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Jus Post BellumMapping the Normative Foundations$

Carsten Stahn, Jennifer S. Easterday, and Jens Iverson

Print publication date: 2014

Print ISBN-13: 9780199685899

Published to Oxford Scholarship Online: April 2014

DOI: 10.1093/acprof:oso/9780199685899.001.0001

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Post-War States

Post-War States

Differentiating Patterns of Peace

Chapter:
(p.269) 14 Post-War States
Source:
Jus Post Bellum
Author(s):

Astri Suhrke

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199685899.003.0015

Abstract and Keywords

The growth of the international peacebuilding regime is a manifestation of the growing collective will during the past two decades to mediate an end to civil wars and stabilize the post-war situation. The potentially constraining effect of international involvement on local wars and its aftermath is the foundational principle of the international peacebuilding regime and growing efforts to streamline, sharpen, but also broaden such interventions. In principle, that is also a justification for the development of a corpus of international law tailored to post-war situations. This chapter argues that international efforts to stabilize post-war peace must reflect the diversity of post-war situations, identifies four main types of post-war states, and discusses the implications for the development of law.

Keywords:   statebuilding, peacebuilding, post-conflict reconstruction, jus post bellum

I. Introduction

The very first principle of the Organization for Economic Cooperation and Development (OECD) Paris Declaration in 2007 on international aid to fragile states (hereinafter “OECD Declaration”) proclaims that the local context must be the starting point.1 Yet there have been few efforts to systematize what kinds of contexts donors confront when they seek to stabilize or develop countries emerging from civil war or other kinds of post-conflict situations. In some cases, the state is weak and violence remains widespread. In other cases, the state is strong and able to impose a new order, although vindictive against those associated with the defeated belligerent party. International involvement will also differ. As aid actors establish themselves, they become a part of the “local” context, sometimes taking a fairly direct role in rebuilding the political, legal, and economic structure of the post-war state. At other times the international footprint is light. As the OECD Declaration recognizes, such differences must be taken into account in the design of appropriate policies for economic reconstruction, statebuilding, and peacebuilding.

This chapter examines some principal differences in post-war situations that affect efforts to rebuild a state and society after armed conflict, and suggests some implications for the development of law.

The term “war” rather than “armed conflict” will be used, although the choice here has little substantive significance. As both the qualitative and the quantitative social science literature recognize, the boundary lines between war and peace are fluid.2 Nevertheless, “war” is usually defined by a certain level of violence (1,000 battle-related deaths per year is a common threshold in quantitative analysis), in addition to an evident measure of organization and collective purpose on the part of the belligerents.3 In legal analysis, the term “armed conflict” is defined by similar criteria of intensity, organization, and purpose.4 Post-war violence as used in this chapter consequently denotes violence (p.270) below the threshold of war in terms of intensity, purpose, and organization. The last item applies in this case only to non-state actors. The use of physical violence or threats of such by state agents clearly emanates from an organized entity (the state), and is a not uncommon form of post-war violence. It does not qualify as “war” unless the other party fights back with a measure of organizational coherence and collective purpose.

The term “post-war state” suggests the period is defined by what preceded it in time—the war—but says nothing about how long the period will last. Markers that denote a transition from an unusual to a normal state of affairs are often used in the case of Germany and Japan after the Second World War. The end of allied occupation, membership in international organizations and rapid economic growth during the early 1950s are commonly taken as signs that the post-war period ended. Since contemporary war-torn countries are rarely occupied, economic progress and political stability are often used as markers.5 Quantitative studies often use a cut-off point of one five-year period, as in the now-classical study by Archer and Gartner.6

II. The International Peacebuilding Regime

The international peacebuilding regime that emerged after the end of the Cold War had by the turn of the century produced a relatively standardized package of international assistance for post-conflict peacebuilding and, with it, an associated body of policy norms and “best practices.” The accumulated body of knowledge, including codification in the form of policy guidelines, declarations, and program recommendations, was the product of the major institutions that formed the peacebuilding regime—the United Nations (UN), the international financial institutions (IFIs), the major Western powers and their allies, a host of transnational aid and humanitarian organizations, and outside scholars whose policy-related work serviced these agencies or the aid recipients.

Internationally assisted peacebuilding was thus by the early 2000s regulated and guided in many ways. The activity was divided according to commonly accepted sector areas. The main ones were: (i) security sector reform (demobilization and reintegration of soldiers, reform of the police, legal reform and strengthening of the formal justice sector, increasingly also informal legal mechanisms); (ii) “good governance” (elections, public sector reform, including better local government, anti-corruption measures); (iii) human rights (rights-based development programs, transitional justice initiatives); (iv) economic reconstruction (reducing the role of the state in the economy, rebuilding infrastructure); and (v) social services (rebuilding and strengthening health and education). On the country level, elaborate and often multiple mechanisms of coordination among donors tried to streamline assistance and align aid programs with consensus-based objectives. In recent years, several guidelines and recommendations in this area (p.271) have been inspired by the OECD’s Declaration of 2007 that sets out principles for donor assistance in conflict-affected states.7

