Transitional Justice and Peacebuilding on the Ground: Victims and Ex-Combatants (Law, Conflict and International Relations) (37 page)

64
 OHR,
War Crimes Chamber Project, Project Implementation Plan, Registry Progress Report
, 20 October 2004. See Olga Martin-Ortega and Johanna Herman, “The Impact of Hybrid Tribunals: Current Practice in Bosnia and Herzegovina and Cambodia,” in M. Reed and A. Lyons (eds),
Contested Transitions: Dilemmas of Transitional Justice in Colombia and Comparative Experience
(Bogota: International Centre for Transitional Justice, 2010).

65
 OHR,
Decision Enacting the Law on Amendment to the Law on Court of Bosnia and Herzegovina
, 14 December 2009. For further explanation, see Martin-Ortega and Herman, “The Impact of Hybrid Tribunals,” op. cit.

66
 State Court’s website, <
www.sudbih.gov.ba/?jezik=e
>, accessed 13 September 2011.

67
 Janine Natalya Clark, “The State Court of Bosnia and Herzegovina: A Path to Reconciliation?”
Contemporary Justice Review
, vol. 4, 2010, pp. 317–90.

68
 UNDP,
Justice and Truth in BiH
, op. cit., p. 16.

69
 See, as well, Clark, “The State Court,” op. cit., p. 378 on the remarks of president of the Organisation of Missing Serbs in Sarajevo about the State Court being “very much on the side of Muslims.”

70
 Author’s fieldwork notes, Sarajevo, August 2009.

71
 Bogdan Ivaneševi
ć
,
The War Crimes Chamber in Bosnia and Herzegovina
:
From Hybrid to Domestic Court
(New York: ICTJ, 2008), p. 36.

72
 Stephanie Barbour, “Domestic War Crimes Processing in Bosnia and Herzegovina” (Internal Case Study, ICTJ Research Project: Making an Impact: Guidance on Designing Effective Outreach Programs for Transitional Justice, April 2011) (on file with the author), p. 30.

73
 Janine Natalya Clark, “Plea Bargaining at the ICTY: Guilty Pleas and Reconciliation,”
European Journal of International Law
, vol. 20 (2009), pp. 415–36.

74
 OSCE Mission in Bosnia,
Witness Protection and Support in BiH Domestic War Crimes Trials
(Sarajevo: OSCE, 2010); Clark, “The State Court,” op. cit., pp. 377–78; Refik Hodži
ć
, “Living the Legacy of Mass Atrocities: Victims’ Perspectives on War Crimes Trials,”
Journal of International Criminal Justice
, vol. 8, 2010, pp. 113–36; David Schwendiman, “Prosecuting Atrocity Crimes in National Courts: Looking back on 2009 in Bosnia and Herzegovina,”
Northwestern Journal of International Human Rights
, vol. 8, issue 3, 2010, pp. 296–99.

75
 See Orentlicher,
That Someone Guilty Be Punished
, op. cit.

76
 OSCE Mission in Bosnia,
Delivering Justice in Bosnia and Herzegovina. An Overview of War Crimes Processing from 2005 to 2010
(Sarajevo: OSCE, 2011), pp. 62–93; Human Rights Watch,
Still Waiting. Bringing Justice for War Crimes, Crimes against Humanity, and Genocide in Bosnia and Herzegovina
’
s Cantonal and District Courts
, available at <
www.hrw.org/sites/default/files/reports/bosnia0708_1.pdf
>, accessed 13 September 2011.

77
 Ibid.

78
 The National Prosecution Strategy approved in December 2008 by the Council of Ministers of BiH established as is first objective to prosecute the most complex and top priority war crimes cases within 7 years of the adoption of the strategy and the rest of the cases within 15 years. The National War Crimes Strategy is reproduced in Annex 2 of the Forum for International Criminal and Humanitarian Law,
The Backlog of Core International Crimes Case Files in Bosnia and Herzegovina
, 2009. However, experts consider that only 2,000–3,000 alleged perpetrators could potentially be prosecuted. Author interviews with members of the SDWC, Sarajevo, August–September 2009; and see Iva Vukusic, “An Insider’s Account of Domestic Prosecutions in Bosnia-Herzegovina,”
paper presented at the
51st Annual Convention of the International Studies Association
, New Orleans, February 2009.

79
 Martin-Ortega and Herman, “The Impact of Hybrid Tribunals,” op. cit., and Martin-Ortega, “Hybrid Tribunals and the Rule of Law,” op. cit.; Clark, “The State Court,” op. cit., p. 383.

