Abstract
Peace researchers have distinguished between two objectives of peacebuilding: the ‘negative peace’ objective of avoiding a relapse into conflict; and the ‘positive peace’ objective of consolidating peace by creating conditions conducive to reconciliation, regeneration and recovery.1 This nuanced distinction is of particular importance when attention is turned to the pressing issues of justice which arise and demand attention in the aftermath of modern civil conflict.
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Notes
See, further, Rama Mani, ‘Restoring Justice in the Aftermath of Conflict: Bridging the Chasm Between Theory and Practice’, paper at 25th Annual Conference of the Association of Legal and Political Philosophy on International Justice, University of Reading, 2–4 April 1997, and in Tony Coates (ed.), International Justice, Aldershot: Ashgate, 1999.
Mark Plunkett, ‘Reestablishing Law and Order in Peace-Maintenance’, Global Governance, vol. 4, no. 1, 1998, p. 63.
See, for example, the chapter on ‘Promoting the Rule of Law Worldwide’ in Our Global Neighbourhood, the Report of the Commission on Global Governance, Oxford: Oxford University Press, 1995.
An early public endorsement of the need to restore the rule of law in post-conflict peacebuilding was made by former Foreign Minister of Australia, Gareth Evans in the aftermath of the Cambodian experience, in Cooperating for Peace: The Global Agenda for the 1990s and Beyond, St. Leonards, NSW: Allen & Unwin, 1993, p. 56.
Plunkett is a leading proponent of ‘justice packages’, see n. 3 above, and ‘The Establishment of the Rule of Law in Post-Conflict Peacebuilding’, in Hugh Smith (ed.), International Peacekeeping: Building on the Cambodian Experience, Canberra: Australian Defence Studies Centre, 1994. Evans endorses the idea (see n. 6 above).
Martin Ganzlass, ‘Restoration of the Somali Justice System’, International Peacekeeping, vol. 3, no. 1, 1996, pp. 113–38.
See Rama Mani, ‘Conflict Resolution, Justice and the Law: Rebuilding the Rule of Law in the Aftermath of Complex Political Emergencies’, International Peacekeeping, vol. 5, no. 3, 1998, pp. 3–4.
Ibid., and Mani, ‘Restoring the Rule of Law in Post-conflict Societies’, paper at Conference on ‘Common Security and Civil Society in Africa’, Common Security Forum, Stockholm, 17–18 November 1997.
The characterisations of ‘minimalist’ and ‘maximalist’ are the author’s own, though similar distinctions have been made by others. Ronald Dworkin distinguishes between the ‘rule book’ conception and the ‘rights’ conception which approximates the minimalist-maximalist differentiation, in ‘Political Judges and the Rule of Law’, A Matter of Principle, London: Harvard University Press, 1987, pp. 9–32.
Mandela’s speech to court in 1972, cited in Kader Asmal, Louise Asmal and Ronald Suresh Roberts, Reconciliatioti through Truth: A Reckoning of Apartheid’s Criminal Governance, Claremont, SA: David Phillip, 1996.
The Report of the UN Truth Commission for El Salvador: From Madness to Hope, UN Doc. S/25500, 1993, p. 178, cited in Thomas Buergenthal, ‘The United Nations Truth Commission for El Salvador’, Vanderbilt Journal of International Law, vol. 27, no. 3, 1994, pp. 498–544 (p. 318), (and interview, 10 Sept. 1997, Washington, DC).
William O’Neill, No Greater Priority: Judicial Reform in Haiti, New York: National Coalition for Haitian Rights, 1995, pp. 1, 4; interviews with O’Neill (2 October 1997, New York).
Emma Visman and Emery Brusset, Framework Document: Prevention of Violent Conflict and the Coherence of EU Policies Towards the Horn of Africa, London: Saferworld and Channel Research Ltd., April 1998.
Krishna Kumar et al., Rebuilding Post-War Rwanda, Study 4 of The International Response to Conflict and Genocide: Lessons from the Rwanda Experience’, Copenhagen: Steering Committee of the Joint Evaluation of Emergency Assistance to Rwanda, March 1996, p. 76.
