20 June 2018

Does accountability for international crimes committed during a conflict lead to sustainable peace?

In 2015 the Sri Lankan government co-sponsored UN Human Rights Council Resolution 30/1 on promoting reconciliation, accountability and human rights in Sri Lanka. By doing so, the government undertook to set up a judicial mechanism, amongst other things, to investigate allegations of human rights and international humanitarian law violations that were perpetrated by both sides to the civil war. This mechanism would include involvement of international experts.

The government’s commitment has been met with outright resistance by some groups in Sri Lanka, and the government itself has backtracked on its promise to have international participation in a judicial mechanism. President Sirisena and prominent members of the government have indicated that there will not be international participation in prosecutions as international actors should not interfere with Sri Lanka’s internal matters. However, some Sri Lankan legal commentators have argued that prosecutions are necessary if Sri Lanka is to effectively address the entrenched culture of impunity that fuelled insecurity, fear and ultimately the ethnic conflict.

This begs the question, whether trials − conducted nationally or internationally for international crimes committed during a civil war − help bring about sustainable peace in a post-war country?

In their recent in-depth study, Assistant Professors Geoff Dancy and Eric Wiebelhaus-Brahm sought to answer this very question by analysing whether there is a link between post war criminal prosecutions and conflict recurrence. Previously, the debate was considered unresolved because few researchers had examined this question empirically by observing experiences of post-conflict societies. And where empirical research existed, the researchers had not adequately taken into account the nuances in each post conflict setting. Dancy and Wiebelhaus-Brahm sought to address these gaps in existing literature by conducting their own empirical study.

The researchers examined a data set of 263 post conflict periods over a forty-year timeframe (1970- 2010). The researchers recorded all prosecutions that occurred in that period and then analysed whether a statistical relationship exists between prosecutions and duration of periods of peace after a war had ended. The researchers categorized trials into three groups: domestic prosecutions of state agents; domestic prosecutions of opposition groups such as rebel groups that fought the State during the civil war; and international prosecutions of both. International prosecutions constitute trials that are completely international in nature, such as prosecutions before the International Criminal Court, as well as hybrid courts that are operated by both international and domestic actors.

The study came to four main conclusions. First, amnesties (official pardons for people who have committed crimes) are associated with a decreased risk of conflict recurrence in the short term (first five years after a war has ended), but do not play any role in sustaining peace in the long run. Second, domestic prosecutions of state agents do not disrupt the peace in the short term, and significantly decrease the risk of conflict recurrence by 53% in the long run. The study also found that prosecuting high ranking state agents decreased the risk of conflict recurrence in the long run. Third, domestic prosecutions of rebel groups that fought the State during a civil war and were militarily defeated do not have a significant impact in increasing or decreasing the probability of peace in the long term. Finally, international trials did not increase the risk of conflict recurrence in the short or long term.

Notably, the research demonstrates that there is a correlation between domestic trials of state agents who allegedly committed grave violations during a civil war and decreased risk of conflict reoccurring in the long run. Stage agents include government officials and members of the military. Importantly, a higher number of prosecutions of high ranking state officials and a higher number of guilty verdicts also correlate to longer durations of peace after a war has ended. Also, international trials were found to be associated with a less likelihood of conflict recurrence.

In sum, the answer to the question, “do trials conducted nationally or internationally for international crimes committed during civil wars help bring about sustainable peace?” is yes. There is a positive correlation between trials and peace in the long run. This might be because governments increase the credibility of their commitment to peace by prosecuting those who have committed terrible abuses, even when it is politically difficult to do so. It may also be because trials set standards on what is considered acceptable behaviour during war, and provides a general deterrent to others to prevent future abuses. Perpetrators who understand that their actions could lead to serious repercussions including long jail times may think twice before violating human rights. Developing rules, norms and institutions for accountability could go towards transforming potentially violent actors into non-violent players.

Therefore, if the government is serious about accountability and ensuring sustainable peace in Sri Lanka, the evidence suggests that setting up a Special Court with international involvement to try crimes committed by both sides during the war is an important step. It is a step that could go towards addressing Sri Lanka’s violent past and securing a peaceful future.

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