to avoid facile external solutions to the unique complexities of each situation, and to accept the three following lessons as starting points in deliberating on an appropriate process of dealing with past violations.

First, a single officially-sponsored mechanism cannot resolve rectificatory justice claims definitively, but rather, a combination of measures that includes but goes beyond the criminal justice system is required. This implies that even if an official truth commission is established or national or international trials are instituted, other parallel informal, traditional and official measures may be required for a comprehensive response. It also means being innovative in adapting existing legal or official mechanisms to suit the particular needs and conditions of the country and conflict in question.

Second, the preferred mechanisms in use today - trials and truth commissions - target individual perpetrators and victims, but sideline the wider community of survivors affected by injustice. Identifying individual perpetrators and victims is required by the law and has important symbolic value.

However, rectificatory justice requires a broader and more comprehensive response that will engage all survivors within a given society if it is to lead to a process of inclusive reconciliation. This is all the more necessary in today's conflicts where the line between perpetrators and victims is blurred, as all sections of society have been victimised by war at some tie, and many have benefitted from or participated indirectly in the systemic injustices of war.

Third, rectificatory justice, divorced from its organic and functional interdependence with legal justice on the one hand and distributive justice on the other, may prove incomplete and precarious. This was corroborated in South Africa where at the end of the Truth and Reconciliation Commission's work, several commissioners noted that the real success of their endeavour would be determined not by how many people were granted amnesty or put on trial, but rather by whether ordinary people had a greater degree of social justice and welfare, and faced less racial discrimination in the long run.

Reparative justice

Instead of current approaches, I propose an alternative approach called 'reparative justice' based on both the legal and psychological conceptions of reparation. reparative justice aims to be sensitive to the nature of offences and their impact on victims, offenders and societies, and flexible in devising a suitable combination of responses to them.

Importantly, reparative justice does to exclude punishment or prosecution. Indeed, formal legal redress and punishment are likely to remain important parts of the response to past abuses in several post-conflict cases, not least due to the stipulations of international law, and the symbolic and political goal of combating impunity. nevertheless, how a society adapts its criminal laws to conduct fair trials, and how it decides to determine appropriate punishment may vary according to its sui generis needs, possibilities and constraints.

The means chosen may not always be individual prosecution and incarceration; for example, sometimes collective trials may replace the former and community work may replace the latter, as Rwanda is experimenting in their national and traditional gacaca trials. Reparative justice offers the possibility of combining available measures or innovating new ones to address the varied requirements of each post-conflict situation. In fact, reparative justice requires and demands such combinations.

Thus, reparative justice is proposed as a more appropriate response to dealing with past abuses in developing countries emerging from conflict, as it encompasses the needs of all 'survivors' of conflict - victims, offenders, and society at large - and it is conscious of and strives to balance the sometimes contradictory imperatives of positive and negative peace within low-resource settings.

3. Addressing Distributive Justice in Post-Conflict Societies: Effects or Causes?

Faced by the material and economic devastation wreaked by conflict, post-conflict governments and international donors feel an understandable urgency to address these material effects of war. Consequently, a plethora of international agencies have dashed to the aid of post-conflict governments, focusing on 'kick-starting' and stabilising the economy, stimulating economic growth, rehabilitating infrastructure, and other visible 'quick-impact projects'. Despite the good intentions and considerable impact of such reconstruction assistance, the pre-occupation of governments and donors with the material effects of conflict tends to sideline the underlying causes of conflict.

Understandably, the pressing concern after conflict is simply keeping people alive by providing basic physical security, food, water and shelter. This is all the more so when conflict is accompanied by drought or famine as is so often the case, as in Mozambique, Sudan, Ethiopia or Somalia. This provides the rationale for the World Bank and IMF to adopt what they see as the most efficient and inexpensive way to save and sustain lives: through rapid economic growth, privatisation, liberalisation, economic stabilisation, budgetary constraint and government downsizing.

The problem in practice with this 'Washington Consensus' approach is that it is based on ideal market conditions and is not appropriate for economies that have been ravaged by conflict and suffered economic distortions. Political economists have demonstrated painstakingly the frequent negative consequences of these policies of post-conflict countries, such as in Guatemala, El Salvador and Haiti.

Although the World Bank has also admitted the 'follies of conventional wisdom' and their negative results in countries like Cambodia and El Salvador. IFIs continue to advocate largely the same policies to-date. This approach has not only overlooked the underlying causes of conflict but has often exacerbated the feelings of grievance and marginalisation that underlay war, and frustrated public hopes of a peace dividend benefitting ordinary people after conflict, as evidenced in mass public protests against privatisation and liberalisation in countries like Haiti.

Whatever the economic rationale, the consequences of the Washington Consensus policies must be envisaged for a population that fought or suffered bitterly to achieve greater distributive justice, and who dreamt that the end of conflict would restore equal dignity between them and their erstwhile foes. After conflict, there is, indubitably, a need to attend to the socio-economic consequences of conflict. But to ignore the underlying causes, the systemic injustices and structural inequalities (real or perceived) that led people to take up arms against their own neighbours is to discount their motivations and to re-stoke the embers of conflict.

The striving for rapid economic growth and stabilisation purported by to feed conflict's survivors has to be balanced with striving for greater equity between these survivors, so that they regain human dignity and are not lured back to violence to express unassuaged grievances.

This is not an easy balance to achieve within the constraints of post-conflict environments. Yet to pursue the former while neglecting the latter may imply pursuing an illusory negative peace through preserving lives, without the necessary underpinning of positive peace, to give those lives equal dignity.

