Transitional Justice During Armed Conflict
Summary and Keywords
Armed conflict is ultimately about the violent confrontation between two or more groups; however, there is a range of behaviors, both violent and nonviolent, pursued by governments and rebel groups while conflict is ongoing that impacts the course and outcomes of that violence. The use of judicial or quasi-judicial institutions during armed conflict is one such behavior. While there is a well-developed body of literature that examines the conditions under which governments engage with the legacies of violence following armed conflict, we know comparatively little about these same institutions used while conflict is ongoing.
Similar to the use of transitional justice following armed conflict or post-conflict justice, during-conflict transitional justice (DCJ) refers to “a judicial or quasi-judicial process initiated during an armed conflict that attempts to address wrongdoings that have taken or are taking place as part of that conflict” (according to Loyle and Binningsbø). DCJ includes a variety of institutional forms pursued by both governments and rebel groups such as human rights trials, truth commissions or commissions of inquiry, amnesty offers, reparations, purges, or exiles.
As our current understanding of transitional justice has focused exclusively on these processes following a political transition or the termination of an armed conflict, we have a limited understanding of how and why these processes are used during conflict. Extant work has assumed, either implicitly or explicitly, that transitional justice is offered and put in place once violence has ended, but this is not the case. New data on this topic from the During-Conflict Justice dataset by Loyle and Binningsbø suggests that the use of transitional justice during conflict is a widespread and systematic policy across multiple actor groups. In 2017, Loyle and Binningsbø found that DCJ processes were used during over 60% of armed conflicts from 1946 through 2011; and of these processes 10% were put in place by rebel groups (i.e., the group challenging the government rather than the government in power).
Three main questions arise from this new finding: Under what conditions are justice processes implemented during conflict, why are these processes put in place, and what is the likely effect of their implementation on the conflict itself? Answering these questions has important implications for understanding patterns of government and rebel behavior while conflict is ongoing and the impacts of those behaviors. Furthermore, this work helps us to broaden our understanding of the use of judicial and quasi-judicial processes to those periods where no power shift has taken place.
Armed conflict is ultimately about the violent confrontation between two or more groups; however, there is a range of behaviors, both violent and nonviolent, pursued by governments and rebel groups while conflict is ongoing, which impacts the course and outcomes of that violence. For example, in addition to more commonly recognized forms of interaction such as engaging in battles, groups may grant concessions (Walter, 2006), engage in public goods provision (Crowley, 1991), or enter into peace negations (Fortna, 2004; Slantchev, 2003). Despite increasing interest in nonviolent interactions during conflict (e.g., Chenoweth & Stephan, 2011), this remains a comparatively undertheorized area of conflict studies.
The use of judicial or quasi-judicial institutions during armed conflict is one area of nonviolent interaction that has been left unexplored. While there is a well-developed body of literature that examines the conditions under which governments engage with the legacies of violence following armed conflict, we know comparatively little about these same institutions used while conflict is ongoing. Similar to the use of transitional justice processes following armed conflict or post-conflict justice, during-conflict transitional justice (DCJ) refers to “a judicial or quasi-judicial process initiated during an armed conflict that attempts to address wrongdoings that have taken or are taking place as part of that conflict” (Loyle & Binningsbø, 2017). DCJ includes a variety of institutional forms such as human rights trials, truth commissions or commissions of inquiry, amnesty offers, reparations, purges, or exiles.1 Instances of these processes during conflict could include human rights trials of rebel group members, reparations offered to rebels willing to lay down arms, or purges by government officials suspected to be loyal to the rebel cause, to name just a few. While less common, rebel groups also employ justice processes during armed conflict. For example, in their fight against the Nepalese government, the CPN-Maoists formed People’s Courts in the territory under their control and tried people for war crimes committed during the conflict (Sivakumaran, 2009). A similar phenomenon took place in Peru where the Shining Path also convened “people’s trials.”
The existing empirical work on transitional and post-conflict justice (e.g., Binningsbø, Loyle, Gates, & Elster, 2012; Olsen, Payne, & Reiter, 2010) has focused on the use of these processes once armed conflict has ended overlooking a wide range of applications for the same institutional structures while violence is ongoing. New data on this topic from the During-Conflict Justice dataset (Loyle & Binningsbø, 2017) suggests that the use of transitional justice during conflict is a widespread and systematic policy across multiple actor groups. Loyle and Binningsbø (2017) find that DCJ processes were used during over 60% of armed conflicts from 1946 through 2011; and of these processes 10% were put in place by rebel groups (i.e., the group challenging the government rather than the government in power).
As our current understanding of transitional justice has focused exclusively on the use of judicial and quasi-judicial processes following a political transition or the termination of an armed conflict, we have a limited understanding of how and why these processes are used during conflict. Extant work has assumed, either implicitly or explicitly, that transitional justice is offered and put in place once violence has ended. As demonstrated in the examples above, this is not the case. Three main questions arise from this finding: Under what conditions are justice processes implemented during conflict, why are these processes put in place, and what is the likely effect of their implementation on the conflict itself? Answering these questions has important implications for understanding patterns of government and rebel behavior while conflict is ongoing and the impacts of those behaviors. Furthermore, this work helps us to broaden our understanding of the use of judicial and quasi-judicial processes to those periods where no power shift has taken place.
