Rule of Law, Security, and Transitional Justice in Fragile and Conflict-Affected Societies

Abstract

States are expected to provide both security and justice for their citizens; one needs the other in order to work well. Yet when both are damaged or destroyed by war, state actors and outsiders alike tend to treat them as competing post-conflict priorities. Over the past twenty years, numerous processes have emerged to promote one or both, including “transitional justice”—from courts and truth commissions to community reconciliation—and programs to restore rule of law, reform the “security sector” (SSR) and disarm, demobilize, and reintegrate fighters into society (DDR). The many actors involved have just as many, sometimes competing, operational priorities, knowing that change is urgent, but necessarily long-term. This chapter examines the interaction of transitional justice, rule of law, SSR, and DDR, identifying key concepts, actors, processes, and challenges in pursuing change in each of these areas simultaneously.

Investigating the Legacies of Violence and Conflict in Transitional Justice and Peace

“…Since the rule of law deals with adherence to the principles of law to ensure peace and justice, transitional justice examines the processes and mechanisms that ensure a legacy of large-scale past abuses, human rights violations, accountability, justice, and social, political, and economic rights are achieved for reconciliation. Mihr and Sriram (2015) have raised the argument regarding the tenets of human rights and the rule of law concerning transitional justice and the prevention against violence and conflict, such as (a) the State obligation to investigate and prosecute alleged perpetrators of gross violations of human rights and serious violations of international humanitarian law, including sexual violence, and to punish those found guilty; (b) the right to know the truth about past abuses and the fate of disappeared persons; (c) the right to reparations for victims of gross violations of human rights and serious violations of international humanitarian law; and (d) the State obligation to prevent, through different measures, the reoccurrence of such atrocities in the future (Kathryn & Hun, 2013). These tenets are cardinal to achieving transitional justice's purpose(s) with formidable principles of rule of law in practice.…”

“…Transitional justice processes, in this case, make violence or conflict and post-conflict non-issue and reassure citizens that the government is committed to accountability, justice, rule of law, with the potential to improve public trust. Mihr and Sriram (2015) have, therefore, averred that transitional justice and the rule of law are unavoidably expected, especially in conflict-affected societies, as a measure against the legacies of violence and conflict and to help to promote post-conflict or post-agreement stability. This is achieved with the help of several actors who not only engaged in rule of law promotion and the promotion of security sector reform but also the eradication of conflict and post-conflict disorder.…”

“…However, several challenges were encountered in the transitional justice effort to identify and clarify its goals and design processes and projects that would deal with the atrocity of the past or legacies of human rights violations. The goal of transitional justice can be varyingly or simultaneously identified as peace, reconciliation and social cohesion, retribution, punishment, restitution, reparation, truth-telling, vindication, validation, deterrence, prevention, reform, and development (Mihr and Sriram, 2015). This approach takes as its starting point the idea that prevention is prioritised among all the possible goals for transitional justice, positing that the principal goal for transitional justice interventions should be non-recurrence, to guarantee never again.…”