The OECD principles are framed in quite general language (e.g. “focus on state-building”), but are accompanied by texts that provide more detailed guidelines for aid policy. The composite text is a principal tool for coordinating and monitoring donor activity. The OECD Declaration has generated a continuous organizational discourse on aid in fragile states as well as subsequent additions and reinterpretations. The most recent are the guidelines developed by OECD members in cooperation with governments that receive aid for state or peacebuilding purposes, the so-called New Deal adopted at OECD’s high-level meeting in Busan (South Korea) in 2011 (hereinafter “the 2011 Declaration”).8 The 2011 Declaration emphasizes that local ownership is the only way out of state fragility, and that national governments consequently must have a role in formulating the criteria for developing and evaluating aid programs for purposes of state-and peacebuilding. The criteria adopted at the Busan meeting were progress toward legitimate politics, greater national revenue collection, and provision of security, justice, and social services. The UN Secretariat had earlier underscored the importance of local ownership as a critical norm for post-conflict reconstruction in the Secretary General’s 2009 report on peacebuilding.9 Summarizing the consensus in the international aid community at the time, the report concluded that peacebuilding would not succeed unless the process was supported, or “owned,” by the local parties concerned.

The underlying concept of state-society relations that underpinned the norms and practices of this peacebuilding regime was an idealized version of the Western state and a free market economy. Its key components were liberal democratic institutions, a lean but effective state, and a large private sector as the engine of growth. The prominence of these values was hardly surprising given the hegemony of Western political paradigms after the collapse of the Soviet Union and, with it, the ideology of state socialism. The post-Cold War dominant norms were written into the sudden rush of peace agreements in the 1990s that terminated wars that belonged to the Cold War era, as well as agreements that terminated the new wars that erupted afterwards.10 Most (p.272) of these agreements were mediated by the UN, the major powers and the IFIs were in many cases closely involved as well. Heavy IFI involvement in post-war reconstruction reinforced the market orientation of the reforms. As a result, post-war assistance for reconstruction and peacebuilding typically entailed reforms promoting economic and political liberalism that collectively came to be known as “the liberal peace.” The term reflected the underlying assumption that political democracy was associated with peace and the market economy with prosperity. From Mozambique to Bosnia and Afghanistan, competitive political structures such as elections were introduced, the state was slimmed down, and the post-war economy was structured to encourage market forces and fiscal stability.

III. Implications for Norms and Practice

From the perspective of the development of law, the emergence of a powerful international peacebuilding regime as outlined above raises several questions. First, there is a distinct possibility that the development of law will privilege the interests of the most powerful relevant actors. What are now mainly norms for post-war reconstruction would likely be further entrenched. As Roxana Vatanparast points out in Chapter 8 of this book, this might lead to legitimization of neo-colonial projects through law. Her point is echoed in the critical body of literature on peacebuilding.11

The critical literature on “the liberal peace” also raises issues of substance. As Roland Paris laid out in an early comprehensive analysis, the problem is that both the market and liberal democracy are based on competitive institutions and norms. When introduced into post-war societies that typically are divided by the legacy of past strife, lacking strong institutions, and often plagued by continuing violence, the result is likely to be renewed conflict.12 Subsequent experience has partly confirmed this thesis. Elections in fragile states, particularly if held soon after a peace agreement, are likely to generate violence designed to influence the outcome (as in Afghanistan in 2005), harden existing divisions among hostile factions (as in Bosnia and Herzegovina in 1996), or encourage massive fraud (Afghanistan in 2009). On the other hand, elections are also an opportunity to “manage political competition through non-violent rule-bound procedures and institutions.”13 Elections can be a decisive element in moving conflicts from the military to the political arena and for that reason are often included in peace agreements that terminate civil wars. For instance, two quite different peace agreements, concluded in different historical contexts—the General Peace Agreement in Mozambique (1992) (p.273) and the Comprehensive Peace Agreement in Nepal (2006)—both had detailed provisions for post-war elections. In both cases, the opportunity to participate in free and fair elections was a major incentive for the rebels to lay down arms and sign the agreement. Whether elections will generate conflict or political negotiations thus depend heavily on context. A rule-bound commitment to post-war elections could well prove counter-productive, as the OECD 2007 Declaration recognizes in its opening emphasis to take context as the starting point for assistance.

Similar considerations apply to transitional justice. The UN Secretary General has in recent years repeatedly affirmed that the UN cannot support peace agreements that promise amnesties for actions considered crimes under the Rome Statute of the International Criminal Court (genocide, crimes against humanity, and war crimes) as well as gross violations of human rights.14 In other words, there is a presumption that accountability mechanisms for past crimes and human rights violations of this kind should at least be possible. About half of the peace agreements concluded between 1990 and 2006 did have one or more provisions for transitional justice.15 There are many good reasons why transitional justice in the form of prosecution or truth commissions should be pursued, as the UN maintains, but there are also considerations that counsel caution. While it is expected and often claimed that accountability mechanisms will strengthen rule of law and thereby peace and democracy, the statistical evidence does not support this view.16 The case-study literature has documented difficult trade-offs and significant costs in terms of social and political conflict.17 A legal obligation to institute transitional justice mechanisms, e.g. by mandating provisions to this effect in peace agreements approved by the UN Security Council, would deny the importance of context.

When it comes to economic liberalization—a cornerstone of “the liberal peace”—there is less ambiguity. In countries where the pre-war state controlled a large part of the economy, early liberalization in the form of privatization as a rule leads to corruption, organized crime, inequality, conflict, and human rights violations. The negative consequences of rapid privatization driven by donors and the IFIs have been documented in post-war situations as diverse as Cambodia, Mozambique, Angola, and Bosnia.18 The reforms enabled well-positioned individuals and factions to capture the process and its dividends, with clearly negative social effects. (p.274)

In sum, the complex workings and uncertain consequences of reforms typically promoted as part of “the liberal peace” are a warning against their uniform imposition in post-war situations. Lending such reforms the status of legal principles appropriate to post-war situations increases the likelihood that they will indeed be imposed.