I begin this article with a review of the types of DCJ most frequently used, discussing how during-conflict justice differs theoretically and practically from transitional justice. The next section focuses on the patterns of during-conflict justice use across armed conflicts. In order to understand the rationale behind DCJ use, I thereafter review the literature on the adoption of transitional justice processes. This literature, however, has not been able to address the distinctive power dynamics at play during an armed conflict. To gain additional leverage on DCJ use, I include a review of the conflict studies literature on government and rebel behavior during conflict to explore our understanding of why groups in conflict behave the way that they do. The integration of these two literatures is essential for theorizing the use of transitional justice in the context of armed conflict. Next, I turn to some preliminary findings on the impact of DCJ adoption. While empirical research on DCJ is still in its infancy, initial findings by Loyle and Binningsbø (2017) suggest that patterns of DCJ use can answer important questions about conflict behaviors and outcomes. I close the article with some suggestions for future research into this topic.
Types of During-Conflict Justice
As defined above, during-conflict justice refers to those processes implemented while conflict is ongoing ,which attempt to recon with the wrongdoings that have taken place or are taking place as part of the conflict itself. DCJ differs from other domestic judicial responses in two important ways. First, separate from domestic trials that may address crimes committed during the conflict, DCJ by definition seeks to investigate solely those crimes related to the conflict itself. For example, a DCJ human rights trial would investigate war crimes or atrocity crimes rather than petty theft. Second, while DCJ may build off of a country’s existing body of law, often new laws are enacted or new institutions are created to deal specifically with conflict-related issues. For example, during the civil war with the CPN-Maoists, the Nepal government implemented the Terrorist and Disruptive Activities Ordinance (TADO), which extended the length of detention without conviction, allowed for crimes related to the conflict to be tried in separate courts, and broadened the power of the security forces.
Furthermore, during-conflict justice differs from domestic transitional or post-conflict justice processes. While the institutional forms are similar across both categories, transitional justice has historically been used following a political transition or the end of an armed conflict. A political transition or shift in power has been seen as a necessary condition for the type of political space needed to recon with the past.2 DCJ, on the other hand, does not necessitate or often involve a major shift in power. Because of this different political context, the government and rebel motivations for implementing DCJ likely differ from that of adopting transitional justice. Transitional justice is argued to advance reconciliation, rule of law, and democracy in countries that choose to hold individuals accountable for past violations of human rights (Kritz, 1995). Advocates of transitional justice argue that accountability and greater transparency of past crimes is essential for building rule of law and democracy following such abuses (Elster, 2004; Hayner, 2011; Kritz, 1995; Minow, 2001; O’Donnell & Schmitter, 1986; Zalaquett, 1995). This is accomplished through developing a historical record that overcomes the potential denial of past events, providing psychological healing and dignity to the victims as well as publicly acknowledging past wrongs (Leebaw, 2008). In this way transitional justice is able to establish an “accurate” characterization of a country’s past regarding the activities of the previous regime necessary to create a common understanding around which the population can rally (see Loyle & Davenport, 2016, for a critique of this argument).
While transitional justice is generally argued to advance human rights and accountability (Arthur, 2009; Kritz, 1995), there is less consensus around the motivations for DCJ implementation, as will be discussed further below. During-conflict justice can be used toward a variety of ends. For example, some DCJ processes could be used to advance justice and the rule of law, such as government human rights trials, while other processes could support the military strategy of the combatant group, such as rebel purges. DCJ can be offered as a concession to a rebel group in the process of ongoing negotiations in the spirit of cooperation or as a sign of good faith. Alternatively, DCJ can be used to demonstrate strength by revealing a government or rebel group’s ability to identify individuals and hold them accountable for certain behaviors. The unifying theme across these motivations, however, is that these processes all seek to hold groups or individuals accountable for wrongdoings related to a given armed conflict.
In practice, during-conflict justice, like transitional justice, includes institutions across a wide range of forms and structures. The definition of each DCJ process and its mechanism of accountability are described below.
Human rights trials are the formal examination of alleged wrongdoing through judicial proceedings within a (quasi-) legal structure (Loyle & Binningsbø, 2017). During-conflict trials can include domestic prosecutions of war crimes, military courts, or ad hoc tribunals created specifically for a given conflict. Human rights trials generally address accountability by holding individuals responsible for actions committed during the conflict. For example, during the civil war in the 1960s, the Mozambique government held a series of military tribunals that targeted individuals suspected of supporting and relaying information to Frelimo leaders in hiding in Tanzania.
Truth commissions or commissions of inquiry are temporary investigative bodies that focus on a pattern of abuse over a particular period of time (Hayner, 2011). These commissions are often resource-intensive processes for which commissioners are selected, evidence is gathered, testimonies are heard, and the findings are reported or publicly released. Commissions do not always follow the same standards of due process or burden of proof as trials. This can make it easier for commissioners to gather evidence, but is often accomplished at the expense of the rights of the accused (Leebaw, 2008). Truth commission are commonly created to investigate broad patterns of systematic abuse across multiple individuals rather than single crimes or incidents. For example, in 1994, the Guatemalan government established a truth commission to investigate the alleged human rights violations connected to the ongoing Guatemalan National Revolutionary Unity (URNG) insurgency. Another example is the 1992 Commission of Inquiry initiated by the Ethiopian government, which investigated killings that took place in the Bedeno province. This commission was used to determine whether it was the government or Oromo Liberation Front rebels who were responsible for deaths in that area (BBC, 1992).
Reparations are compensation given to an individual or group who was harmed in some way during the conflict (Loyle & Binningsbø, 2017). Reparations have been broadly defined in the literature and can include things such as monetary reparations, property transfer, and skills training for individuals, and/or compensation to war-affected communities as a whole (De Grieff, 2006). Reparations can be offered to civilians, such as Uganda President Museveni’s fund to pay civilians compensation for cattle and other livestock stolen during the civil war with the Lord’s Resistance Army. Alternatively, reparations can be given directly to combatant groups. For instance, in 1983 in conjunction with an amnesty offer to the Shanti Bahini rebels, the Bangladeshi government sought to encourage the reintegration of rebel group members by offering a cash payment, a year’s supply of food rations, and five acres of land in exchange for an individual’s willingness to leave the insurgent group and return to civilian life. Rebel groups also offer reparations, such as when the CPI-Maoists in India provided compensation to the families of group members killed in the conflict.