Ian Johnstone, Rights and Reconciliation: UN Strategies in El Salvador; Boulder, CO: Lynne Rienner, 1995; J. Michael Dodson and Donald Jackson, ‘Reinventing the Rule of Law: Human Rights in El Salvador’, Democratization, vol. 4, no. 4, winter 1997, pp. 110–34; Jack Spence, George Vickers and David Dye, The Salvadoran Peace Accords and Democratization: A Three Year Progress Report and Recommendations, Cambridge, MA: Hemisphere Initiatives, March 1995; Prof. Thomas Buergenthal (interview, 10 September 1997, Washington, DC).
Rachel Neild, Policing Haiti: Preliminary Assessment of the New Civilian Security Force, Washington, DC: Washington Office on Latin America, September 1995; Ettore Benedetto, MICIVIH (interview, Geneva, 1 July 1998).
Political will to redress one dimension of justice does not necessarily translate to the other dimensions. Namibia’s political will to see legal justice restored stood in contrast to its lack of political will to address the rectificatory justice issue of past human rights abuses committed by both sides. See, for example, Lauren Dobell, ‘Silence in Context: Truth and/or Reconciliation in Namibia’, Journal of Southern African Studies, vol. 23, no. 2, 1997, pp. 371–82.
Jean-Germain Gros, ‘Haiti’s Flagging Transition’, Journal of Democracy, vol. 8, no. 4, pp. 94–109.
‘The right to justice and a fair trial is a fundamental right recognised by the totality of international treaty documents and instruments’, Art.1 of International Charter of Legal Defence Rights of the Union Internationale des Avocats, in Reed Brody (ed.), The Independence of Judges and Lawyers: A Compilation of International Standards, CIJL Bulletin [Centre for the Independence of Judges and Lawyers], no. 25–26, April–October 1990, p. 95.
Indeed the International Covenant on Economic, Social and Cultural rights permits this in respect of developing countries. The Universal Declaration as well as the two covenants address ‘all human beings’. United Nations, Human Rights: A Compilation of International Instruments, New York: United Nations, 1988.
International actors have often been involved in the substantive content of laws: UNTAC wrote the criminal code and assisted the constitution-writing process according to the principles in the Peace Agreement in Cambodia, and the Western Contact Group drew up and obtained mutual agreement on the Constitutional Principles in Namibia, though SWAPO claimed they replicated its own principles. See International Peace Academy, The Namibian Peace Process: Implications and Lessons for the Future, report of Freiburg symposium, New York: July 1992, pp. 163–80; interview, Paul Szaz (New York, 3 October 1997). In Rwanda, the genocide law was drafted with great assistance from mainly American lawyers, loosely based on the American system of plea bargaining (Neil Kritz, interview, Washington, DC, 10 September 1997). However, international lawyers have largely based their substantive law drafiting on their own legal systems rather than catered to and built on local realities and needs. Peter Rosenblum and Mark Ross, Harvard seminar, n. 4 above. Therefore, interventions have reinforced the minimalist tendency of rule of law programmes, rather than countered it.
This discussion of customary law draws mainly on two sources: Mahmood Mamdani, ‘Customary Law: the Theory of Decentralised Despotism’, in Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism, Princeton: Princeton University Press, 1996; and Gordon Woodman, ‘Legal Pluralism and the Search for Justice’, Journal of African Law, vol. 40, no. 2, 1996, pp. 152–67. Although it focuses on Africa, it is relevant for other non-Western traditional societies. The colonial and early post-independence experience is discussed by Mamdani; Woodman discusses legal pluralism and its origins; the observations on post-conflict societies are the author’s.
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Mani, R. (2000). The Rule of Law or the Rule of Might? Restoring Legal Justice in the Aftermath of Conflict. In: Pugh, M. (eds) Regeneration of War-Torn Societies. Global Issues Series. Palgrave Macmillan, London. https://doi.org/10.1007/978-1-349-62835-3_6
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