A related concern is the widespread assumption in the international peacebuilding community that there is one predominant type of post-war state. The OECD Declaration, while starting out by emphasizing context (“Take context as the starting point”), quickly proceeds to a general principle that contradicts the importance of context (“Focus on state-building as the central objective”). The importance of statebuilding in the OECD discourse and the peacebuilding literature, and the very term “fragile state,” suggest there is one kind of post-war state. This state is endowed with certain generic features that predispose the state (as an agent) and society towards disorder and violence. In this understanding, the weak state permits or colludes with criminal elements generated by the war-time economy, cannot deal with ex-combatants that need to be demobilized, demilitarized and reintegrated, is unwilling or unable to establish institutions of justice and political accountability, fails to run an effective public administration, and fails to provide basic social services. This may be the model type of post-war state, but there are others as well, as we shall see below. A norm that takes statebuilding as its central objective, based on the assumption that the post-war state is fragile or weak, risks the adverse consequences that come with wrong diagnosis.

A wrong diagnosis obscures the problem. In some post-war situations, the source of social disorder and violence is not a weak state, but a strong state that seeks to inflict its vision of the post-war society on the population as a whole, and with particular vengeance on people associated with the defeated enemy. State sanctions in this case may take the form of subtle violence (intimidation and fear), as well as physical coercion. The post-war state in Rwanda after the genocide in 1994 is a case in point. In this case, the appropriate peacebuilding strategy would have focused on taming rather than building the state.

Even in situations when the state is weak, the task of (re)building the post-war state may be so long-term and difficult that other strategies are more realistic. Recognizing these constraints, recent scholarship on peacebuilding has focused on ways to create political order and provide services with minimal state involvement. A measure of “governance without the state” can in some cases be achieved by relying on traditional institutions (e.g. of justice), public-private partnerships, community policing, civil society, and so on.19 This approach can offer faster and better solutions in some areas than the general rule to “focus on statebuilding as the central objective,” as the OECD principle claims.

Certain post-war situations, moreover, have more of a functioning state than what meets the eye, particularly if the viewer is conditioned to expect a weak or imploded state apparatus. In East Timor, for instance, the UN agencies that moved in after the violent end to Indonesian rule in 1999 assumed that after a long period of colonial (p.275) rulers, who had departed, East Timor was a political, legal, and administrative terra nullius. They consequently assumed direct rule through a de facto trusteeship (the UN Transitional Administration of East Timor, UNTAET), much to the chagrin of the long-established and relatively well-organized Timorese independence movement. The neglect created tensions that only later were addressed by including the Timorese in the governing structure.20 Similarly, in Afghanistan after 2001, the Western powers acted as if there was no extant Afghan law relevant to the new order, and proceeded to import US and Italian law with little regard for the well-known problems of legal transplants, as well as the fact that the country had a comprehensive Civil Code and Penal code assembled in the late 1970s by a modernizing president.21 The transplant was part of a larger agenda of statebuilding, married to the impulse of Westernized reforms. The effects were mostly negative, as the new laws were ignored or became magnets of criticism among the Afghans.

IV. Post-War States

To gain a better understanding of the diversity of post-war situations, the following analysis constructs four main types based on the nature and role of the state and its consequences for post-war violence. The typology is based on historical cases, two older ones that belong to previous historical eras (the Spanish and the US civil wars), and the others from contemporary, post-Cold War period.22

A. Victor’s peace

Spain under General Franco is the prototype of what can be called a victor’s peace. This state emerged from what appeared to all parties as a totalizing civil war over the nature and structure of society. During the war itself (1936–39), the Nationalist forces under General Franco had systematically repressed or eliminated the Republican forces and their supporters as they advanced. After the Republican forces were decisively defeated, the Franco regime launched systematic purges—significantly called limpieza (cleansing)—to rid society of threats to the new order and its foundational principles. The new order embodied a vision of Spanish society, and Franco’s state was the main instrument of creation. This post-war state, then, was strong, purposeful, and effective, using violence, threats, or sanctions to attain its objectives. With the rest of Europe on the eve of what became the Second World War, Franco could operate without international constraint and with considerable support from the Axis powers. This “victor’s peace” meant a repressive, violent peace in the same sense that a “victor’s justice” means the denial of justice. (p.276)

The violence orchestrated by Franco’s state, with the support of the army, the clergy, and the landed propertied class, was directed against particular civilian segments such as trade unions, “reds,” and professionals.23 The terminology and practice of violence reflected a view of social conflict as absolute. The we/they distinction was laced with normative connotations of good and evil, permitting no compromise. Violence was most intense in the first post-war decade, when it took the form of systematic purges, mass imprisonment, and executions, but continued until Franco’s death in 1974. Post-war violence can be said to have outlasted the post-war period, as defined by conventional markers. The regime also used indirect violence by regulating access to basic necessities (ration cards, employment, medical care, and food in detention centers) so as to weaken “the enemy” and reward regime supporters.