Amnesty is a promise (or in some cases formal legislation) on the part of a party to the conflict to not prosecute or punish (alleged) violators of human rights or domestic laws now or in the future (Loyle & Binningsbø, 2017). Amnesty offers can be limited to a certain type of action, crime, or wrongdoer. For example, an amnesty could be restricted to only those rank-and-file members of a rebel group who did not commit crimes against civilians. An amnesty could also be unconditional in which no limits or restrictions are placed on the offer. Amnesty offers are often merely promises by the government or rebel group to refrain from prosecuting or punishing certain individuals, but in some cases amnesty agreements are codified as formal legislation. For example, the 2000 Amnesty Act in Uganda was passed as a Parliamentary Act.
A purge is the act of removing politicians, members of the armed forces or judiciary, or other members of society for their (alleged) collaboration with or participation in a conflict and limiting their influence accordingly (Loyle & Binningsbø, 2017). Purges are used to target suspected individuals or supporters of the opposing side, as well as for targeting an entire organization, such as the disbandment of the army. Purges commonly occur within the military or the armed wing of a rebel movement, but can also include the judiciary or civil service members such as university professors. In 1993, the Chadian head of state, Idriss Deby, dissolved the government intelligence service, the Center for Research and Coordination of Information (CRCR), and replaced it with a new security service. This move was purportedly to address the CRCR’s legacy of human rights abuses such as extrajudicial executions, disappearances, torture, and incommunicado detentions though human rights organizations alleged that the purge was designed to strengthen loyalty to Deby within the security forces (Amnesty International, 1993).
Exile or expulsion is a period of forced absence from the country (Loyle & Binningsbø, 2017). Exile is most commonly adopted by governments as rebel groups rarely have the strength and organizational capacity to remove individuals from their territory. For example, in 2002 the Angolan government deported foreigners accused of collaborating with the National Union for the Total Independence of Angola (UNITA) rebels. A total of 57 foreigners were deported between October 2001 and January 2002 for allegedly aiding UNITA (“Angola,” 2002).
Patterns of During-Conflict Justice Use
While there have been a number of data collections efforts on the use of transitional justice (e.g., Binningsbø, Loyle, Gates, & Elster, 2012; Olsen et al., 2010; Sikkink, 2011), our existing systematic knowledge of the use of during-conflict justice processes is drawn exclusively from the During-Conflict Justice dataset. This dataset is a global accounting of the use of transitional justice processes during armed conflict collected by Cyanne E. Loyle and Helga Malmin Binningsbø. The DCJ dataset catalogues justice processes across 204 internal armed conflicts in 108 countries between 1946 and 2011, as appear in the UCDP/PRIO Armed Conflict Dataset version 4-2012 (Gleditsch, Wallensteen, Eriksson, Sollenberg, & Strand, 2002; Themnér & Wallensteen, 2012). Similar to their previous work on post-conflict justice (Binningsbø, Loyle, Gates, & Elster, 2012), the During-Conflict Justice dataset codes justice processes that focus exclusively on crimes or wrongdoings related to the events of a particular conflict. The six forms of DCJ in the dataset represent the most dominant options for governments and rebel groups seeking to address abuses as discussed above (Elster, 2004): trials, truth commissions and commissions of inquiry, reparations, amnesties, purges, and exiles. The DCJ data includes a total of 2,205 during-conflict justice processes. Of the countries experiencing conflict, 76% used at least one form of DCJ and 65% initiated two or more processes.
Trials are by far the most common DCJ process with 1,383 trials recorded in the DCJ dataset. More than one-third of all conflict episodes in the DCJ dataset have at least one during-conflict trial process. Amnesties are also frequently offered while conflicts are ongoing (442 in the DCJ dataset), and the DCJ dataset includes a number of cases where multiple amnesties are offered in the same conflict. Truth commissions are relatively rare, with only 69 cases in the DCJ data. This is likely due to the amount of resources necessary to establish a functioning commission, resources that are likely rare during ongoing armed conflict.
The use of DCJ varies across time. In line with Kathryn Sikkink’s (2011) “justice cascade” argument, there has been a noticeable increase in the use of human rights trials beginning in the mid-1990s. The “justice cascade” suggests that individual accountability through the use of human rights trials is a growing international norm that has been increasing in influence since the Latin American political transitions of the 1980s. This trend has likely been buoyed by an overall global increase in accountability for human rights violations through the use of international criminal tribunals, regional human rights bodies, and the International Criminal Court (ICC). The DCJ dataset documents an increase in the use of trials that has grown at a rate that outpaces the total number of ongoing armed conflicts (Loyle & Binningsbø, 2017). Furthermore, work by Subotic (2012) on transitional justice suggests that an emerging “industry” around transitional justice may be driving, in part, domestic decision for accountability through the increases funding support as well as professionals lobbying for these types of interventions. While these studies both refer to transitional justice, there is reason to believe that justice decisions during armed conflict could be conditioned by similar factors (Rodman, 2015). For example, in Uganda there has been international pressure to hold rebels from the Lord’s Resistance Army (LRA) domestically accountable for human rights violations given pending indictments of LRA leaders from the ICC. Sikkink and Subotic’s findings raises questions about the ability of international norms to impact government and rebel behavior even while conflict is ongoing, a historically difficult time for governments and INGOs to have an impact (e.g., Neumayer, 2005).
