War, law and post-conflict justice
Q. Between August 1994 and November 1995, what did you and the other civilians do to avoid snipers?
A. Mostly we ran.1
On 5 February 1994 in Sarajevo’s Markale market, men, women and children gathered among the busy stalls in an attempt to buy groceries and other necessities that were increasingly scarce in the war-torn city. Although this once normal daily task was now fraught with risk and danger due to the sniping and shelling that characterized the violence of the siege of the city during the early 1990s, the shoppers had presumed they were protected, at least in part, by the high-rise buildings surrounding the market place. Tragically they were wrong, and when a mortar shell hit the crowded market place 68 persons were killed and many more seriously injured (Fish, 2004).
Nearly 10 years later in Trial Chamber I at the International Criminal Tribunal for the former Yugoslavia (ICTY/Tribunal), the Prosecution in the case of The Prosecutor v. Stanislav Galić spoke of this and other atrocities committed during the siege of Sarajevo as exemplifying the ‘darker dimension’ of armed conflict.2 In the words of the Prosecution, this darker dimension comprises the deliberate and intentional targeting of civilians and civilian populations. It refers to the blatant disregard for the distinction between civilians and military personnel as legitimate targets of attack by the perpetrators of violence, and the protections afforded to civilians in accordance with the rules and principles of international humanitarian law. In Sarajevo, thousands of civilians of both sexes and all ages, including children and the elderly, were unlawfully killed during the siege, with many more sustaining serious injuries and harm.3 As the judgement of this case sets out, civilians ‘were attacked while attending funerals, while in ambulances, trams, and buses, and while cycling. They were attacked while tending gardens, or shopping in markets, or clearing rubbish in the city’.4 However, in the case of Galić the fundamental question of how to identify persons as civilian, and so as civilian victims of this violence, was an ongoing and contentious issue. So too was the scope of the protective rules of international humanitarian law applicable to this state of hostilities. As the adjudication of this and other war crimes cases emphasize, the very notions of ‘civilian’, ‘protection’ and ‘redress’ that underpin the current practices of international criminal justice continue to evoke both definitional difficulties and analytic contestation. For this reason, it remains unclear how the practices of international criminal justice work to address and redress the civilian victims of conflict situations.
Civilian victimization in conflict situations has a long and complex history. Conflicts past and present, both internal and international in character, evidence that civilians suffer harm and injury from the violence of hostilities. It is now commonly recognized that acts of civilian victimization often arise from explicit policies implemented and approved by states and other armed groups (Downes, 2006; Slim, 2007). This form of violence must, therefore, be understood to comprise a ‘wartime strategy that targets and kills (or attempts to kill) noncombatants’ (Downes, 2006: 156). The suffering endured by civilians does not solely arise from the ‘legitimate’ violence of conflict situations, as the conduct of World War II and the more recent conflicts of Bosnia and Rwanda among many others attest. Civilian casualties are not ‘produced’ only as an aspect of unfortunate but inevitable collateral damage or through the unintentional actions of combatants. Rather, civilians are subject to direct and intentional attacks by combatants and other armed elements that breach the rules of international humanitarian law.5 While the prevalence and patterns of their victimization varies between conflicts, civilians often constitute a significant proportion of the casualties of its conduct (Lovell, 2012: 2).6 Their harms frequently arise from the perpetration of unlawful, and not lawful, acts of violence.
This book asks how mechanisms of transitional justice construct persons as civilians when their harms become subject to the judicial processes of adjudication and judgement. It examines (1) how to understand civilians as a social and legal category of persons; and (2) how legal rules and practices shape victim identities and protections in relation to these persons. Broadly put, the contemporary rules of international humanitarian law define a civilian as a ‘non-combatant’ (Dinstein, 2004).7 Civilians are persons who are not members of the armed forces or a military organization and so do not directly participate in hostilities. In this seemingly ‘neutral’ and straightforward formulation of personhood, any person who is not a combatant holds the status of civilian in a situation of conflict. However, this study shows that the legal construction of persons or collectivities as ‘civilian’ does not figure as a fixed process, concept or designation. Employing an interdisciplinary framework that draws on conceptual and methodological insights from transitional justice and socio-legal scholarship, it illustrates that particular notions of group membership and social characteristics are drawn upon during the processes of constructing civilian identities and protections that may prevent particular groups of civilian victims from having their harms recognized as a breach of the law.