80
 For some of these, see Huma Haider, “Social Repair in Divided Societies: Integrating a Coexistence Lens into Transitional Justice,”
Conflict, Security & Development
, vol. 11, 2011, pp. 175–203; and Johanna Mannergren Selimovic,
Remembering and Forgetting after War. Narratives of Truth, Justice and Reconciliation in a Bosnian Town
, Doctoral Dissertation, Gothenburg: University of Gothenburg, 2010 (under revision for publication).

81
 UNDP,
Transitional Justice Guidebook
, op. cit., pp. 26–28; ICTJ,
Bosnia and Herzegovina, Submission to the Universal Periodic Review of the UN Human Rights Council Seventh Session: February 2010
(New York: ICTJ, 2009).

82
 In a speech in Sarajevo, in May 2001, the Tribunal’s president Claude Jorda noted that a truth and reconciliation commission could only “supplement, and if necessary, reinforce the International Tribunal in its mission of reconciliation” but not in any way represent a parallel and potentially rival institution. Speech reproduced at ICTY Press Release,
The ICTY and the Truth and Reconciliation Commission in Bosnia and Herzegovina
, JL/P.I.S/591-e, The Hague, 17 May 2001.

83
 Ibid.

84
 On the concerns over amnesties with regard to truth commissions, see UNDP reports:
Transitional Justice Guidebook
, op. cit., p. 28;
Justice and Truth in BiH
, op. cit., p. 12;
Facing the Past
, op. cit., p. 24.

85
 Jasna Dragovi
ć
-Soso and Eric Gordy, “Coming to Terms with the Past: Transitional Justice and Reconciliation in the Post-Yugoslav Lands,” in James Ker-Lindsay and Dejan Djokic (eds),
New Perspectives on Yugoslavia: Key Issues and Controversies
(London: Routledge, 2010).

86
 Human Rights Chamber,
Freida Selimovi
ć
and Others v. Republika Srpska
, 7 March 2003.

87
 See UNDP,
Transitional Justice Guidebook
, op. cit., p. 29.

88
 Ibid., pp. 29–30.

89
 Available at <
www.idc.org.ba
>, accessed 14 September 2011.

90
 As summed up by the following Coalition for RECOM reports:
Report about the Consultation Process on Instruments of Truth-Seeking About War Crimes and Other Serious Violations of Human Rights in Post-Yugoslav Countries. Review of Opinions, Suggestions and Recommendations Report
, May 2006–June 2009;
Regional debate on the Mandate of RECOM, Sixth Regional Forum on Transitional Justice
, Novi Sad, Vojvodina, Serbia, May–December 2009;
Consultation Process on the RECOM Initiative. An Overview of Thoughts, Suggestions and Recommendations
, July–December 2009 (on file with the author).

91
 See Coalition for RECOM,
Development Progress Report
, May 2006–July 2011, available at <
www.zarekom.org/documents/index.en.html
>, accessed 14 September 2011. The coalition has also organized a series of Regional Forums on Transitional Justice. The coalition per se was officially created at the Fourth Forum (Prishtina, 28–29 October 2008), attended by some 1,000 NGOs and victims’ organizations; for the process see Natasa Kandi
č
, “The RECOM Initiative: From a Non-Governmental Challenge to a State Project,” in Denisa Kostovicova (ed.),
The European Union and Transitional Justice: From Retributive to Restorative Justice in the Western Balkans
(IHLC, 2009), p. 107.

92
 Coalition for RECOM reports.

93
 Articles 2 and 4 of the
Proposed Statute of the Regional Commission for Establishing the Facts About War Crimes and other Gross Violations of Human Rights Committed on the Territory of the Former Yugoslavia
, 26 March 2011 (Coalition for RECOM), available at <
www.zarekom.org/documents/index.en.html
>, accessed 14 September 2011.

94
 Author interviews with members of the Humanitarian Law Centre and Documenta, Belgrade and Zagreb, July 2010.

95
 See Youth Initiative for Human Rights in Serbia and in Croatia,
Report on 1 Million Signatures for RECOM Campaign
, available at <
www.zarekom.org/documents/index.en.html
>, accessed 14 September 2011.

96
 Jemima García-Godos, “Victim Reparations in Transitional Justice—What is at Stake and Why,”
Nordic Journal of Human Rights
, vol. 26, 2008, p. 122.

97
 Ibid.

98
 UNDP,
Transitional Justice Guidebook
, op. cit., pp. 33–47; UNDP,
Facing the Past
, op. cit.,p.32.

99
 Ibid.

100
 UNDP,
Facing the Past
, op. cit., pp. 32–33.

101
 Ibid., p. 29.

102
 Stephan Parmentier, Marta Valiñas, and Elmar Weitekamp, “How to Repair the Harm After Violent Conflict in Bosnia? Results of a Population-Based Survey,”
Netherlands Quarterly of Human Rights
, vol. 21, 2009, pp. 27–44.