Regime type is also found to have an effect on DCJ behavior. We would expect democratic governments, for example, to behave differently during conflict from autocratic regimes because the former is held accountable for its actions to a larger extent than the latter (Filson & Werner, 2007, p. 692; Reiter & Stam, 2002). Democratic governments with higher domestic audience costs, stronger international commitments, and a greater adherence to the rule of law are more likely to use DCJ potentially suggesting that these nonviolent strategies can be a critical tool for governments who do not wish to pursue a purely military approach or who face constraints in their ability to fight. Loyle and Binningsbø (2017) find that democratic governments (as defined by receiving a score of 6 and higher on the Polity scale) are more likely to use DCJ than anocracies and autocracies. While human rights trials are common across all regime types, they are particularly prevalent among democracies in conflict as we would expect from countries with a functioning judiciary. The countries with the highest numbers of trials in the DCJ dataset are consolidated democracies with strong and independent judiciaries such as Israel, the United Kingdom, and the United States. Interestingly, the DCJ data finds that rebels are also more active users of DCJ when fighting against democracies than non-democracies, suggesting that democratic norms of accountability may be transferable beyond the government itself (Loyle & Binningsbø, 2017).
Arguably one of the most interesting patterns from the DCJ data is the relationship between rebel strength and DCJ use. Using the Non-State Actor dataset (Cunningham, Gleditsch, & Salehyan, 2009) to measure the relative strength of the rebel group in relation to the government, Loyle and Binningsbø (2017) find that as the balance of power shifts in favor of the rebel group in a given conflict year, government use of DJC decreases while rebel use increases. This suggests that government and rebel use of DCJ is likely reflective of the overall capacity of these groups as well as strategic decisions about how the groups choose to prioritize (potentially limited) resources. Weaker governments may not have the resources to pursue judicial institutions and/or they may choose to put their limited resources toward advancing their cause militarily. Rebel groups appear most willing to use DCJ as their strength increases vis-à-vis the government, suggesting that only stronger rebels may have the capacity to implement these institutions.
The type of DCJ that each group uses also varies across measures of relative capacity (Loyle & Binningsbø, 2017). For example, strong governments are more likely to use human rights trials over amnesties; however, this pattern shifts for weak governments who are fighting stronger rebels. It may be when they are not strong enough to win the conflict, governments choose more conciliatory strategies as an attempt to appease rebel challenges and/or signal a willingness to negotiate. Rebel groups demonstrate a different calculus to government actors. For example, the use of both trials and amnesty offers increase as rebels gain strength vis-à-vis the government. This suggests that the use of DCJ is a mark of rebel capacity whereby only stronger rebel groups are able to institutionally perform trials and/or credibly offer amnesty. For example, the Maoist rebels in Nepal held and governed a large territorial area during the conflict. They formed People’s Courts, which were used to try alleged criminals for everyday offenses, as well as alleged government supporters and others for war-related charges. These courts would not have been possible without a high level of capacity in certain areas of Nepal (Sivakumaran, 2009).
These patterns of DCJ use reflect the overall ability of the government or rebel group to implement a process, but also the strategic calculus whereby the group chooses to use resources to pursue a nonviolent strategy instead of simply exercising military means. While the DCJ dataset establishes patterns of DCJ use across certain structural and strategic conditions, we still have a limited understanding of the rationale behind the use of DCJ processes by both government and rebel actors. Below I turn to the literature on transitional justice use and combatant behavior during armed conflict in order to better understand the rationale for implementing during-conflict justice. While the literature on transitional justice adoption focuses exclusively on the use of these institutions following political transitions or the termination of conflict, implications from these theories can inform our current understand of government and rebel behavior during armed conflict. The integration of the transitional justice and conflict studies literature is essential for expanding our understanding of when and why DCJ is used as well as exploring a broader range of actor behavior during armed conflict.
Theorizing the Use of During-Conflict Justice
Much of our understanding about the use of transitional justice processes is derived from work on the political transitions during the third wave of democratization (Huntington, 1991). This literature, however, may not be best suited for understanding the motivations behind the use of during-conflict justice by governments and rebels engaging in violence. First, despite the breadth of the transitional justice research, it has derived its theoretical expectations solely from those situations in which a major shift in power has taken place. The during-conflict period represents a political space in which a power shift has yet to take place, if it will occur at all. In other words, political transitions and post-conflict periods may not have much in common with the political situations during armed conflicts, which will likely impact the motivations for the use of justice processes under these different conditions. Second, the transitional justice literature has historically failed to engage with the dynamic literature in conflict studies on state and rebel behavior. Though there has been little theoretical work in conflict studies dedicated specifically to understanding when and why justice processes are used during armed conflict, I argue that valuable hypotheses can be derived by integrating the existing transitional justice and conflict studies literature.
Below I turn to an overview of the extant transitional justice literature for theorizing the motivations and conditions that make the use of justice processes more likely and incorporate the conflict studies literature on state and rebel behavior to explore the ways in which this work can help to explain the use of DCJ. This section uses the transitional justice literature on process adoption and conflict studies research on belligerent behavior during armed conflict to propose some preliminary hypotheses for understanding DCJ use. In particular, I build on work from the transitional justice and conflict studies literature to focus on four categories of explanatory factors: (1) the relative strength of combatant groups, (2) international and domestic pressures, (3) the strategic motivations of combatants, and (4) resources and capacity constraints.