Civilians can, of course, figure as the perpetrators of the violence of armed conflict as well as its victims. The so-called ‘civilianization’ of armed conflict extends beyond recognition of the express targeting of civilians to consideration of the increasingly integral functions of civilian personnel and private contractors in the organization and administration of armed violence (Wenger and Mason, 2008). However, this analysis focuses upon the constitution of civilian identities, and of civilian victim identities in particular. In so doing, it contributes to the study of the relationship between mechanisms of transitional justice and the victims of conflict. It seeks to provide a more nuanced account of the specificity of understanding civilians and military personnel as victimized collectivities recognized by law than that offered by existing scholarship.
Mechanisms of transitional justice have increasingly been called upon to provide ‘redress’ to the victims of situations of conflict and mass atrocity. Most often focused on providing a more inclusive role for victims in legal processes, this growing concern with victim redress has largely been undertaken through the implementation of new frameworks of victim protection, participation and reparations. However, underpinning these measures is a fundamental, but surprisingly under-analyzed, process – that of ‘constructing “victims”’ of conflict situations (Ewald, 2006: 173). Through the cases and charges that are brought before them, war crimes trials often have to identify whether persons and collectivities constitute the victims of unlawful conduct. Dependent upon the nature of the charges brought by the Prosecution, they assess the often contentious question of their civilian or military status at the time of their injuries and pronounce upon the lawful or unlawful character of its perpetration. In this way, war crimes trials provide an authoritative account of which persons figure as ‘protected persons’ under the rules of humanitarian law. They are significant for their characterization of which civilian-military interactions, and which military-military interactions, become subject to legal adjudication and judgement. The war crimes trials of mechanisms of transitional justice thus contribute to the construction of an authoritative account of the prevalence and patterns of civilian victimization during a conflict situation, and the types of conduct and casualties that are understood to deserve the address and redress of a court of law.
However, the question of how civilians are understood to constitute, and are constituted as, a category of protected persons in law has not been the subject of sustained scholarly analysis. Beyond doctrinal analyzes of the principle of ‘non-combatant immunity’ or the protective qualities of the frameworks of international humanitarian law and international criminal law more broadly,8 there are few studies that consider how civilians figure as a distinct collectivity of victimized persons recognized by the law. Instead, existing analyses that focus on civilians as a distinct category of persons typically examine the prevalence of civilian victimization during the so-called ‘new wars’ of the 1990s (Kaldor, 2001; Münkler, 2005) or present evidence of its broader historical perpetration (Downes, 2008; Hartigan, 1982; Slim, 2007). Attempts have been made to discern the number of civilian deaths in conflicts past and present (Eck and Hultman, 2007; Eckhardt, 1989; Seybolt et al., 2013; Zwierzchowski and Tabeau, 2010), and the morality, motives or justifications given for killing civilians in war (McKeogh, 2002; Nathanson, 2012; Primoratz, 2012; Slim, 2007; Valentino et al., 2004). Of the few analyses that do engage with the construction of civilian identities, Charli Carpenter’s “Innocent Women and Children” (2006) and Kinsella’s Securing the Civilian (2005) consider the gendered constitution of this category of persons. However, they focus upon transnational advocacy networks and the specificity of the terms of the principle of distinction, respectively, and not the legal processes of adjudication and judgement.
In field of transitional justice scholarship, a number of studies consider the relationship between mechanisms of transitional justice and the victims of conflict situations (Dembour and Haslam, 2004; Dixon and Tenove, 2013; Hodžić, 2010; Nettelfield, 2010; O’Rourke, 2013; Robins, 2013; Sriram et al., 2013; Stover, 2005; Weinstein and Stover, 2004). However, these studies tend to either conceive of victims as a homogenous group of persons, or focus on their gendered or ethnic identities.9 For example, scholars have considered the varying views of persons with particular ethnic identifications with mechanisms of transitional justice (Biro et al., 2004; Kutnjak Ivković and Hagan, 2013; Saxon, 2005). They have also examined the gendered dimensions of reparations (Rubio-Marin, 2006), and the representation of victims in relation to their gendered identities (Campbell, 2007; Franke, 2006). Yet the identification of the victims of armed conflict as either civilian or military is also often integral to the adjudication and judgement of the crimes of war. It shapes the legitimacy of the actions of these different categories of person amid the hostilities, and of the protections afforded to them in accordance with the framework of international humanitarian law. How, then, do mechanisms of transitional justice construct legal recognition of persons as civilians? How do the rules of international humanitarian law and its substantive application understand civilians and military personnel to constitute victimized collectivities in situations of conflict, and differentiate between these categories of persons? Do social characteristics of personhood influence these designations? And do the protective rules of international humanitarian law apply equally to all civilians present in a conflict situation without distinction?