103
 Human Rights Chamber,
Alija Ibisevic and 1804 Others v. Republika Srpska
, 3 June 2003.

104
 OHR,
Decision Establishing and Registering the Foundation of the Srebrenica-Potocari Memorial and Cemetery
, 10 May 2001.

105
 See, for example,
The New York Times
, “Serbia’s Honest Apology,” <
www.nytimes.com/2010/04/02/opinion/02judah.html
>, accessed 20 October 2011.

106
 On the contrary, see Stephan Parmentier, Marta Valiñas, and Elmar Weitekamp, “How to Repair the Harm After Violent Conflict in Bosnia? Results of a Population-Based Survey,”
Netherlands Quarterly of Human Rights
, vol. 21, 2009, pp. 27–44.

107
 Dragovi
ć
-Soso and Gordy, “Coming to Terms with the Past,” op. cit., p. 193.

  9
Victim-Centered Justice and DDR in Sierra Leone

Chandra Lekha Sriram

Introduction

At the end of many civil conflicts, the twin demands of peace and justice compete for domestic and international resources and attention. This was no less the case in Sierra Leone than elsewhere. Historically, discussions about the place, if any, of accountability in peacebuilding processes have focused on a wide range of state and internationally sponsored mechanisms to respond to past atrocities and on reform/rebuilding of rule of law.
¹
They have only to a lesser degree dealt with two often-competing imperatives—concerns for both victims’ rights and disarmament, demobilization, and reintegration of ex-combatants (DDR)—in accountability and peacebuilding processes. In Sierra Leone, accountability mechanisms were most notably the Special Court for Sierra Leone (SCSL) and the internationally mandated Truth and Reconciliation Commission (TRC). This chapter will discuss the impact of these institutions for peacebuilding in the country, considering whether, as its proponents would have it, the court made direct contributions to the immediate demands of peacebuilding, or whether it undermined peacebuilding. Specifically, it will consider the tribunal’s relationship to victims’ needs and demands, and to the concerns of and need to reintegrate ex-combatants. While these are far from the only elements of concern, they constitute often-competing poles in transitional justice and peacebuilding processes, and ones which are often not considered together.

Hybrid tribunals and truth commissions are seldom the only mechanisms for accountability, dealing with demands of victims, or engaging with ex-combatants. Peace agreements and other documents increasingly acknowledge the importance of traditional mechanisms of conflict resolution and justice, but the literature on transitional justice and peacebuilding has yet to examine the impact of such mechanisms alongside victims’ rights and DDR. These mechanisms have flaws, and should not be uncritically accepted, but may indeed have peace-promoting capacities that more familiar transitional justice mechanisms may not. Indeed, in some instances, the use of traditional “cleansing ceremonies” facilitated the reintegration of former child combatants. This is by no means to suggest that these should supplant other mechanisms, but rather that it could be useful to consider how they might complement other transitional justice mechanisms.

Sierra Leone provides an ideal situation in which to examine such complementarities, and the role of a range of transitional justice mechanisms in peacebuilding, as it has established a hybrid tribunal and a truth and reconciliation mechanism, and has used traditional mechanisms for conflict resolution generally and the reintegration of former combatants into communities specifically. Each of these has its own contribution to make to, and tensions with, peacemaking and peacebuilding, and each is also potentially in tension with or complementary to the others.

In this chapter, I first describe very briefly the history of the conflict in Sierra Leone and international peacebuilding efforts, as well as the creation of the SCSL. I then explain the emphasis on victims’ rights and DDR as part of a larger assessment of peacebuilding and transitional justice. I explain the expected effects of hybrid tribunals, as well as the growing role played (or expected to be played) by traditional justice and conflict resolution processes in countries emerging from conflict. Then I consider the interaction of victims’ rights and DDR in the context of the hybrid tribunal, commission of inquiry, and traditional justice processes. Finally, I conclude with lessons learned for processes not only in Sierra Leone but in other conflict-affected countries.

Methodology

This chapter is based upon fieldwork over several years in Sierra Leone, with visits in 2004, 2008, and 2011. The research builds upon the extensive secondary research now available on peacemaking and peacebuilding in Sierra Leone as well as on the SCSL and the role and operation of traditional justice and conflict resolution processes. The fieldwork entailed semi-structured interviews with a wide range of national and international actors, including national civil society actors promoting human rights, good governance, victims’ rights, and the concerns of ex-combatants; officials of the United Nations; other international organizations; bilateral donors; international NGOs; and Sierra Leonean state officials; as well as providers of legal assistance for individuals facing formal court proceedings; and non-state justice and security providers. Interviewees are cited where agreed; otherwise anonymity of respondents is respected.