Jamie M. Thomas, is a Program Manager at the Forum of Federations and Liam Whittington is a Senior Program Manager at the Forum of Federations. They primarily work on the Forum’s thematic research team where Jamie leads on state fragility and Liam leads on digitalization and artificial intelligence. They also have contributed to Forum programming in various countries including Myanmar, Cyprus, Cuba, and Pakistan.
Abstract
The transition from conflict to peace is often as much about how people perceive a settlement as it is about how a settlement is constructed. Despite this, the interactions between multilevel governance structures, justice, and peace in post-conflict contexts remain underexplored. This leads to two questions 1) Do processes of federalization, peacebuilding, and transitional justice interact in the peace process? And 2) if they do interact, how do these interactions impact eventual settlements? While every conflict is context dependent, the transition experiences of South Africa and Nepal suggest that there is an important interaction between these three dynamics.
Introduction
From Kiev to Khartoum, Goma to Gaza City, violent conflict continues to be a feature of global instability with implications for those directly affected and the international community. In an ever more interconnected world, there is a need for a greater understanding of peacebuilding dynamics, how violent conflicts can be ended, and how peace can be built and sustained. Federalism has long been proposed as form of power-sharing which can assist in the resolution of conflicts by providing mechanisms that allow diverse and sometimes deeply divided societies to be accommodated within a governance system that protects the interests and autonomy of various groups. In post-conflict countries, transitional justice (TJ) processes have also been seen as important components of a peace settlement. Previously, these two elements of peacebuilding have been treated separately in both theory and practice. However, our research on Nepal and South Africa suggests that integrating questions of governance and justice during and throughout transitions may help in supporting sustainable and durable peace. These cases illustrate key dynamics at play in two federal/quasi-federal countries from which we have identified five key concepts that can help to further the understanding of the interactions between federalism and TJ.
The Connected but Distinct Dichotomy
Both federalism and TJ are designed (at least in theory) to address issues such as: the distribution of resources; access to and exercise of power and autonomy; and the establishment of representative governance institutions to protect interests and provide accountability. Additionally, trust and trust building are crucial components in both creating and sustaining peace in post-conflict governance settlements and our research indicates that trust can and should be perceived a broad concept in these contexts. This encapsulates confidence in formerly conflicting parties adhering to their promises after conflict, confidence that institutions will protect the interests of all groups, and confidence that justice will be served formally within the institutional design of the new state. Alongside addressing grievances, principles of federalism and TJ are both perceived as components that can facilitate trust building. However, if ineffectively implemented or designed, they can also contribute to eroding existing trust and threaten peacebuilding efforts within an already fragile post-conflict society.
Despite the clear connections between federalism and TJ, in practice the two are often treated distinctly in settlement processes. In South Africa and Nepal, multilevel governance arrangements and provisions for justice were embedded in the new constitutions, yet both were treated separately when it came to the functional design process for the new state and its institutions. In the South African case, justice issues and future governance structures were given substantial consideration at the constitutional conferences. But questions of governance and justice were dealt with independently under two separate working groups/committees, comprised of different experts (Barnes and De Klerk, 2002, pp.26-33). Similar dynamics can be seen in Nepal, where under the 2006 Comprehensive Peace Agreement, constitution-building and transitional justice were included as two separate components (Cats-Baril, 2019, p.58). This was later reflected in the 2015 constitution, wherein many of the federal design features intended to redistribute access to power in Nepal were weakened and a clear link between TJ processes and the constitution was not established.
These cases suggest that if federalism, peacebuilding, and TJ are treated separately at key points in the transition process – particularly during the elaboration of new state architectures – opportunities may be missed to establish more integrated approaches to governance and justice. A more integrated approach may support social cohesion and can reduce the risk that governance and justice institutions fail to complement one another and effectively fulfil their functions. There may be valid reasons for treating governance development and TJ processes as distinct, particularly early in a transition process. However, the failure to address or consider questions of governance and justice concurrently may increase the likelihood of citizens perceiving that the deep-seated grievances which drove conflict have not been sufficiently addressed and reflected in the institutional design of the state.
