Authors meet Readers series: Dr Pádraig McAuliffe on Transitional Justice and Rule of Law Reconstruction

We are delighted to welcome this blog post from Dr Pádraig McAuliffe,  Lecturer in Law at the University of Dundee, and incoming Senior Lecturer at the School of Law and Social Justice, University of Liverpool. Pádraig completed his PhD at UCC under the supervision of Prof Siobhán Mullally, on post conflict reconstruction in Timor Leste (East Timor), focusing in particular on the Special Panels for Serious Crimes – a hybrid transitional justice mechanism. Pádraig’s research was supported by an Irish Research Council Government of Ireland PhD scholarship. While completing  his PhD at UCC, Pádraig undertook fieldwork in Timor Leste and was also a visiting fellow at UCLA, School of Law. Prior to taking up a lectureship at the University of Dundee, Pádraig completed a traineeship at the Department of Foreign Affairs, Legal Division.

PMc bookPádraig has published extensively in the field of transitional justice and post conflict reconstruction. In this post, Pádraig discusses his recently published book, Transitional Justice and Rule of Law Reconstruction:  A Contentious Relationship (Routledge: 2013).

 

 Dr Padraig McAuliffe, Lecturer, University of Dundee, author of Transitional Justice and Rule of Law Reconstruction: A Contentious Relationship (Routledge 2013)

pgmcauliffe Five years ago I went on field research to Timor-Leste, the focus of my PhD, to examine the impact of the trials of crimes from the period of independence in 1999 on the on-going process of rebuilding the national justice system. I arranged a series of interviews with local people, judges, and figures from the plethora of UN and multilateral agencies involved in these areas.

 What struck me in so doing was that people I would interview in relation to prosecutions for crimes against humanity had little or no idea what other interviewees concerned with justice sector reform were doing, despite a general belief in scholarship that the two areas would go hand in hand. I noted this surprising phenomenon parenthetically in my thesis, forgot about it completely, but when I began to think about possible areas of exploration for a book, I thought it would be a fertile field for examination.

What I discovered in writing the book was that this problem of the left hand not knowing what the right was doing in East Timor was being replicated in many other peace-building environments – DR Congo, Sierra Leone, Bosnia, Kosovo, Cambodia. Transitional justice is assumed to conduce to rebuilding the rule of law in even the most critical scholarship in the field, but mutually beneficial symbiosis is more apparent on paper than on the ground.

Concern has also been expressed that it is often the same small pool of talent’ that will undertake both tasks and that the burden of external assistance for dealing with past human rights abuses will fall not on the international justice community, but rather the traditional rule-of-law development organizations on account of their larger network of international organizations, aid agencies, and other donor and implementing bodies. While transitional justice has sometimes stimulated beneficial reform, it can also have the opposite effect – in Kenya, justice NGOs began to give up on campaigns to use a national tribunal to pursue justice for post-election violence when the use of the ICC appeared more immediately feasible. Fear has been expressed that activities (such as transitional justice) that are popular and well-funded may be ‘cherrypicked’ to the detriment of strengthening the justice sector as a whole.

International criminal justice tends to strip national judiciaries of resources and staff, while at the other end of the spectrum the use of indigenous or traditional forms of justice to reckon with localised human rights abuses has consistently been isolated from on-going process of integrating these informal mechanisms into the state justice system.

One explanation my book identifies for this gap is the professional balkanization that typically afflicts rule of law reconstruction missions where different experts and agencies with divergent mandates and different institutional dynamics concentrate intensely on their core competencies, producing hyperfocused approaches that fail to add up to an integrated and effective whole. The presumption appears to be that there will be a complementary overlap between transitional justice and rule of law reconstruction, but given the failure to think through their inter-relation, the book identifies a significant risk of ‘underlap’ where incoherence results from the cacophony of projects.

However, professional balkanization is only the organizational form of a wider problem, namely that activists and theorists in both communities have fundamentally different conceptions of what the rule of law means and requires in post-conflict and post-authoritarian transitions. As this book examines, neither group may not have much knowledge of key debates in the opposite field.

My book therefore attempts to explain how those involved in trials, truth commissions and lustration view the rule of law (a very value laden conception focussed primarily on human rights and norms with little attention given to institutions or the cultural commitments on the parts of ruler and ruled to legality) differently to those attempting to rebuild courts, police systems and prisons (a more technocratic, culture-driven view which incorporates human rights but avoids conflating the two). In so doing, it examines differences of opinion on criminal trial (for the former, it is a means of political signalling where fair trial values are contingent, for the latter it is an example to establish scrupulously fair standards), international criminal law (for the former, international trials are often a superior option because they reinforce the global values of norms, for the latter they risk de-legitimising or infantilising national court systems) and indigenous justice (seen in transitional justice as a bastion of resistance to the state, seen in justice sector reform as a key complement or gap-filler for the nascent state justice system).

