Reconciling Order and Justice? New Institutional Solutions in Post-Conflict States

Abstract

From the killing fields of Cambodia to the Dirty War in Argentina, from apartheid to the Nazi genocide, from Nyarubuye in Rwanda to Srebenica--these words symbolize the capacity for what the philosopher Emmanuel Kant called radical evil.(1) In the aftermath of mass atrocities, how do new governments settle accounts with the past while reconstructing a new political order? In international politics, political leaders weigh the tradeoffs between confronting injustice and securing peace. Jose Zalaquett, a Chilean human rights activist, describes the tension succinctly: Ethical principles provide guidance but no definite answer. Political leaders cannot afford to be moved only by their convictions, oblivious to real-life constraints, lest in the end the very ethical principles they wish to uphold suffer because of a political or military backlash.(2) Despite the demand for justice by human rights organizations, the media and other advocates, policymakers have most often deemed the pursuit of justice unrealistic when faced with the challenge of maintaining order in conflict-torn societies. The conventional view that placed peace and justice at loggerheads is receding as human rights concerns gain credibility and are integrated into political discourse across the globe. In the past two decades, there has been a proliferation of new institutional solutions designed to reconcile the goals of justice and peace. In Argentina, Chile, the Czech Republic, South Africa, Rwanda and the former Yugoslavia, political leaders have designed domestic tribunals, international tribunals, national truth commissions, amnesties and lustrations. In this article, we attempt to explain why political elites choose different institutions and how these choices reflect an effort to reconcile the tension between justice and peace in different political contexts. We ask why South African leaders chose a truth commission, which focused on public acknowledgment of atrocities without formal punishment, while international and domestic elites sought full-scale prosecutions for the former Yugoslavia and Argentina--in the former case through an international tribunal and, in the latter, through domestic trials.(3) Elsewhere, in Rwanda, both international and domestic prosecutions have been pursued concurrently Despite a growing interest in this topic, there is little work that is both theoretical and empirical and examines the specific factors that shape the strategies elites select to deal with the past.(4) We argue that institutional design is a function of the balance of power, the role played by transnational advocacy networks and the goals of political leaders in post-conflict states. The outcome of conflict, specifically whether conflicts are resolved through military defeats or negotiated settlements, and its effect on the balance of power influence the range of options for transitional justice. Through the strategic use of information and symbols, transnational advocacy networks disseminate knowledge about the nature of crimes and place human rights issues on the political agenda. Political leaders must balance these constraints and pressures with their own goals. Because they are directly involved in negotiating peace agreements and transitions to democratic rule, the goals of peace and reconstructing order are foremost in their minds. However, some policymakers are increasingly concerned with issues of justice. Whether leaders view peace and justice to be reconcilable goals is crucial for understanding the institutions they choose to deal with the past. To demonstrate our argument, we focus on transitional justice in the former Yugoslavia, Rwanda, South Africa and Argentina. BALANCE OF POWER The outcome of conflict and its effect on the balance of power set the parameters for the application of norms of justice. We examine two ways in which conflicts are resolved--military defeats and negotiated settlements--and assess how these affect institutional design. …