Temporal Considerations
When it comes to processes of federalism, peacebuilding, and TJ, what is needed to reach a settlement in the short term is not necessarily the same as what is required to sustain that settlement in the long-term. The interests of parties, as well as the endogenous and exogenous pressures that impact them, shift over time. Decisions made on governance and justice issues in the short-term to secure a transition process may have downstream consequences in the long-term. This can occur when conditions, incentives and priorities change, especially if lingering grievances remain unaddressed. A settlement that produces a federal/quasi-federal structure which does not adequately implement aspects of TJ to the satisfaction of those who hold grievance may fail to properly address issues that have the potential to re-emerge and drive instability. For example, in the short-term, it may be necessary to integrate perpetrators in positions of power within a post-conflict settlement. The amnesty provisions included in the South African reconciliation process reflect this dynamic. As a pragmatic approach to ending and preventing further violence, this may allow a society to achieve stability in the short-term, but can undermine trust and accountability in the long-term.
These dynamics can be seen years after the end of conflict – our research indicates that many of the current justice-related grievances in both South Africa and Nepal are inextricably linked to the architecture of the state, and issues that were not adequately addressed during transition. This raises the question of how settlements involving federalization and TJ processes can be designed with the flexibility to overcome the inherent tensions between the requirements of short- and long-term peacebuilding over time (See for example: McCulloch and McEvoy, 2020; Keil and McCulloch, 2021).
Subject to and Products of Negotiation
When it comes to processes of federalism, peacebuilding, and TJ, what is needed to reach a settlement in the short term is not necessarily the same as what is required to sustain that settlement in the long-term. The interests of parties, as well as the endogenous and exogenous pressures that impact them, shift over time. Decisions made on governance and justice issues in the short-term to secure a transition process may have downstream consequences in the long-term. This can occur when conditions, incentives and priorities change, especially if lingering grievances remain unaddressed. A settlement that produces a federal/quasi-federal structure which does not adequately implement aspects of TJ to the satisfaction of those who hold grievance may fail to properly address issues that have the potential to re-emerge and drive instability. For example, in the short-term, it may be necessary to integrate perpetrators in positions of power within a post-conflict settlement. The amnesty provisions included in the South African reconciliation process reflect this dynamic. As a pragmatic approach to ending and preventing further violence, this may allow a society to achieve stability in the short-term, but can undermine trust and accountability in the long-term.
These dynamics can be seen years after the end of conflict – our research indicates that many of the current justice-related grievances in both South Africa and Nepal are inextricably linked to the architecture of the state, and issues that were not adequately addressed during transition. This raises the question of how settlements involving federalization and TJ processes can be designed with the flexibility to overcome the inherent tensions between the requirements of short- and long-term peacebuilding over time (See for example: McCulloch and McEvoy, 2020; Keil and McCulloch, 2021).
Function of the State
The nature of transitions necessitates reflections about the goals and priorities of the post-conflict governance system. Expectations of the role and functions of the state may vary, but broadly speaking these responsibilities include providing economic opportunities, public goods, and self-determination for the peoples that comprise the polity.
In South Africa and Nepal, (quasi)federal architectures were adopted to provide a governance structure that could accommodate the interests of formerly conflicting parties and victims. These structures aimed to empower groups along territorial lines in order to address grievances related to issues of access to power, resources, autonomy, accountability, self-determination, and freedom. Additionally, in both cases the institutional design was the by-product of compromises needed to re-assure conflicting parties that their interests would be protected and represented in the new state structure. Some argue that the devolution of power and authority that federal structures provide means that groups previously marginalized are compensated in the post-settlement state through gaining access to decision-making arenas previously unavailable to them (See for example: Elazar, 1994). In South Africa and Nepal, despite TJ mechanisms such as truth and reconciliation commissions either taking place or being promised, the actual implementation of justice – the structural attempts to tackle the drivers of conflict – was inherently mediated through the institutions of the state.
However, if the institutions of the (quasi)federal state do not function effectively, and especially if they are perceived as failing to deliver for citizens at the local level, people may feel that outstanding questions of justice have not adequately been addressed. If people perceive that that post-conflict settlement is not providing the benefits and protections it promised to, the risk of reoccurrence of violence may be increased. This highlights the interrelationship between questions of justice and governance in post-conflict (quasi)federal countries, particularly in systems where the subnational level fails to provide the self-determination and service delivery which can reduce the risk of conflict.
Nature of Justice
Alongside questions concerning state architecture, the form of TJ a society deems necessary provokes questions concerning what kind of justice is best able to support long-term peace within newly formed states. Despite the presence and recognition of international standards of justice, in both the South Africa and Nepal cases, the implementation of certain forms of TJ were unattainable for pragmatic reasons. In both countries, each settlement was largely a product of negotiated compromise, which by necessity made retributive forms of justice less appealing as these mechanisms may have diminished the incentives to reach a settlement. In South Africa for example, the process of reconciliation required an open dialogue about the crimes of apartheid, which would have been made more difficult with a punitive approach.