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The National Policy Framework - a rights perspective

by Prof.S.Ratnajeevan H.Hoole

National Education Commission recently unveiled its "National Policy Framework" a monumental work that brings together much information, identifies problems and offers policy awaiting the likely endorsement of government. NEC takes the moral high ground through a rights-based framework, emphasizing equity and multiculturalism. The document is striking for being in sound English.

The highlights are compulsory education from ages 5 to 16 (making child-servants more difficult); publication of dropout data; a new grade 5 scholarship exam of 2 papers, one on general aptitude and the other on learning competencies replacing the old subject tests; the Rs. 6000 p.a. scholarship income qualification and the Rs. 240 p.m. bursary award are to be raised to 36,000 and 500 respectively; mid-morning meals in poor areas, free books, uniforms etc. to be continued; the right of every child to a primary school within 2 km (so schools cannot be shut down easily); English promoted and teachers to pass an English test for promotions; international schools to conform to ministerial requirements; and daycare centres to be registered, conforming to minimum standards.

Teachers in difficult areas will receive incentives, a 25% allowance and preference for foreign scholarships. The encashment of unutilized leave will be allowed.

In high school there will be no science-arts dichotomy and pure science will be emphasized with less technology. History and geography are reintroduced, promoting patriotism, a Sri Lankan identity and human rights. However, all the reports flaws arise from the lack of wide societal representation on the Standing Committee that crafted it so that all concerns are raised.

Consultation with the public sought through newspaper advertisements has clearly not worked.

There was once a time when no Tamil was a ministry Secretary and few in real power. If minorities were appointed it was to use them to implement discriminatory policies, as when Mahadeva, Pascaralingam and Badiuddin were used to introduce standardization. Thereafter, as perhaps the lone positive legacy of the Premadasa era, an unwritten quota system came in.

Suddenly we had Tamil Secretaries. Accordingly I am one of 5 UGC members, the competition restricted to Tamils for the Tamil seat. And Dr. David Ponniah and Prof. S. Sandrasegaram are on the 10-man NEC. The Standing Committee of 25 behind the Policy Framework, however, has been constituted by the old ways of picking up friends. So it had only one Tamil, showing that structured methods are necessary to ensure democratic representation.

For when we pick friends, we choose those like ourselves. Further, when one out of five is a Tamil as a Tamil, it is easy for him to speak consciously for the Tamil perspective as would be his job. But when a Tamil sits as a friend out of 25, it is daunting to speak as a Tamil.

Unfortunately, the two Tamil NEC members failed to speak up.

Consequently, the special problems of the conflict areas receive a sympathetic but cursory recommendation of high priority for development. Tamil textbooks being late is unaddressed. So is biased pro-Aryan history for social studies; as also estate schools being closed as sterilisation campaigns take their toll. No one has raised Tamils studying Buddhism and in Sinhalese because Sinhalese schools are better and closer. Nor Vellahlah domination of schools that produce university entrants in the North while the low-caste generally are in non-productive schools.

On district quotas for university, recall that they began as ethnic quotas in 1970 where a Tamil at Royal had to perform better than a Sinhalese there. Ethnic preference was then camouflaged as district quotas; district and ethnic origins being broadly synonymous. In time all came to recognise that district quotas had merit of their own since a student from Killinochchi and Colombo getting the same marks did not perform equally. Today, ironically, Jaffna students, ravaged by war, are benefited by district quotas.

In this setting there is a startling recommendation without national discussion. It is that a Central Admissions agency will determine admissions on all-island merit, except for the various sciences including engineering and medicine for which the merit quota will go up from 40 to 60% immediately and 80% in 2006. Perhaps the lack of sympathy for the poor districts has to do with the Standing Committee being stacked with English-speaking Colombo folk. That district quotas will be computed using numbers-sitting rather than population is again pro-Colombo. To the same undemocratic constitution may be attributed the preamble. Saying all the right things about multiculturalism and unbiased histories, the report is prey to the same biases it decries.

The Burghers and Christians are insulted by saying the educational system was disrupted by the advent of the colonial powers (whereas Greater India which includes us had entered a dark age by the 12th century).

It claims wrongly that the British worked with American missionaries to train personnel for the colonial administration whereas the Americans, just after the Anglo-French war, were viewed with suspicion by the British and worked with the aim of eliminating superstition as they understood it. Salt to the wound is the technically correct claim that missionaries introduced education to a minority, ignoring that it was a substantial minority compared to what obtained, and they educated the low-caste and women, there having been only 2 literate women in Jaffna in 1815, both prostitutes writing temple music.

Similarly, the report mentions ancient Sri Lanka's hydraulic technology and architectural efflorescence as though South India had no contribution to make. Indeed, even recently artisans came to carve University of Peradeniya soapstone works.

Primary education must be in the mother-tongue says the report, but a fee-levying school like S. Thomas' can teach in any medium and an assisted private school like Methodist must conform to national policy. There seems no rationale, particularly when a judgement decrees that the recruitment of S. Thomas' Warden must follow state circulars.

A proposed National Education Network with content in Sinhalese and Tamil is unlikely to materialise, particularly in Sinhalese. That teacher education be coeducational militates against findings that women in womens colleges learn better because their learning styles are different.

That it should be multi-ethnic and multi-religious makes one wonder if all colleges in the North-East would be shut-down like Palaly. And is disallowing private tuition by teachers and students during school hours workable?

Overall it is a good, well-intentioned report. We can learn from its findings and mistakes. The NEC must be congratulated.

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