Balance of Power
Elite strength explanations in the transitional justice literature focus on the balance of power between entering and exiting elites for understanding the conditions under which justice process are most likely to be implemented (Welsh, 1996). These theories argue that the greater the relative (political and military) strength of the old government and its elites compared with the incoming government, the less likely the new government will be to purse “harsh” forms of justice or accountability (Huntington, 1991). According to this line of argument, old elites (including members of the military, security forces, judiciary, etc.) are able to block the use of justice process by threatening political resistance, violence, or taking back power if justice is pursued. This pattern is particularly obvious following negotiated political transitions in which exiting elites were offered amnesty in exchange for a peaceful political transition, often to democratic elections.
Similarly, in the adoption of domestic justice processes during armed conflict, the relative balance of power between the government and rebel groups is likely to be an important determinant of a group’s decision to use DCJ. In the conflict studies literature, the belligerents’ relative capabilities and the marginal utility for fighting are important indicators of combatant behavior (Buhaug, Gates, & Lujala, 2009; Cunningham, Gleditsch, & Salehyan, 2009; Goemans, 2000). In other words, the relative capacity of a group impacts the strategy, military or otherwise, that the group is likely to pursue. As demonstrated above, patterns from the DCJ dataset suggest that relative capabilities or balance of power arguments could be an important determinant in understanding when and why combatants choose to advance different DCJ strategies.
International and Domestic Pressures
A second category of explanatory factors focuses on domestic and international pressures to adopt accountability measures such as transitional justice. Domestic and international arguments for transitional justice adoption, such as Kathryn Sikkink’s “justice cascade” argument outlined above, focus on civil society pressure for accountability. Through a global analysis of human rights trials from 1980 through 2005, Sikkink (2011) argues that the use of human rights trials has been spreading in large part due to international pressures and a normative shift toward individual accountability for human rights violations. Kim (2012) argues that domestic civil society pressures are important for understanding when transitional justice will be put in place. In his case study of the Jeju Commission in South Korea, Kim (2012) finds that local advocacy was “the single most important factor in the process of seeking transitional justice” (p. 732).
While it is likely that international and domestic pressure for accountability are constrained during times of war, the findings from the DCJ dataset reported above suggest that regime type plays an important role in the decision of a government or rebel group to use DCJ. Countries with a history of rule of law, such as consolidated democracies, appear more likely to continue those institutional forms during times of conflict. For example, the United Kingdom frequently employed human rights trials and commissions of inquiry during the troubles in Northern Ireland though the independence and fairness of these processes was often challenged. Furthermore, the conflict studies literature suggests that the relationship between a group and its constituents is likely to impact conflict behavior (e.g., Mampilly, 2011). Groups with mass support, for example, may behave differently than those groups where support is concentrated in a particular area or with a particular ethnic group, or where support is limited. This suggests that pressures to adopt DCJ processes may be greater than simply the accountability pressures at work in a democracy. While there is some evidence and existing literature to suggest that accountability, both domestically and internationally, is likely to drive behavior during conflict, other findings in the human rights literature suggest that under certain conflict conditions domestic and international pressures are likely to be much less effective (Hafner-Burton & Tsutsui, 2007; Reiter & Stam, 2002).
Strategic Motivations for DCJ Use
Theories of accountability generally advance the proposition that domestic and international audiences are advocating for justice strategies that will promote human right and the rule of law. More recent literature on the use of transitional justice, however, has focused on the ways in which these processes are used to accomplish political ends distinct from accountability and the advancement of human rights (Loyle & Davenport, 2016). These arguments contend that governments choose domestic justice policies that will allow them to maintain office, conceptualizing transitional justice as a commodity that can be traded for other political goods (Grodsky, 2010) to advance political and economic goals (Pion-Berlin, 1994). Subotic (2009) finds that in the former Yugoslavia compliance with the International Criminal Tribunal was done almost exclusively with an eye toward courting the European Union rather than with an honest commitment to accountability for war crimes. Loyle (2016) finds that transitional justice is often an effective tool for promoting domestic political consolidation and order for new elites. In a time of post-conflict or political transition where a government often suffers from security, resource, and legitimacy challenges, a well-designed transitional justice process can often go far in addressing these challenges and strengthening the new group in power. On the furthest end of the spectrum, Loyle and Davenport (2016) find that transitional justice can be used to advance “unjust goals” such as the promotion of denial and forgetting, the consolidation of an authoritarian regime, and an increase in violence and state repression.
We would expect similar patterns to emerge in the use of justice during armed conflict. For example, in his study of rebel groups, Mampilly (2011) finds that the pattern of rebel governance is impacted by the strategic objective of the group. In other words, the strategy that the group is trying to employ during the conflict impacts how that group chooses to govern. For example, in his discussion of the case of the LTTE in Sri Lanka, Mampilly (2011) details the creation of a judicial system that was able to assist in conflict-related judicial matters as well as generate revenue through enforcing an annual property tax (p. 116). Following from this reasoning, justice institutions used during conflict are likely related to the bargaining process ongoing between the government and its challengers designed to impact the outcome of the conflict itself (Fearon, 2004).