This raises the question of compensatory justice as a form of TJ and how (quasi)federal governance arrangements may facilitate or hinder its implementation. In our interviews with stakeholders, the links between aspects of justice and state building were repeatedly highlighted. The data suggests that in both South Africa and Nepal, serving justice is a means through which a nascent (quasi)federal system may be legitimized and can contribute to long term reconciliation and social cohesion.
While the implementation of TJ may act as a legitimizing force in a post-conflict (quasi)federal state, if not adequately addressed it can also undermine the process of post-conflict reconciliation. One of the reasons behind the stalled implementation of TJ in Nepal is that the current elites from formerly conflicting parties now have a stake in the post-conflict state and little incentive to revisit the crimes of the past. This is reflective of the idea that in many cases, state building and TJ are often elite-driven. While this is sometimes a pragmatic necessity, it raises questions concerning the role of subnational levels and institutions in engaging in TJ. In both South Africa and Nepal, TJ has been almost exclusively addressed by the state at the national level. In Nepal, this issue is especially apparent because the national level political elites continue to block the full implementation of constitutionally mandated TJ mechanisms and those at the subnational level have neither the power nor the capacity to address them.
Implications of Interaction
So, what are the implications of the interactions between federalism and transitional justice for peacebuilding? In South Africa and Nepal, questions of (quasi)federalism and transitional justice have overlapped in the ways in which a post-conflict state seeks to address the fundamental causes of conflict and provide mechanisms for resolving the grievances that drove violence. However, the separate treatment of these processes has undermined the ability of the state to fulfill its functions as initially conceived and produce results in the long term that meet the requirements of the post-conflict environment. For example, in both South Africa and Nepal the allocation of resources (a source of grievance) was a question both of justice and of governance functions in the post-conflict settlement. And arguably, as the cases suggest, neither justice mechanisms nor the governance structures established in the settlement have been able to adequately address this issue in isolation.
The failure of post-conflict arrangements to adequately deal with grievances has led to the legitimacy of the multilevel governance structures established by the settlement being called into question. The institutions of the state – both national and subnational – have faced challenges in delivering on the promises of the settlement and delivering the forms of justice considered most important by victims.
For stakeholders involved in peacebuilding processes where federal/multilevel structures are being considered, the integration of TJ provisions with governance questions may provide the foundation for more durable settlements reflective of citizen expectations. Experience has shown that there are no guarantees in peacebuilding, but by making the effort to better connect justice and governance we can increase the chances of fostering successful long-term settlements in post-conflict contexts.
Bibliography
Barnes, Catherine and Eldred De Klerk. “South Africa’s Multi-Party Constitutional Negotiation Process,” in Accord: An International Review of Peace Initiatives – Owning the Process – Public Participation in Peacemaking 13 (2002): 26-33. https://www.c-r.org/accord/public-participation/mali-key-texts-accord-public-participation.
Cats-Baril, Amanda. “Moving Beyond Transitions to Transformation: Interactions Between Transitional Justice and Constitution Building,” International Institute for Democracy and Electoral Assistance (IDEA), Policy Paper 22 (2019): 58.
Elazar, Daniel J. Federalism and the Way to Peace (Kingston: Institute of Intergovernmental Relations, 1994).
Keil, Soeren and Allison McCulloch, “Conclusion: The Past, Present and Future of Power-Sharing in Europe,” in Power-Sharing in Europe: Past Practice, Present Cases, and Future Directions, ed. Soeren Keil and Allison McCulloch (Cham: Palgrave Macmillan, 2021).
McCulloch, Allison and Joanne McEvoy, “Understanding Power-Sharing Performance: A Lifecycle Approach,” Studies in Ethnicity and Nationalism 20, no. 2 (2020): 109-116. https://doi.org/10.1111/sena.12326.
*This blog is based on a forthcoming journal article in L’europe en formation https://www.cife.eu/en/5/description_300-1*
Further Reading
United Nations and World Bank, “Pathways for Peace: Inclusive Approaches to Preventing Violent Conflict,” (New York: 2018). https://www.pathwaysforpeace.org/.
Simic, Olivera. An Introduction to Transitional Justice (Routledge, 2017).
Steytler, Nico. “The Withering Away of Politically Salient Territorial Cleavages in South Africa and the Emergence of Watermark Ethnic Federalism,” Occasional Paper 36 (Forum of Federations, 2019).
Malagodi, Mara. “Godot Has Arrived! – Federal Restructuring in Nepal,” Occasional Paper 33 (Forum of Federations, 2019).