There are few contemporary cases of a victor’s peace, mainly because of greater international attention to post-war peacebuilding as well as early mediation that encourages compromise and peace agreements rather than total defeat and total victory. Nevertheless, Rwanda after the genocide in 1994 comes close.24 Post-genocide Rwanda has all the parameters of the Spanish case. The Rwandan case also has two unique features that set it apart from other contemporary post-war environments. First is the enormity of the genocide itself and the logic of total social conflict that it expressed. The victim-turned-victor (the Rwandan Patriotic Front) subsequently resorted to targeted violence, followed by more subtle means of control to instill fear and silence among the ethnic “other.” The second distinguishing feature is the relative passivity in the international community towards the violence committed by the new Rwandan government. International human rights organizations reported violence within Rwanda and the UN issued investigative reports on the killings in neighboring DRC, but governments were long silent. As in post-war Spain, Rwandan sovereignty was in effect unconstrained. International passivity reflected reluctance to sanction a government that represented genocide victims, as well as the paralyzing memory of UN failure to prevent the massacres despite having been present on the ground with a peacekeeping force when the killings started.25

B. Loser’s peace

The loser’s peace is the mirror image of the victor’s peace. While the latter signifies a violent consolidation of the post-war order, the former denotes violence unleashed to sabotage the new order. In this case, the party that lost the war retains the power to obstruct and sabotage and, if successful, can block the implementation of the post-war order in territory under its control. This happened in the ex-Confederate states of the United States during the post-civil war period known as Reconstruction (1865–77). (p.277)

As in the victor’s peace, the purpose of the violence—in this case unleashed by “the losers” in the civil war—was primarily political (to influence the post-war political order), but there were other important dimensions as well.26 Violent constraints on the mobility of blacks served to keep the cost of labor down, and violence along racial lines reinforced identity boundaries that were particularly important for poor whites. As in Franco’s Spain, violence was targeted against particular social segments and political groups, often couched in the language of “cleansing.”

While the state is the major agent of violence in the victor’s peace, the loser by necessity relies more on vigilante-type violence—or asymmetrical warfare in contemporary terminology. In the post-bellum Southern states, vigilante and paramilitary violence was backed, or initiated, by local elites and local political and law enforcement authorities as the “redeemers” increasingly won political office.

In the absence of international restraints, the only external limitation on violence came from the federal authorities. Yet federal troops stationed in the South during the period under consideration were far too few to prevent violence in a far-flung territory. Moreover, vigilante groups were careful not to provide a pretext for more direct intervention by attacking the troops or other symbols of Federal power directly. The other federal agency with a specific justice-related mandate in the South was the Federal Freedman’s Bureau, originally established by President Abraham Lincoln to help refugees from the civil war and freed slaves. The Bureau maintained a record of human rights abuses, murders, and lynching, but could not prevent massive and sustained human rights abuse against blacks and their white sympathizers. Arguably, the minimal presence and de facto permissiveness of the federal state was a significant enabling condition of the violence characteristic of the loser’s peace. A hundred years later, it will be recalled, the deployment of federal troops to the South dramatically demonstrated the federal government’s commitment to enforce civil rights and helped change the situation.

A full-blown case of the loser’s peace is difficult to find in contemporary post-war environments, but some elements are recognizable. The pattern of violence in post-war Guatemala suggests powerful forces seeking to obstruct the sweeping reforms envisaged in the 1996 peace agreement.27 Yet it was a distinctly contemporary form of loser’s peace in that it was based on an internationally mediated compromise to end the war and the post-war period showed the imprint of international constraints.

The Guatemalan war ended with no clear winners and losers. The armed forces, however, were set to lose in institutional and ideological terms. The peace agreement called for drastic cuts in the numbers and budgets for the military. Paramilitary forces would be disbanded and military intelligence services closed down. Politically, the peace accords endorsed principles of social justice, indigenous rights, human rights, and democratic participation—principles that the military had fought against during the long war as threats to the integrity of the state and the very fabric of the nation. (p.278) As a result, elements in the military used threats, political manipulation, and violence to obstruct the implementation of the peace agreement. Most famously, ex-military formed the core of the “hidden powers”—an amorphous structure of networks with links deep into organized crime as well as the state administration, the economic elite, and the political establishment. Operating through groups with names such as The Syndicate, the “hidden powers” resembled a conventional mafia that used violence to maximize profits and worked with organized crime in a wide range of illegal operations.28

The “hidden powers” became a synonym for an invisible hand that appeared to facilitate the staggering level and variety of violence in post-war Guatemala. The “hidden powers” also had vested interests in a dysfunctional police and court system. The police investigated only a fraction of the approximately 5,000 murders annually in the immediate post-war years. Fewer arrests were made and the judiciary was impotent. With general impunity for crimes of all kinds, violence seemed to have developed into a social norm.

The fact that the key structures behind this violence were hidden, operating outside the formal political process and not seeking to “redeem” the past by challenging the principles of the peace agreement, sets post-war Guatemala apart from the Loser’s Peace modeled on the US Civil War. What mainly compelled the “hidden powers” to stay hidden was international pressure. After the end of the Cold War, Guatemala’s military had gradually lost favor with its powerful North American patron. Its appalling human rights record was internationally condemned. The peace agreement principles for a new and better post-war order were endorsed by the United Nations, which also established a large human rights verification mission on the ground two years before the final peace agreement was signed and maintained the mission for a decade.

C. Divided peace

Afghanistan arguably was in a post-war phase for a period from late 2001, when the US-led intervention removed the Taliban regime, until early 2005 when mounting clashes between the US-led forces and a revived insurgency produced a de facto state of renewed war in much of the country. In the intervening years, there was violence, but it was low-level and scattered, and thus below a reasonable assessment of war according to criteria of intensity, organization, and purpose as discussed above.

