0748624481.Edinburgh.University.Press.The.Ethics.of.Peacebuilding.Mar.2009

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recommendations to governments regarding reparations for victims,
reforms of existing laws or institutional structures to prevent future
abuses. Therefore, for the next few decades this issue of whether peace
can be achieved without addressing the interests of justice will continue
to be debated. The role that the law plays in enabling post-conflict
societies to make their transition to democracy becomes crucial. Transi-
tional justice refers to frameworks of the rule of law which enable a
political transformation to take place within authoritarian or war-
affected communities. The dilemma arises from the need to establish
a balance between maintaining order on the one hand and facilitating a
political transition on the other.15
The old adage goes that there can be no justice without peace. It is
equally true, however, that there is no peace without justice. Pragmatists
maintain that the best one can hope for is an uneasy compromise
between what peace requires and what justice demands. This chapter
will explore the nexus between peacebuilding and justice by assessing the
challenges of establishing peace after conflict and the problem of
promoting justice in situations which have been defined by the perpe-
tuation of grievous human rights atrocities. By introducing this notion
of positive peace with justice, then the false dichotomy between peace
and justice dissolves. It becomes self-evident that positive peace can only
be sustained with justice. Inversely, in order to attain justice for former
victims positive peace is required.
This chapter will later look at the attempt to institutionalise this
notion of ensuring justice when building peace by looking at the
mandate of the International Criminal Court (ICC). The issue is that
the ICC retains a logic of punitive justice, which can sometimes be at
the value of reconcili ation 141
odds with promoting socially cohesive post-conflict communities. The
ICC therefore falls short of the requirement to reconcile the require-
ments of peace with the demands of justice. Ultimately, it is necessary to
adopt approaches to peacebuilding which place more of an emphasis on
forgiveness and restorative justice rather than punitive justice. Restora-
tive justice seeks to restore social harmony by encouraging the perpe-
trators of crimes to confess and show genuine remorse which provides
victims with the basis for granting forgiveness and embracing reconci-
liation. This chapter therefore concludes with an assessment of whether
some of the cultural and indigenous traditions for peacebuilding in
Africa can fulfil this requirement of ensuring peace with justice, based
on the restoration and healing of broken relationships.
COLONIAL INJUSTICE
The colonial systems of justice were superimposed on top of African
systems of justice and governance and have been retained in most post-
colonial state structures. Justice should not be meted through predeter-
mined and inflexible prescriptions by applying the same model to every
local population or country. It needs to be context-specific and relevant to
the local communities concepts of justice as well as sensitive to local social
and cultural traditions. In northern Somalia (or Somaliland) the local
population has made use of traditional leadership and governance struc-
tures to reconstruct a government and establish relatively peaceful con-
ditions for its people, which is not currently the case in southern Somalia.
Regrettably, the entity combining traditional and modern institutions of
governance has not received recognition by the international community
because there is no language or vocabulary to describe what Somaliland is
other than the word nation-state ; this term, however, is unacceptable to
most governments as it would implicitly legitimate secession and probably
open the way to the break-up of many other states.
Therefore, to enable culture to begin to play a significant role in the
reconstruction of Africa it will be necessary to establish education and
training programmes for officials and civil society actors based on
African cultural values, while bearing in mind that not all traditions
are empowering, particularly on issues to do with gender equality.
Progressive cultural principles promoting human dignity and the
well-being of the individual and society can provide valuable insights
into how Africa can be reconstructed by using its own indigenous value-
systems which emphasise confronting corruption and promoting power
sharing, inclusive governance and the equitable distribution of resources
among all members of society.
142 the ethics of peacebuilding
THE CHALLENGE OF POST-CONFLICT
PEACEBUILDING IN AFRICA
Countries in Africa that have made the transition from conflict include
Angola, Mozambique, Sierra Leone, Liberia and the Southern part of
the Sudan. South Africa made the transition from a minority-rule
apartheid system to a pluralist liberal democracy; however the situation
in the country is by no means stable and indeed the situation can only be
described as one in which a fragile reconciliation exists. For these
countries emerging from authoritarianism or conflict, social and eco-
nomic justice in the form of the promotion of the well-being of large
sections of their populations remains to be addressed if positive peace
predicated on sustainable reconciliation processes is to be consolidated.
THE PEACE WITH JUSTICE MATRIX
The peace with justice matrix is a graphic representation of the nexus
between peacebuilding and transitional justice.
Presence of |
Justice | Restorative Justice Social Harmony and
| Reconciliation
|
|
| Punitive/Retributive Justice
|
| Instability, Disorder
| Tension
Absence of |
__________________________________________________________________________________
Justice
Negative Peace Positive Peace
This matrix proposes a two-dimensional axis with peace on the
horizontal and justice on the vertical. Along the horizontal axis from
left to right, negative peace represents the condition of the absence of
war, and positive peace indicates a situation in which social and
economic justice has merged with political peacemaking and reconcilia-
tion. The vertical axis therefore represents the trend towards greater
socio-economic and political justice.
This matrix suggests that there is a symbiotic relationship between
peace and justice. In the absence of justice, a negative peace prevails. As
justice increases so does the trend towards positive peace. The question
arises as to what moral principles are necessary in order to meet the
the value of reconcili ation 143
requirements of international transitional justice.16 Transitional justice
requires that those who are guilty of human rights abuses, war crimes
and crimes against humanity need to be brought to account. Equally,
victimised groups need to be able to build a future secure from threats or
retaliation.
PUNITIVE AND RETRIBUTIVE JUSTICE VS
RESTORATIVE JUSTICE
As a norm, punitive or retributive justice has been the main form of
justice rendered often by state or intergovernmental instruments and
mechanisms in order to control and shape anti-social behaviour as
defined by the state or intergovernmental authority. This definition
of justice often does not take into account the needs of victims for
restitution, healing or reconciliation. Through these forms of justice,
conflicts and their regulation or management become the property and
sole preserve of the state or intergovernmental framework.
Restorative justice works on the principle of trying to, wherever
possible, restore a relationship between the victim and the perpetrator [ Pobierz całość w formacie PDF ]

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