To address these questions and this gap in scholarship, this book analyzes the rules and practices of the International Criminal Tribunal for the former Yugoslavia.10 This institution is used as a case-study of international criminal justice to interrogate the terms of the legal shaping of civilian identities and protections. As will be discussed further in the next chapter, the ICTY was established in 1993 by United Nations Security Council Resolution 827. A total of 161 persons were indicted by the ICTY for their alleged responsibility in committing violations of international humanitarian law during the Yugoslavian conflicts of the early 1990s.11 The charges brought against these accused can be understood to have instigated a new era of justice for the civilian victims of armed conflict. The ICTY included charges of acts of civilian victimization in the majority of its cases, and made significant advancements to the development of civilian protection law (Slaughter and Burke-White, 2002a). The judgements rendered by this institution are significant for founding accountability of the individuals that perpetrated unlawful acts of civilian (and military) victimization during the conflicts. However, they are also important for constructing official acknowledgment of individual civilians that were killed or harmed through unlawful means, and civilian populations that were subjected to widespread and systematic attacks perpetrated against them. The ICTY’s judgements affirm that there were concerted policies and campaigns in which civilians were intentionally targeted across the cities, towns and villages of the former Yugoslavia. While the ICTY’s judgements could not construct official recognition of all the civilians unlawfully harmed through these attacks, they affirm that this category of persons figured as a distinct victimized collectivity of the conduct of these conflicts. The ICTY thus provides a unique case-study for analysis of the relationship between civilian victims and mechanisms of international criminal justice. It offers a developed body of rules and practices through which to consider the legal shaping of civilian identities and protections.
Given the specificity of the legal shaping of identities by the ICTY in its dual function as a mechanism of international criminal justice and transitional justice (see Chapter 2), a framework for understanding this constitutive process must necessarily be interdisciplinary in its conceptual and methodological approach. Analysis of the ICTY requires that attention be given to its role in rendering justice (in its myriad forms) to individuals and societies, but without overlooking the centrality of legal rules and practices as the basis of its functioning. Transitional justice scholarship enables us to situate an analysis of the ICTY within the context of post-conflict justice. It draws attention to the significance of this mechanism in contributing to the restoration and maintenance of peace, and its role in condemning the acts of unlawful victimization that led to the breakdown of social relations between persons and communities. However, this body of scholarship has not adequately engaged with the specificity of the legal shaping of persons and protections. Somewhat surprisingly, the categories of civilian and military personnel as distinct categories of personhood are often overlooked by enquiries emerging out of this field of study, and the legal shaping of their form is largely unaddressed. Scholarly works emerging from the field of socio-legal studies provide a useful conceptual and methodological framework for addressing this gap. The ‘constitutive perspective’ of socio-legal studies, as it has come to be known, offers an important means to engage with the role of law in shaping identities of persons and the relations between them. It emphasizes the distinct legal dimensions of these processes, and the diverse ‘sites’ of the law that facilitate their instantiation. In the next section, I outline and bring into dialogue the potential contributions of these two bodies of scholarship in more detail.
Scholars and practitioners have put forward various definitions of transitional justice in an attempt to capture its scope, objectives and practices. In her insightful and expansive exposition on the subject, Ruti Teitel refers to transitional justice as ‘the conception of justice associated with periods of political change, characterized by legal responses to confront the wrongdoing of repressive predecessor regimes’ (2000: 3). She highlights the function (and difficulties) of law as a method for instituting the change from authoritarian rule to democracy (Teitel, 2000: 3). However, as Thoms, Ron and Paris point out, while the contemporary agenda of transitional justice emerged from debates over how best to deal with repressive legacies in Latin America, it ‘now concerns itself more generally with democratic and postconflict transitions worldwide’ (2010: 332). More recent definitions of transitional justice have therefore developed a broader understanding of its scope and objectives in two key ways. First, there is a more explicit recognition of the extra-legal processes that either operate as distinct from, or in parallel to, legal ones and, second, that transitional justice has been employed to deal with past (or present) abuses committed during a conflict situation. So, for example, Roht-Arriaza suggests that transitional justice can be defined as ‘that set of practices, mechanisms and concerns that arise following a period of conflict, civil strife or repression, and that are aimed directly at confronting and dealing with past violations of human rights and humanitarian law’ (2006: 2). In seeking to define those practices and mechanisms, Villalba argues that a transition typically encompasses four key processes: a justice process, a truth process, a reparations process and institutional reform (2011: 3). Despite their different perspectives on the scope of transitional justice as a justice practice, these definitions all emphasize that its mechanisms and processes seek to facilitate social change and relations in a period of transition. Their key objective is to re-establish societies in the aftermath of repressive rule or conflict and to work toward a just and peaceful future for its citizens. The reconciliation of previously warring parties or fractious relations is given as their ultimate goal.