What caused this divided and low-level violent condition? The post-war period opened without an agreement among the nominal victors on the substantive provisions for the new order or an authoritative distribution of power, only a schedule for a competitive process to settle these matters.29 Military power was fragmented with numerous armed groups and factions on the winning side. The result was a ferocious conflict among the victors over access to economic rents, political power, and—the grand prize—control of the state. On the local level, new strongmen supported by Kabul and (p.279) the international forces moved in to displace, harass, and kill factions that had been aligned with the Taliban, adding another level of violence and laying the foundation for a revived insurgency.

The power struggle within the winning coalition was fought in many arenas, sometimes with overt violence and almost always against the backdrop of threats of violence. The central government and the local strongmen struggled for control over revenue, territory, and formal state power. Sometimes local rivals fought pitched battles (in the North); at other times US military force was used in support of the government to settle scores (in Herat). Military strongmen organized or facilitated violent riots to demonstrate their power vis-à-vis competing factions (in Kabul and the provinces). By the time of the parliamentary elections in 2005, some types of “armed politics” had become less visible due to co-optation, the UN disarmament program, diversification of rent-seeking opportunities, and political alignments.30 Meanwhile, the Taliban were recovering and regrouping to fight the new government and the international forces. Despite the targeted nature of the violence, the mounting warfare caused significant death and damage among civilians.

The intense, post-war struggle for power among the anti-Taliban factions made it difficult to recreate a central state that had been practically demolished over the past almost 25 years of revolutionary strife, foreign invasion, civil war, and deliberate neglect. While the major Western states and the UN were committed in principle to establishing an effective and representative Afghan state, the parallel “war on terror” fought by US-led forces on Afghan soil had profoundly distorting effects. The international community represented in Afghanistan was divided over whether to prioritize fighting the war or consolidating the peace, and consequently in their willingness to pressure Afghan parties to disarm and reform. More directly, the US and some of its allies armed and paid Afghan commanders to participate in the war, thereby strengthening armed factions and their reliance on violence to maintain themselves. The UN disarmament program, as a result, was slow and incomplete.

The post-war Afghan government, then, was a loose coalition of armed, or partially disarmed, competing factions and internationally supported technocrats. Collectively they lacked both capacity and incentives to create an effective and accountable state that could have constrained violence. Removing a local strongman who abused his power, for instance, or prosecuting an official involved in land-grabbing at gunpoint, was very difficult; a person with the capacity to inflict serious harm on others usually also had political protection higher up, often because he was useful in the war. Except for the poor and the powerless, impunity prevailed.

A small international “security assistance” force (ISAF) was deployed to the capital, Kabul, where it helped deter open fighting and at least one planned military coup. However, the mission lacked the political support even to start addressing the security and order problems that plagued the immediate post-war period, including violence associated with the factional struggles for power and the drug economy, illegal confiscation of land, harassment and forced displacement of ethnic minorities, and the (p.280) everyday human rights violations committed by local strongmen and government officials against the population.

In sum, the key factors that structured the divided peace of the immediate post-Taliban order were defined by the contradictions of the transition. The political bargain reached in Bonn was inconclusive and did not reflect the balance of power on the ground, the parties to the bargain retained a capacity for armed action, the central state was weak yet strongly contested, and the international intervention that had brought about the post-war state was inextricably linked to continued warfare in ways that sharpened political conflict and encouraged impunity for everyday violence. Even discounting the legacy of nearly 25 years of violent strife and displacement, these conditions formed an environment ripe for multifaceted and multidirectional violence. The potential for violence was not only embedded in the unresolved struggle among the victors. Local points of tension, such as disputes over land that in more benign environments could have been defused or restrained by relevant authorities, were joined to the broader conflict of the transition and allowed to run a violent course.

D. Pacified peace

Liberia, by contrast, demonstrates a relatively peaceful post-war situation. Two important factors helped to define this post-war trajectory. First, peace negotiations involved all the relevant Liberian parties and in important respects reflected the military balance on the ground. Second, the UN and the major regional organization, the Economic Community of West African States (ECOWAS), established an international presence in the country that was massive relative to Liberia’s small size and population and had one overarching focus—the need to end the violence, implement the peace agreement, and establish at least a minimally effective and accountable state.31

When the final Comprehensive Peace Agreement was signed in 2003, the Liberian civil war had lasted for more than a decade, interspersed with short periods of relative calm, several abortive cease-fires and inconclusive negotiations. The protagonists were largely mobilized on ethnic/tribal grounds, with a changing list of rebel groups fighting the government forces. The decisive break in the war came when the United States and neighboring Guinea shifted their support from the government forces of Charles Taylor to rebel groups, enabling the main rebel group to gain control of about 80 percent of the country in 2002. Pressured by international forces, Taylor sued for peace in an agreement that led to his exile (and later arraignment before the Special Court for Sierra Leone), but included other members of the government as well as the principal rebel groups in a transitional administration. The transitional administration established by the peace agreement was extraordinarily inclusive, with the factional distribution of 21 government departments, 22 public corporations, and 22 autonomous agencies specified in the agreement. The transitional bargain held until the 2005 elections, when several former rebel commanders and faction leaders transited into the political arena through election or appointment by the new president, Ellen Johnson Sirleaf, an internationally supported technocrat. (p.281)

