Pursuing Accountability for Atrocities after Conflict: What Impact on Building the Rule of Law?

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INTRODUCTION

In countries ravaged by widespread violence, the trauma does not end when the guns fall silent. On the contrary, atrocities have cast a long shadow in places such as the Balkans, where brutal massacres, mass rapes, and ethnic cleansing were regular features of war; in Rwanda, where a devastating genocide killed hundreds of thousands of people; and in Sierra Leone, where the civil war was marked by forced recruitment of child soldiers, rapes and murders, and the gruesome mutilation of civilians. In Afghanistan, Iraq, East Timor, and many other societies, severe abuses have also left deep pain and trauma in their wake.

States that attempt to end periods of bloodly conflict by intervention often focus on reestablishing security, reconstructing governance institutions, and reforming the justice system. While such efforts are crucial for promoting the rule of law, they are rarely sufficient to grapple with the complex legacy of past abuses. As a result, unless leaders in war-torn societies confront the difficult issue of accountability for past atrocities, they run the risk that new structures of law will be built upon shaky foundations.

Although nothing can undo the suffering of those who have endured violent abuse, ensuring that perpetrators of atrocities face some reckoning can be critical to moving forward on both an individual and community level in societies recovering from violent conflict. Ensuring some measure of accountability may help victims come to terms with the past and can also help signal to all members of post-conflict societies that, henceforth, such abuses will not be permitted to recur. Just as important, the process of pursuing accountability for atrocities can reinforce broader efforts to reform the justice system.

All this is far more easily said than done, however. In the wake of violent conflicts, national justice systems, if they function effectively at all, usually have only limited ability to render fair justice. Indeed, in many post-conflict societies, citizens view existing legal institutions skeptically because of corruption, systematic bias, association with abusive past regimes, failure to effectively address past grievances, or severe shortfalls in human and other resources. Moreover, those who have committed atrocities may still wield political power or exert influence behind the scenes. Even when criminal trials are initiated against perpetrators, those facing trial and their political allies may view the proceedings as illegitimate forms of "victor's justice." In some situations, accountability mechanisms may actually trigger further violence.

Meanwhile, it is not always clear how victims can best be served. Although some victims demand trial and punishment of perpetrators, others place greater emphasis on public acknowledgement of their suffering and on reparations or some tangible form of assistance. In such complex situations, both international interveners and domestic leaders--confronted by limited resources and other urgent reconstruction challenges--inevitably must struggle to balance justice, reconciliation, and other compelling goals.

Yet the fundamental issue of accountability--and its relationship to the rule of law--cannot be ignored. Establishing a credible and functioning justice system that serves the goals of the rule of law is central to moving forward after violent conflict. Even more fundamentally, strengthening the rule of law depends on building people's confidence that they will be protected from predatory state and non-state actors, that they can resolve disagreements fairly and reliably without resorting to violence, and that legal and political institutions will protect rather than violate basic human rights. Only then is the rule of law likely to take root: a state of affairs in which most people, most of the time, choose to resolve disputes in a manner that is consistent with fair rules and fundamental human rights norms, in which modern legal institutions and laws exist, and there is a widely-shared cultural and political commitment to the values underlying those institutions and laws. …