In its modern form, practices of transitional justice are often traced back to the Nuremberg trials following World War II (Aiken, 2013: 1). Transitions from authoritarian to democratic regimes from the 1970s onwards in diverse contexts including Eastern Europe, Latin America and South Africa led to a growing move toward states seeking to deal with the responsible actors of the prior regime (Huntington, 1991; Teitel, 2000). The mechanisms established to reckon with state crimes have been diverse in their form and functioning, but include domestic trials (such as the prosecution of members of the military juntas in Argentina), lustrations (such as those undertaken in the Czech Republic and Poland), truth and reconciliation commissions (the most notable example being the processes of truth and amnesty undertaken by the South Africa Truth and Reconciliation Commission as a means to facilitate the transition from apartheid rule to national unity) and programs of reparations (such as the provision of pensions to certain victims of the Pinochet regime in Chile). Given the lack of a universal definition as to the mechanisms or practices that constitute a transitional justice process it is not possible to arrive at a definitive number of such initiatives across the globe. However, in their focus on the five key mechanisms, that is, trials, truth commissions, amnesties, reparations and lustration policies, the ‘transitional justice database’ developed by Tricia Olsen et al. identifies 848 mechanisms implemented in 129 countries since 1970 (2010: 39).
With the Yugoslavian and Rwandan conflicts of the early 1990s, however, a new form of redress for the crimes of war emerged. In the aftermath of World War II, the Nuremberg trials tried the ‘major’ criminals and national war crimes cases the more ‘minor’ criminals (The United Nations War Crimes Commission, 1948: 4).12 However, it was not until the establishment of the ad hoc tribunal for the former Yugoslavia that the international community established a truly international war crimes tribunal.13 The establishment of the ICTY, and then its ‘sister’ tribunal, the International Criminal Tribunal for Rwanda (ICTR), by the UN Security Council can be understood to represent a convergence of the utilization of the regulatory framework of international humanitarian law with the broader objectives of transitional justice. Thus, the ICTY was established to contribute to the restoration and maintenance of international peace and security, in addition to instituting peace within the region of its jurisdiction in particular.14 It broke with traditional transitional justice approaches of dealing with past abuses to seek to prevent those ongoing in the region and deter their future occurrence. Moreover, as will be discussed further in Chapter 2, the ICTY did not simply seek to punish the perpetrators of violations of humanitarian law, but instead also framed its objectives in the broader terms of contributing to the establishment of the facts of the crimes in the region, rendering justice to victims and strengthening the rule of law in the region. The more recently established International Criminal Court (ICC) will continue this legacy of an international address to the unlawful harms of conflict situations.15 This permanent, treaty-based international criminal court was ‘established to help end impunity for the perpetrators of the most serious crimes of concern to the international community’.16
As a field of study, transitional justice now comprises a vast body of literatures, debates and policy initiatives.17 Academic courses, centers and units now posit transitional justice as a distinct discipline, with dedicated journals and texts interrogating the theoretical and conceptual underpinnings of its objectives and the terms of its practice across the globe. Scholarship in this area now comprises a broad range of analyses arising out of the disciplines of law, sociology, anthropology, human rights and political science, among others. Early scholarship most often focused upon case-studies of particular transitions, and the reasons for the adoption of particular practices. Comparative analyses sought to identify the most appropriate mechanism or practice, given the local context and conditions. In the field of political science, for example, scholars explored the transitions in southern Europe and South America and the modes of accountability that were instigated as the outcomes of political bargains between elites (O’Rourke, 2013: 17). Legal scholars assessed the obligations set out in international human rights treaties and argued that they imposed a duty upon states to investigate and prosecute allegations of torture, killings and forced disappearances (Orentlicher, 1991).