The political transition was supported by a huge international presence. The UN had authorized advance deployment of 3,500 ECOWAS troops to constrain the parties shortly before the peace agreement was signed. It was followed by a UN peacekeeping force of 15,000 troops, around 1,100 police (including armed police) and 250 military observers. For a country with a population just over three million and the size of Portugal, it meant a dense presence of soldiers with a broad mandate to maintain order and security, including providing security at government installations, ensuring freedom of movement, supporting the safe return of refugees and IDPs, and “protect[ing] civilians under imminent threat of physical violence” in areas around UN troops (Res. 1509/2003). The United Nations Mission in Liberia (UNMIL) also supervised the disarmament and demobilization of rebel forces. The program started immediately and, despite some snags, had by early 2005 completed the process for around 100,000 soldiers—just in time for the elections. Meanwhile, the army was restructured under the auspices of the United States.

The political bargain and UN-supervised disarmament of the rebels provided a reasonably stable framework for the post-war environment that limited politically oriented and other forms of collective violence. This was so even in the absence of an effective and accountable Liberian state, which was much more difficult to establish.32Institutions of justice and order, in particular the police, remained weak, creating concern about crime, gangs, and vigilante justice, such as lynching.

Liberia, then, was demilitarized and to that extent “pacified” by international forces in a way that Afghanistan obviously was not. This does not mean that a “Liberian solution” in terms of a heavier international presence from the outset would have reduced post-war violence in Afghanistan. The international presence helped constrain post-war violence in Liberia for several reasons: the internationals had one common objective—making and consolidating peace in Liberia, which was part of a larger regional conflict complex; the local parties were amenable to negotiations; and Liberia was a small country where a favorable ratio of peacekeepers to population and territory was within the financial reach of the UN. None of these conditions existed in Afghanistan.

E. The international context

How do we explain these different trajectories of war-to-peace transitions and consequent violence? As the above cases show, key factors are (i) the political bargain and balance of power on the ground at the time of the peace settlement; (ii) the political-normative framework for the new post-war order; and (iii) the presence or absence of institutions for managing violence, including, importantly, international forces and agencies. The importance of the international context is evident in all cases, and is of particular relevance in a discussion of the development of jus post bellum law. (p.282)

The importance of the international context is brought out by the sharp difference between the older cases (post-civil war Spain and the United States), and the contemporary cases unfolding within the framework of an active and at times intrusive international peacebuilding regime. Thus, international pressures constrained a certain kind of violence in post-war Guatemala (but certainly not all kinds), and extinguished or deterred most post-war violence in Liberia. Yet, as the Afghan case shows, international presence can also complicate and generate local violence.

In general, international peace operations have built-in contradictions between the objectives of autonomous local development and aid agency interests in short-term control. Large, international peace operations tend to undermine the development of effective and legitimate state power and institutions of justice that can defuse tension, address sources of conflict, and restrain violence. On the other hand, a pervasive international presence in post-war environments has increased the awareness and monitoring of violence and thereby exposed those responsible to potential counter-intervention. The rapid expansion of the human rights regimes during the past two decades in particular has greatly increased the capacity to monitor violations, advocate political, legal or educational intervention, and support local human rights organizations. Since the Rwandan genocide—where the UN system failed spectacularly—human rights field missions under the High Commissioner for Human Rights are routinely included in all UN peace operations.

The presence of armed international peacekeepers can be an effective constraint on some kinds of local violence, as statistical studies indicate.33 Yet much depends upon the type and strength of the presence. Some peacekeepers may resemble US federal troops in the post-bellum Southern states some 150 years ago—few in number, thinly stretched, and without a clear authorization to stop mob violence, riots or violence against civilians carried out by men armed with guns and political connections. In the Democratic Republic of the Congo, a UN peacekeeping force of almost 20,000 was unable to prevent widespread attacks on civilians and systematic violence associated with the illegal exploitation of natural resources in the country’s large eastern provinces.

On the other hand, some peacekeepers take on unconventional tasks to reduce post-war violence. The UN Stabilization Mission in Haiti (MINUSTAH) cleaned out armed gangs in Port-au-Prince, with savory effects that lasted for at least a couple of years until the massive earthquake of 2010. In Liberia, UNMIL troops defused tension and probably prevented violence when ex-combatants occupied rubber plantations. In the DRC, UN troops helped local police stop street fights during the 2006 elections that left more than a dozen dead in Kinshasa. In East Timor, it is often noted that violent street riots and fighting between factions of the police and army occurred after the UN peacekeepers had left and stopped when an international stabilization force was reintroduced. (p.283)

V. Conclusions

The growth of the international peacebuilding regime is a manifestation of the growing collective will during the past two decades to mediate an end to civil wars and stabilize the post-war situation with UN or regional peace operations. This stands in sharp contrast to the Cold War period, when the large powers conducted wars of proxy in much of the developing world, as well the international context of the two classic civil wars discussed here in the mid-twentieth and mid-nineteenth centuries.

The potentially constraining effect of international involvement on local wars and its aftermath is the foundational principle of the international peacebuilding regime and growing efforts to streamline, sharpen, but also broaden such interventions. In principle, that is also a justification for the development of a corpus of international law tailored to post-war situations. The discussion in this chapter, however, strikes a strong note of caution.

