Conflict Resolution vs Human Rights

Sally Engle Merry
New York U

Sally Engle Merry

Born in the 1970s, the burgeoning field of conflict resolution has claimed to provide more conciliatory and appropriate settlements than has the law. But what does a resolved conflict look like? Is it simply the absence of violence and contention? Or does it require a sense that the resolution is just and fair? Peace studies scholars have long argued that there is a significant difference between what they call negative peace, or the cessation of conflict, and positive peace, the absence of conflict based on recognition of a fair settlement and a just allocation of power.

Negative and Positive Peace
Indeed, it is possible for deeply repressive situations to seem more peaceful than those wracked by ongoing struggles over power and position. For example, the rigid racial hierarchy in the American South in the 1930s that John Dollard described in Caste and Class in a Southern Town is a classic example of a society that, on the surface, appears devoid of conflict, even though its hierarchy is maintained by periodic violence such as lynching and by economic forces and rituals of degradation. It was only in the 1950s with the possibility of dismantling the rigid racial hierarchy and the Jim Crow laws that maintained it that the situation moved toward one of open conflict.

Similarly, patriarchal kinship systems with an authoritarian male role supported by disproportionate economic and political power and permission to exercise sporadic acts of violence against women often provide the aura of a conflict-free family situation. Repression of women inhibits actual conflict. In contrast, in my research on domestic violence in the US, I found that conflict flares when men are insecure about their control over their partners and women are willing to contest their subordination. Violence erupts when they start fighting back and demanding greater equality.

Similar issues dog efforts to settle ethno-national and international conflicts. Peacemakers must often choose between terminating open conflict, even through repressive means, or searching out justice by punishing perpetrators. It is not unusual for those negotiating a peace agreement to differ from those seeking to protect human rights. While both groups would like to establish a just peace, they disagree about how to weight peace vs justice.

Accounts of negotiators trying to end major conflicts, such as Richard Holbrooke’s story of his efforts to negotiate the 1995 Dayton Peace Accords for Bosnia and Herzegovina recounted in To End a War, indicate that conflict resolvers strive to craft an agreement that both sides will accept. As scholars of mediation have long recognized, such agreements represent the best that the weaker party can do and the most that the stronger party is willing to give, rather than the fairest outcome. Clearly, a third party can pressure, cajole or contribute resources to balance these inequalities, as Jimmy Carter did in negotiating the 1978 Camp David Accords between Israel and Egypt, but such agreements inevitably reflect the power relationship between the parties.

Truth Commissions and Tribunals
The tension between peace and justice appears in one of the fastest growing fields of international justice: the use of tribunals of various kinds to restore peace after internal social conflict. Many of the first tribunals focused on peace. The South African Truth and Reconciliation Commission is the most famous of these, but there are many others such as the recent Truth Commission in Peru. Truth commissions seek to uncover histories of violence through victim testimony and use processes of apology, repentance, forgiveness and amnesty to reconcile warring factions. Although there are debates about the goals of these truth commissions, some claim that they are cathartic for victims, helping them to interpret their suffering as martyrdom for the nation.

There was a strong Christian dimension to the South African commission with a focus on forgiveness. Some argue that this model tends to let perpetrator repentance slide out of sight and while emphasizing the duty of victims to forgive. Skeptics note that the commission offers an easy amnesty for perpetrators even if they fail to apologize or show remorse or repentance. In The Politics of Truth and Reconciliation in South Africa, Richard Wilson argues that the residents of the poor townships in Johannesburg would prefer justice to reconciliation. Many victims sought reparations, but despite the government’s intention to pay, this initiative has stalled.

Since the early 1990s, a new model of transitional justice has appeared that focuses on holding perpetrators of serious crimes against humanity accountable. This model focuses on punishment and justice rather than peace. The international community has developed and funded two tribunals focused on punishing perpetrators of ethnic cleansing and genocide in the former Yugoslavia and Rwanda. The International Criminal Court, recently established as a permanent court to handle cases of crimes against humanity around the world, is a global version of these two courts.

These courts use prosecutors to gather evidence and build a case against particular defendants. Their procedures are typically painstakingly slow, involving massive amounts of data collection. They are also bitterly expensive. Not surprisingly, they can only handle a small number of perpetrators. These courts focus on those who exercised authority and made decisions rather than those who carried them out.

When a genocide involves widespread participation in the killing, as it did in Rwanda in 1994, it is impossible to try all the perpetrators. In Rwanda, one solution is to move less severe cases to community-based conflict resolution bodies, gacacas. Although these are presented as conciliatory mechanisms rooted in tradition, they are actually a new creation of the government, named after an earlier but now defunct village institution. They are charged with using informal, village-based processes to sort out who was responsible for the killings and reconcile them, clearly a difficult and politically fraught task within a local community of people who must still live together.

Neither of these mechanisms is adequate by itself. Truth commissions without teeth paper over past injuries and offer victims little in the way of comfort or reparations. Formal tribunals punish only a small number of perpetrators at great expense and run the risk of acquittal if the evidence is unclear. There are now efforts to develop a “hybrid” mechanism that offers both reconciliation and punishment, but these goals are often incompatible.

Consider Peace and Justice Together
In sum, the tension between peace and justice, here described as that between resolving conflicts and protecting human rights, runs through both domestic and international efforts to deal with conflict. The important point is that resolving conflicts without providing justice is doomed to fail. It can send a message that one can mobilize a militia and attack one’s neighbors with impunity, then negotiate a settlement. On the other hand, prosecuting human rights violators or threatening to do so can discourage military leaders from ending conflict.

As shown by the case studies in a new collection, The Practice of Human Rights, this tension runs through human rights endeavors as well. Although difficult, research shows that it is essential to consider peace and justice together, to think about peacemaking and punishing human rights violators at the same time.

Sally Engle Merry is professor of anthropology and director of the law and society program at New York University. Her recent books include Colonizing Hawai‘i: The Cultural Power of Law (2000), Human Rights and Gender Violence: Translating International Law into Local Justice (2006) and The Practice of Human Rights: Tracking Law Between the Local and the Global (co-edited with Mark Goodale, 2007). She is past president of the Law and Society Association and the Association for Political and Legal Anthropology and a member of the AAA Executive Board.