Traditionally, the key debates of this body of scholarship have included, but are not limited to, the tensions (whether perceived or substantive) between the institution of peace and/or justice (Roht-Arriaza, 2006), the merits and deficiencies of retributive and restorative processes (Robins, 2013) and the relative merits of trials versus amnesty processes. As Moon points out, the field of transitional justice scholarship was often conducted through dichotomized debates around the appropriate transitional justice response to dealing with the past (2009: 19). However, as the form of the practices of transitional justice has developed, so too has the study of its parameters and processes. Moving beyond a ‘dualised way of thinking about issues central to transition’, scholars have considered the benefits of adopting complementary or combined processes (Moon, 2009: 19). Research frameworks that take an ‘ecological’ approach to the question of social reconstruction have been put forward that underscore the importance of the integration of trials with other capacity-building measures such as humanitarian assistance, democracy building and economic development (Fletcher and Weinstein, 2002; Olsen et al., 2010; Weinstein and Stover, 2004). Such approaches consider the myriad initiatives required for the promotion of social repair, and the importance of the timing and sequencing of the implementation of transitional justice processes dependent upon the particular context (Campbell and Wastell, 2008; Fletcher and Weinstein, 2009). Reflecting the central principles of this more holistic approach, scholarly analyses have also begun to engage with the question of how mechanisms of transitional justice are linked to, or situated within, the broader societal processes of a given context. Such analyses explore the links between transitional justice and social processes such as development (Aguirre, 2013; Greiff, 2009), economics (Laplante, 2008; Miller, 2008) and feminist advocacy (O’Rourke, 2013). They point to both the necessity of understanding transitional justice as a holistic approach and process, and of the problematics of any attempt to utilize a ‘one-size-fits-all’ model of address and redress to past abuses.18
Running through these debates and areas of enquiry there is often, whether explicitly or implicitly, a concern with ‘who’ mechanisms of transitional justice are seeking to render justice to. The so-called ‘stakeholders’ of transitional justice include the international community as a whole, international, national and community groups, political actors and justice advocates, as well as the individual victims and perpetrators (see Lutz, 2006). These stakeholders often hold different conceptions of justice and the appropriate role of transitional justice mechanisms and practices (Weinstein et al., 2010: 39). For example, the international community is most concerned with issues of peace and security, while victims’ groups tend to be concerned with issues such as the appropriate representation of abuses against persons and groups and reparations for their harms. Recognition of these different stakeholders of justice has also led to a consideration of the sense of ‘ownership’ felt by communities and individuals of mechanisms of transitional justice dependent upon the terms of their establishment. It is typically argued that processes that are largely ‘insider designed and managed, and that are politically popular’ have the highest levels of legitimacy, while outsider-driven processes ‘are likely to face significant problems ensuring both continuity and legitimacy’ (Lutz, 2006: 337). The perceived legitimacy of the ‘outsider-driven’ process of the ICTY by the people of the former Yugoslavia is considered in the next chapter.
This study focuses upon the victims of past abuses as a key ‘stakeholder’ or ‘audience’ of transitional justice. However, unlike much transitional justice scholarship it does not conceive of victims as an undifferentiated group of persons. Rather, it is the very differences in the identities of victims, and the constitutive role of mechanisms of transitional justice in ‘making’ those identities that is the focus of this study. The practices of armed conflict clearly evidence that persons are often explicitly targeted because of particular aspects of their identity. Those aspects of personhood include their military or civilian status, gender, ethnicity or political or religious affiliations. However, in their institutional functioning, mechanisms of transitional justice typically do not differentiate between ‘types’ of victims. Rather, their frameworks of participation or protection posit victims as a category of persons with similar needs and desires. How, then, does the ICTY position victims as a key stakeholder in its principles, practices and outcomes? And how does it recognize the differences between persons as particular ‘types’ of victims? These are questions that I will return to throughout this book. In order to begin to answer these questions, and frame the analysis of the chapters that follow, the next section sets out the two key ‘justice approaches’ of transitional justice, that is, retributive and restorative justice, to consider the positioning of victims and perpetrators in contemporary processes and practices.
In their institutional form, justice mechanisms most often take either a retributive or restorative approach to their principles, processes and outcomes (Findlay and Henham, 2005). Typically, legal mechanisms of transitional justice focus on the prosecution and punishment of the offender.19 This retributive approach places the perpetrator at the center of its functioning, with victims often only present to act as witnesses to testify to the alleged criminal conduct. However, in recent years there has been an increasing move to integrate the more ‘victim-orientated’ principles and practices of restorative justice into legal processes. That shift has arisen from the international recognition of a series of victims’ rights in justice processes and has led, to varying degrees, to a new positioning of this category of persons within mechanisms of transitional justice.