In a very general sense, the demands and needs of post-war situations are similar. Security, justice, political accountability, employment, and economic reconstructions are all needed. But because the post-war environments differ considerably, the strategies for dealing with these demands and needs must reflect local context. There is no such thing as “a post-war situation.” As this chapter has shown, “peace” can have many meanings. War-to-peace transitions may produce a highly fragmented society and a weak state (as in “divided peace”); a fragmented society but political bargains and international presence to rebuild the state and maintain the peace (“pacified peace”), a divided society where the ostensible loser remains capable of inflicting continuous violence on the ostensible winners, but through the use of informal structures (“loser’s peace”), or the winner may seize control of the state and use it effectively to create a new social order that entails a regime of violence or fear against particular population groups that were on the losing side of the war (“victor’s peace”).

Peacebuilding strategies would in some cases require restraining the state rather than building the state, restricting political participation (in order to prevent “armed politics”) rather than opening institutions in the name of democracy and political accountability, limiting economic liberalization to avoid a new layer of graft, delaying demobilization or dismantling of paramilitary police forces to avoid a security vacuum, and so on. In the international aid community, the need for peacebuilding strategies to be context specific is increasingly accepted. The development of jus post bellum, it would seem, must make similar concessions to local context.

Strategies to (re)establish order, stability, and justice in war-torn societies must also recognize that the problems are not only internal in nature. As the critical literature on peacebuilding has pointed out, problems of poverty, inequality, violence, organized crime, and armed politics are in a deeper sense typically connected to the international economic and political order, and the ways in which a post-war country is integrated into that order. Increasing globalization and openness across state boundaries have also facilitated illicit movement of goods and services that serve agents of violence, trafficking (of humans), and smuggling (of drugs and weapons). Production and trade of drug and “blood diamonds,” for instance, may undercut peacebuilding strategies (p.284) designed to enhance the revenues of the state and establish a post-war monopoly of legitimate force. Curbing such efforts by legal and coercive means, however, must take into account the essentially international nature of the venture and the importance of the demand side. In this respect, as well, the development of jus post bellum needs to be informed by the complexities of contemporary post-war situations.

Notes:

(1) Organization for Economic Co-operation and Development (OECD), “Principles for Good International Engagement in Fragile States and Situations” (April 2007). The OECD Declaration has ten principles.

(2) Nicholas Sambanis, “What Is Civil War? Conceptual and Empirical Complexities of an Operational Definition” (2004) 48 Journal of Conflict Resolution 814; David Keen, “War and Peace: What’s the Difference?” (2000) 7 International Peacekeeping 1.

(3) Nils Petter Gleditsch et al., “Armed Conflict 1946–2001: A New Dataset” (2002) 39 Journal of Peace Research 615.

(4) ILA, “Use of Force, Final Report on the Meaning of Armed Conflict in International Law, Presented to the Hague Conference 2010” (International Law Association 2010) <http://www.ila-hq.org/download.cfm/docid/2176DC63-D268-4133-8989A664754F9F87> (accessed 11 July 2013). The authors note the similarity to criteria used in the Uppsala data set, a standard data set used by political scientists, including Gleditsch et al., “Armed Conflict 1946–2001” (n. 3) fn. 2.

(5) Mats Berdal, Building Peace after War (International Institute of Strategic Studies 2009) 20–4.

(6) Dane Archer and Rosemary Gartner, “Violent Acts and Violent Times” (1976) 41 American Sociological Review 937.

(7) The ten OECD principles are: 1. Take context as the starting point; 2. Do no harm; 3. Focus on statebuilding as the central objective; 4. Prioritize prevention [of renewed conflict]; 5. Recognize the links between political, security and development objectives; 6. Promote non-discrimination as a basis for inclusive and stable societies; 7. Align with local priorities in different ways in different contexts; 8. Agree on practical coordination mechanisms between international actors; 9. Act fast [...] but stay engaged long enough to give success a chance; 10. Avoid pockets of exclusion [fragile states that receive little aid/attention]. OECD, “Principles for Good International Engagement in Fragile States and Situations” (n. 1).

(8) OECD, “A New Deal for Engagement in Fragile States” (International Dialogue on Peacebuilding and Statebuilding 2011) <http://www.newdeal4peace.org/> (accessed 17 June 2013).

(9) UN Secretary General, “Report of the Secretary-General on Peacebuilding in the Immediate Aftermath of Conflict” (11 June 2009) UN Doc. A/63/881-S/2009/304.

(10) A detailed study of 27 agreements in the period 1990–2006 prepared for the World Bank and UNDP found that a significant majority (70 percent) had at least one provision related to public administration and governance. Similarly, 81 percent had provisions relating to economic reconstruction and management. Provisions covering macro-economic policies, financial, business, investment, and labor regulatory frameworks and regional wealth allocations were more common in the agreements concluded towards the end of the period. Almost all agreements (85 percent) had at least one justice-related provision, and slightly over half (59 percent) had at least one justice-related provision other than general reference to human rights. Astri Suhrke, Torunn Wimpelmann, and Marcia Dawes, “Peace Processes and Statebuilding: Economic and Institutional Provisions of Peace Agreements” (Report, Chr. Michelsen Institute 2007) <http://www.cmi.no/publications/publication/?2689> (accessed 17 June 2013).