There are a variety of ways to think about categorizing DCJ strategic objectives. One distinction, common in the transitional justice literature, is to think about justice processes in terms of retributive and restorative institutions (Lambourne, 2009). Retributive processes, such as trials, exiles and purges, are designed to hold individuals or groups accountable for wrongdoing and often to punish them for this behavior, being more coercive in nature. Restorative processes, such as truth commissions and reparations (and sometimes amnesties), are seen in this framework as an attempt to restore social cohesion to a divided society by examining and acknowledging wrongdoings, offering concessions, demonstrating a group’s intention to reconcile and ultimately expressing conciliatory rather than coercive aims. Following from this framework, it could be argued that certain DCJ processes are implemented to advance coercive strategies in which the government or rebel group attempts to identify, isolate, and punish challengers, such as when Baburam Bhattarai, a rebel leader of the Communist Party of Nepal, was accused of trying to divide the rebel group and purged by his fellow comrades in 2005. Conciliatory DCJ would therefore be those mechanisms aimed at offering concessions, reconciling a divided population or addressing a group’s grievances. An example of this is the “gesture of peace and reconciliation” shown by the South African administration in 1985 when it pardoned 22 SWAPO (South West Africa People’s Organization) rebels who had been convicted on charges of terrorism and were serving sentences ranging from 7 years to life imprisonment. Rebel groups also send conciliatory signals. For example, the CPI-Maoists in India offered compensation to the families of group members killed during the conflict. This compensation included monetary payments to widows as well as school fees for children (Indo-Asian News Service, 2008).
Resource and Capacity Arguments
Finally, the capacity that a group has for implementing a transitional justice or DCJ process will impact the processes that are used. Theories of material resources in conflict studies argue that the amount of resources available to a rebel organization, for example, determines the strategies that these groups pursue (Weinstein, 2006). The resources required for adopting different DCJ processes range from very little to a substantial amount of financial and organizational capital. Truth commissions, for example, are generally very extensive institutions that require a higher degree of resources and capacity than, say, a purge. Reparations are often expensive and necessitate the financial strength to reimburse individuals or groups for damages. Individual trials require relatively low capacity if a functioning judicial sector is already in place, while amnesties can require nothing but an oral declaration. This calculus is impacted by a new stream of international support through foreign government funding and NGOs (Muck & Wiebelhaus-Brahm, 2016).
Organizational as well as resource capacity is likely to impact DCJ choices during conflict. Staniland (2014) argues that rebel behavior can be best explained through a unified theory of organizational structure. He identifies “integrated organizations” as those rebel groups that have leadership unity and discipline as well as strong local control on the group. It is these groups that we would expect to be capable of implementing institutions such as during-conflict justice processes.
The Impacts of DCJ Use on Armed Conflict
Research into the use of DCJ is in its infancy; however, existing work on post-conflict and transitional justice would lead to theoretical expectations regarding the ability of DCJ to impact conflict termination and duration. Work by Olsen and colleagues (2010), for example, would lead us to believe that transitional justice processes would have a positive impact on a government or rebel group’s future human rights record. Others point out a potentially inherent dilemma between the use of justice and the pursuit of peace (Snyder & Vinjamuri, 2003/2004). Known as the “peace vs. justice debate,” scholars argue that transitional justice can serve as an impediment to pursing lasting peace (e.g., Akhavan, 2001; Leebaw, 2008; Rodman, 2014). DCJ could also impact the timeline for or the way in which the conflict is terminated.
The DCJ dataset offers preliminary support for some of these claims. Loyle and Binningsbø (2017) find evidence that adopting DCJ impacts the intensity of the conflict as measured by the overall number of battle deaths (Lacina & Gleditsch, 2005) in the year following the DCJ implementation. They find that when the government implements a DCJ process, the conflict is somewhat more likely to become less violent. This finding is particularly strong when a government uses a human rights trial, amnesty, reparation, or purge (Loyle & Binningsbø, 2017, p. 23). Specifically, Loyle and Binningsbø (2017) find that when “the previous conflict year had at least one government-initiated DCJ process, there are noticeable changes in intensity: 38% of the 341 conflict years with government DCJ see a reduction in battle deaths the following year.” There is a similar pattern for those DCJ processes initiated by rebel groups (Loyle & Binningsbø, 2017, p. 23).
Loyle and Binningsbø (2017) also find that whether or not a DCJ is adopted as well as what type of DCJ is put in place impacts how a conflict is terminated. Using Kreutz’s (2010) UCDP Conflict Termination Dataset, Loyle and Binningsbø (2017) find that for armed conflicts where the government initiated at least one DCJ process, the likelihood of the conflict ending in a negotiated settlement doubles compared to conflicts without any government DCJ. The pattern is similar, but not as strong, for those conflicts with and without a rebel-initiated DCJ process. Based on this relationship, the use of DCJ seems to be a viable strategy for those governments interested in entering into a negotiated settlement. Loyle and Binningsbø (2017) find that the overall number of DCJ processes increases toward the end of a given conflict, often occurring simultaneously with a reduction in conflict intensity. This finding suggests that governments, and potentially rebel groups, may use DCJ with the aim of ending an armed conflict.
Tools such as human rights trials, truth commission, amnesty agreements and the like, are studied in periods when a power transition has taken place that allows (or not) for accountability and human rights to be pursued. However, important information is revealed about governments and rebel behavior when we examine similar institutions during ongoing armed conflict. The initial findings above suggest that a deeper understanding of when and why government and rebel groups use DCJ can help us better understand overall patterns of conflict behavior and help to broaden our understanding of group objectives and goals. In this way, DCJ is part of the emerging research agenda within conflict studies that focuses on the rationale behind combatant behavior during armed conflict.
The creation of the DCJ dataset is an important and useful first step in this analysis; however, more work is needed to establish the motivation behind DCJ use for governments and their challengers. Future research should take into consideration the important variation across DCJ processes in terms of both the type of process that is put in place and the characteristics of the process itself. For example, when do governments choose to pursue a strategy of trials versus one of amnesty? Under what conditions do governments elect to switch between both strategies, as in the case of Uganda and its fight against the Lord’s Resistance Army? The conflict studies literature offers us some insight into a government’s decisions regarding coercive versus conciliatory strategies, but these claims must be tested against existing data on the use of DCJ.