Arguing that the often Messianic transitional justice community would do well to heed the limitations of its mechanisms and the radically imperfect conditions to which they deploy, the book recommends policy-makers to re-balance the compromises inherent in transitional justice mechanisms against the foundational demands of rule of law reconstruction.

Prioritizing achievable and pragmatic justice sector reform objectives over the more profound but potentially unobtainable political ends that dominate transitional justice theory, the book recommends that a more clear-eyed vision of costs and benefits, risks and opportunities is required when decisions are made to employ, circumvent or complement the transitional state’s institutions of justice by internationalised trials, truth commissions and other sui generis processes.

 

 

 

 

 

The Shadow of Taylor Hangs Over Mugabe

This blog post was submitted by PhD candidate and Government of Ireland Scholar Pádraig McAuliffe, who is reading for a PhD entitled The Serious Crimes Process of East Timor in the Field of Human Rights Law under the supervision of CCJHR Co-Director, Dr. Siobhán Mullally.

In the wake of the recent elections, the question on many lips is when or if Zimbabwean President Robert Mugabe will ever voluntarily give up power in the erstwhile breadbasket of Africa. The close nature of the campaign and the failure of a significant portion of the state apparatus to acquiesce in the transparent tampering with the election suggest Mugabe’s control is more tenuous than was previously the case and may be, in nautical parlance, holed beneath the water-line. He is far from sunk, however and remains very much the captain of this listing vessel. Mutiny remains unlikely to be successful. If a maritime lexicon is to be indulged one more time, it is clear the tide has turned. The most relevant question Zimbabwe-watchers might ask is not whether the octogenarian Mugabe is willing to give up power, but whether he is afraid to.

In the past, things were different. The average dictator could commit sundry tyrannies safe in the knowledge that if local disaffection reached a critical mass, a luxury mansion in a neighbouring country awaited where he could spend the incalculable millions siphoned off from systematic kleptomania. So it might have been for Mugabe, who might have relinquished control to a liberal/less repressive Shona Brian Cowan (though it is unfortunate to compare a sophisticated, repression-savvy tribe with Offaly people) or to the MDC and crossed the border to South Africa. There he would no doubt have been welcomed by Thabo Mbeki, whose craven acquiescence to every excess by his neighbour has shamed an ANC who should really know better than to support a militarized, anti-democratic brute. Mugabe may not even have to leave. His predecessor, the odious Ian Smith, could still drive around Harare in an open-topped Range Rover with impunity for years after his ouster from power. Impunity is they key word, however. In the past, impunity was the price victims and the international order for a peaceful exit. The transitional calculus in Africa may still tilt in favour of this, but in the aftermath of Charles Taylor’s transfer to The Hague from exile in Nigeria to the Special Court for Sierra Leone in The Hague, what tyrant will ever want to give up power? What credibility have impunity agreements to end conflict when Lomé Peace Accord’s amnesty can be torn up at will by the UN?

Many people, the author included, were heartened when international pressure led to the extradition of Charles Taylor, the Liberian dictator who subjected his own people and those of Sierra Leone to a decade of brutal internecine conflict to the Netherlands. It represented an all-too-rare service by the Bush administration (who pressured the Nigerian Govt to give him up) to the international community and international justice (though cynics, the author once more included, suspect they would do anything to boost these ad hoc, localized organs at the expense of the ICC, but that’s a rant for another day). What we may now be experiencing is the flip-side of this decision – that the Mugabes and Kabilas of this world will only leave their posts in a coffin for fear of arrest and extradition to trial by the very imperialists they have railed against for decades. Former ZANU-PF strongman Edgar Tekere was reported to have told a meeting in January that President Robert Mugabe was afraid of stepping down because he would be tried for his crimes, especially the massacres in Matabeleland in the 1980s. “Mugabe is afraid of his crimes. If he leaves office we will have another Charles Taylor incident. So when Mugabe sits down and thinks of Gukurahundi, he won’t step down.”

The option exists for Mugabe to enter into an agreement with South Africa or Zambia for sanctuary, but it can be worth little more than the paper it is written on if addendums can be added outlawing safety from prosecution for war crimes or crimes against humanity, as was the case in the Lomé accord, signed by rebels and the Government in the Sierra Leone Civil war nine years ago. Providing sanctuary for dictators and mass criminals can cost host countries hundred’s of millions of dollars in punitive sanctions and even more in credibility.

International criminal justice is often justified on the basis of its deterrent effect criminals will refrain from committing criminal acts, even where they desire to commit them and retain the capacity to do so, out of fear of judicial punishment. Even leaving aside the obvious flaws in the theory (most mass criminals initially presume their cause will win out and that they will never be held to account, or reason that in defeat, they will not be apprehended),the opposite may now be happening – leaders who might otherwise retire due to old age or unpopularity are now deterred from quitting their bloody reigns by the spectre of the ICC. Once more, the world must ask how willing it is to prioritise the vindication of human rights through retrospective prosecutions over the prospective realisation under a successor regime