(11) David Chandler, International Statebuilding. The Rise of Post-Liberal Governance (Routledge 2010); Mark R. Duffield, Development, Security and Unending War: Governing the World of Peoples (Polity 2007), Roger Mac Ginty and Oliver Richmond, “Myth or Reality: Opposing Views on the Liberal Peace and Post-War Reconstruction” in Roger Mac Ginty and Oliver Richmond (eds), The Liberal Peace and Post-War Reconstruction (Routledge 2009); Shahrbanou Tadsjbakhsh (ed.), Rethinking the Liberal Peace (Routledge 2011).

(12) Roland Paris, At War’s End: Building Peace after Civil Conflict (Cambridge University Press 2004).

(13) Timothy D. Sisk, “Elections in Fragile States. Between Voice and Violence” (2008) (International Studies Association Annual Meeting, San Francisco, March 2008) <http://www.humansecuritygateway.com/documents/ISA_electionsinfragilestates.pdf> (accessed 17 June 2013) 1.

(14) See e.g. UN Secretary-General, “The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, Report of the Secretary-General to the Security Council” UN Doc. S/2011/634 (12 October 2011). See also an earlier version of the same title, UN Doc. S/2004/616 (23 August 2004) para. 10.

(15) Fourteen of the 27 agreements cited in Suhrke et al., “Peace Processes and Statebuilding” (n. 10).

(16) Elin Skaar, “Does Transitional Justice Promote Reconciliation?” (2012) 1 Transitional Justice Review 54; Oskar Thoms, James Ron, and Roland Paris, “The Effects of Transitional Justice Mechanisms: A Summary of Empirical Research Findings and Implications for Analysts and Practitioners” (2008) The Center for International Policy Working Paper <http://aix1.uottawa.ca/~rparis/CIPS_Transitional_Justice_April2008.pdf> (accessed 17 June 2013).

(17) Elin Skaar and Astri Suhrke (eds), “Special Issue: Drivers of Justice” (2013) 31 Nordic Journal of Human Rights 117.

(18) Christopher Cramer, “Trajectories of Accumulation through War and Peace” in Roland Paris and Timothy D. Sisk (eds), The Dilemmas of Statebuilding: Confronting Contradictions of Postwar Operations (Routledge, 2009); Michael Pugh, “Transformation in the Political Economy of Bosnia since Dayton” (2005) 11 International Peacekeeping 448.

(19) Anne L. Clunan and Harold A. Trinkunas (eds), Ungoverned Spaces. Alternatives to State Authority in an Era of Softened Sovereignty (Stanford University Press 2010); Thomas Risse (ed.), Governance without a State? (Columbia University Press 2011).

(20) James Fox and Dionisio Babo-Soares (eds), Out of the Ashes: Destruction and Reconstruction of East Timor (Australian National University Press 2003).

(21) Michael E. Hartmann and Agnieszka Klonowiecka-Milart, “Lost in Translation: Legal Transplants without Consensus-Based Adaptation” in Whit Mason (ed.), The Rule of Law in Afghanistan (Cambridge University Press 2011).

(22) For a further discussion, see Astri Suhrke, “The Peace in Between” in Astri Suhrke and Mats Berdal (eds), The Peace in Between: Post-War Violence and Peacebuilding (Routledge 2012) 1–38.

(23) Michael Richards, “Violence and the Post-Conflict State in Historical Perspective: Spain, 1936–48” in Suhrke and Berdal (eds), The Peace in Between (n. 22)

(24) Jean-Paul Chrétien and Richard Banégas (eds), The Recurring Great Lakes Crisis: Identity, Violence and Power (Columbia University Press 2011). Trine Eide, “Violence, Denial and Fear in Post-Genocide Rwanda,” in Suhrke and Berdal (eds), The Peace in Between (n. 22).

(25) Howard Adelman and Astri Suhrke (eds), The Path of a Genocide (Transaction Publishers 1999).

(26) Michael Beaton, “Reconstruction and Violence in the Post-Bellum American South 1865–77” in Suhrke and Berdal (eds), The Peace in Between (n. 22).

(27) John-Andrew McNeish and Oscar Lopez Rivera, “The Multiple Forms of Violence in Post-War Guatemala” in Suhrke and Berdal (eds), The Peace in Between (n. 22).

(28) Susan C. Peacock and Adriana Beltrȧn, “Hidden Powers in Post-Conflict Guatemala: Illegal Armed Groups and the Forces Behind Them” (Report, Washington Office on Latin America 2003).

(29) This section draws on chs 1–3 of Astri Suhrke, When More Is Less. The International Project in Afghanistan (Hurst & Co and Columbia University Press 2011).

(30) Antonio Giustozzi, “Armed Politics in Afghanistan” in Suhrke and Berdal (eds), The Peace in Between (n. 22).

(31) Torunn Wimpelmann Chaudhary, “The Political Economies of Violence in Post-War Liberia” in Suhrke and Berdal (eds), The Peace in Between (n. 22).

(32) A joint WB/UNDP mission to Liberia in 2009 uttered a sign of despair. Despite the huge international investment and a national leader recognized for her integrity, cooperation and will to reform, the mission found that the results were deeply disappointing. The country was at peace, but the state remained fragile. “It is even possible that the unspoken overall goal of the aid community, i.e. reconstituting Liberia as a functioning Weberian state, is not attainable.” World Bank and UNDP, Report of the Technical Mission to Liberia on State Building in Fragile and Post-Conflict Contexts (Washington, D.C.: World Bank, 2009) 17.

(33) Michael W. Doyle and Nicholas Sambanis, Making War and Building Peace: United Nations Peace Operations (Princeton University Press, 2006).