Variations in the characteristics of the process itself can be used to establish important nuance in this theorizing. For example, trials designed to solely target the opposition are likely to provide a different signal than those engaged in addressing all wrongdoings on both sides of the conflict (Loyle & Appel, 2011). A government-initiated amnesty that grants amnesty solely to the government’s own troops sends a different signal than an amnesty given to rebels. In the first case, the government likely uses amnesty to strengthen the resolve of its own forces, while in the latter case the amnesty appears to be a genuine attempt to reconcile or negotiate on the part of the government. In this way the degree to which a DCJ process signals coercive or conciliatory aims is a product of specific characteristics of the process itself.
Preliminary findings regarding the impacts that institutional adoption can have on the course of the conflict suggests that we should strengthen our efforts to understand the variety of nonviolent tactics that governments and rebels can employ while conflict is ongoing. This work offers a promising avenue of new insights into how to understand combatant behavior during conflict, how to interpret signals of intentions, and ultimately the types of policies that can be put in place to help bring armed conflict to a desired end.
Akhavan, P. (2001). Beyond impunity: Can international criminal justice prevent future atrocities? The American Journal of International Law, 95(1), 7–31.Find this resource:
Amnesty International (1993). CHAD: Inquiry reveals widespread army atrocities in early 1993 in Southern Chad's Logone Oriental prefecture. AI Index: AFR 20/20/93.Find this resource:
Angola deports rebel-related foreigners. (2002, February 8). Xinhua General News Service. LexisNexis Academic.Find this resource:
Arthur, P. (2009). How “transitions” reshaped human rights: A conceptual history of transitional justice. Human Rights Quarterly, 31(2), 321–367.Find this resource:
BBC Summary of World Broadcasts (1992, May 8). Horn of Africa in brief; commission of inquiry begins investigation into killings in Eastern Ethiopia.Find this resource:
Binningsbø, H. M., Loyle, C. E., Gates, S., & Elster, J. (2012). Armed conflict and post-conflict justice, 1946–2006: A dataset. Journal of Peace Research, 49(5), 731–740.Find this resource:
Buhaug, H., Gates, S., & Lujala, P. (2009). Geography, rebel capability, and the duration of civil conflict. Journal of Conflict Resolution, 53(4), 544–569.Find this resource:
Chenoweth, E., & Stephan, M. J. (2011). Why civil resistance works: The strategic logic of nonviolent conflict. New York: Columbia University Press.Find this resource:
Crowley, T. W. (1991). Guerrillas and revolutions in Latin America: A comparative study of insurgents and regimes since 1956. Princeton, NJ: Princeton University Press.Find this resource:
Cunningham, D. E., Gleditsch, K. S., & Salehyan, I. (2009). It takes two: a dyadic analysis of civil war duration and outcome. Journal of Conflict Resolution, 53(4), 570–597.Find this resource:
De Grieff, P. (Ed.). (2006). The handbook of reparations. Oxford: Oxford University Press.Find this resource:
Eck, K., & Hultman, L. (2007). One-sided violence against civilians in war: Insights from new fatality data. Journal of Peace Research, 44(2), 233–246.Find this resource:
Elster, J. (2004). Closing the books: Transitional justice in historical perspective. Cambridge, U.K.: Cambridge University Press.Find this resource:
Fearon, J. D. (2004). Why do some civil wars last so much longer than others? Journal of Peace Research, 41(3), 275–301.Find this resource:
Filson, D., & Werner, S. (2007). Sensitivity to costs of fighting versus sensitivity to losing the conflict. Implications for war onset, duration, and outcomes. Journal of Conflict Resolution, 51(5), 691–714.Find this resource:
Fortna, V. P. (2004). Does peacekeeping keep peace? International intervention and the duration of peace after civil war. International Studies Quarterly, 48(2), 269–292.Find this resource:
Gleditsch, N. P., Wallensteen, P., Eriksson, M., Sollenberg, M., & Strand, H. (2002). Armed conflict 1946–2001: A new dataset. Journal of Peace Research, 39(5), 615–637.Find this resource:
Goemans, H. E. (2000). War and punishment: The causes of war termination and the First World War. Princeton, NJ: Princeton University Press.Find this resource:
Grodsky, B. K. (2010). The costs of justice: How new leaders respond to previous rights abuses. Notre Dame, IN: University of Notre Dame Press.Find this resource:
Hafner-B., Emilie, M., & Tsutsui, K. (2007). Justice lost! The failure of international human rights law to matter where needed most. Journal of Peace Research, 44(4), 407–425.Find this resource:
Hayner, P. B. (2011). Unspeakable truths: Facing the challenge of truth commissions. New York: Routledge.Find this resource:
Huntington, S. P. (1991). The third wave: Democratization in the late twentieth century. Norman: University of Oklahoma Press.Find this resource:
Indo-Asian News Service. (2008, January 8). Maoists in Jharkhand introduce compensation for killed cadre.Find this resource:
Kim, H.-J. (2012). Structural determinants of human rights prosecutions after democratic transition. Journal of Peace Research, 49(2), 305–320.Find this resource:
Kreutz, J. (2010). How and when armed conflicts end: Introducing the UCDP conflict termination dataset. Journal of Peace Research, 47(2), 243–250.Find this resource:
Kritz, N. (Ed). (1995). Transitional justice: How emerging democracies reckon with former regimes. Washington, DC: United States Institute of Peace.Find this resource:
Lacina, B., & Gleditsch, N. P. (2005). Monitoring trends in global combat: A new dataset of battle deaths. European Journal of Population, 21(2–3), 145–166.Find this resource:
Lambourne, W. (2009). Transitional justice and peacebuilding after mass violence. International Journal of Transitional Justice, 3(1), 28–48.Find this resource:
Leebaw, B. A. (2008). The irreconcilable goals of transitional justice. Human Rights Quarterly, 30(1), 95–118.Find this resource:
Loyle, C. E. (2016). Transitional justice and political order in Rwanda (Working paper).Find this resource:
Loyle, C. E. & Appel, B. (2011). Peace and/or justice: Post-conflict justice and conflict reoccurrence. Presented at the American Political Science Association Annual Meeting, Seattle, WA.Find this resource:
Loyle, C. E., and Binningsbø, H. M. (2017). Justice during armed conflict: A new dataset on government and rebel strategies. Journal of Conflict Resolution, 49(5).Find this resource:
Loyle, C. E., & Davenport, C. (2016). Transitional injustice: Subverting justice in transition and post-conflict societies. Journal of Human Rights, 15(1), 126–149.Find this resource:
Mampilly, Z. C. (2011). Rebel rulers: Insurgent governance and civilian life during war. Ithaca, NY: Cornell University Press.Find this resource:
Minow, M. (2001). Between vengeance and forgiveness. Boston: Beacon Press.Find this resource:
Muck, W., & Wiebelhaus-Brahm, E. (2016). External transitional justice funding: Introducing a new dataset. Journal of Peacebuilding & Development, 11(2), 66–71.Find this resource:
Neumayer, E. (2005). Do international human rights treaties improve respect for human rights? Journal of Conflict Resolution, 49(6), 925–953.Find this resource:
O’Donnell, G., & Schmitter, P. C. (1986). Transitions from authoritarian rule: Tentative conclusions about uncertain democracies. Baltimore: The Johns Hopkins University Press.Find this resource:
Olsen, T., Payne, L. A., & Reiter, A. G. (2010). Transitional justice in balance: Comparing processes, weighing efficacy. Washington, DC: United States Institute of Peace Press.Find this resource:
Peskin, V. (2009). Caution and confrontation in the International Criminal Court’s pursuit of accountability in Uganda and Sudan. Human Rights Quarterly, 31, 655–691.Find this resource:
Pion-Berlin, D. (1994). To prosecute or to pardon? Human rights decisions in the Latin American southern cone. Human Rights Quarterly, 16(1), 105–130.Find this resource:
Quinn, J. (2016). Whither the transition of transitional justice. Interdisciplinary Journal of Human Rights Law, 8(2013–2014).Find this resource:
Reiter, D., & Stam, A. C. (2002). Democracies at war. Princeton, NJ: Princeton University Press.Find this resource:
Rodman, K. A. (2009). Is peace in the interests of justice: The case for broad prosecutorial discretion at the International Criminal Court. Leiden Journal of International Law, 22(1), 99–126.Find this resource:
Rodman, K. A. (2014). Justice as a dialogue between law and politics: Embedding the International Criminal Court within conflict management and peacebuilding. Journal of International Criminal Justice, 12(3), 437–469.Find this resource:
Rodman, K. A. (2015). Intervention and the justice cascade: Lessons from the special court for Sierra Leone on prosecution and civil war. Human Rights Review, 16(1), 39–58.Find this resource:
Sikkink, K. (2011). The justice cascade: How human rights prosecutions are changing world politics. New York: W. W. Norton & Co.Find this resource:
Sivakumaran, S. (2009). Courts of armed opposition groups: Fair trials or summary justice? Journal of International Criminal Justice, 7(3), 489–513.Find this resource:
Slantchev, B. (2003). The principle of convergence in wartime negotiations. American Political Science Review, 97(4), 621–632.Find this resource:
Snyder, J., & Vinjamuri, L. (2003/2004). Trials and errors: Principles and pragmatism in strategies of international justice. International Security, 28(3), 5–44.Find this resource:
Staniland, P. (2014). Networks of rebellion: Explaining insurgent cohesion and collapse. Ithaca, NY: Cornell University Press.Find this resource:
Subotic, J. (2009). Hijacked justice. Ithaca, NY: Cornell University Press.Find this resource:
Subotic, J. (2012). The transformation of international transitional justice advocacy. International Journal of Transitional Justice, 6(1), 106–125.Find this resource:
Themnér, L., & Wallensteen, P. (2012). Armed conflicts, 1946–2011. Journal of Peace Research, 49(4), 565–575.Find this resource:
Waddell, N., & Clark, P. (Eds). Courting conflict? Justice, peace and the ICC in Africa. London: Royal African Society, 2008.Find this resource:
Walter, B. F. (2006). Building reputation: Why governments fight some separatists but not others. American Journal of Political Science, 50(2), 313–330.Find this resource:
Weinstein, J. (2006). Inside rebellion. Cambridge, U.K.: Cambridge University Press.Find this resource:
Welsh, H. (1996). Dealing with the communist past: Central and East European experiences after 1990. Europe-Asia Studies, 48(3), 413–428.Find this resource:
Zalaquett, J. (1995). Confronting human rights violations committed by former governments: Principles applicable and political constraints. In N. J. Kritz (Ed.), Transitional justice: How emerging democracies reckon with former regimes. Washington, DC: United States Institute of Peace.Find this resource:
(1.) Of note, in this article I focus specifically on the use of domestic justice processes during armed conflict. There are, however, a number of other prominent types of judicial interventions that can be used while conflict is ongoing. For example, international criminal tribunals, such as the International Criminal Tribunal for the Former Yugoslavia, have begun their work while conflict is ongoing. Recent indictments of the International Criminal Court in Uganda and Sudan have raised the issue of the impact that human rights trials can have on the course of a given conflict (Peskin, 2009; Rodman, 2009, 2014; Waddell & Clark, 2008).