Drawing a Line in the Sand: Resolving Conflict

This blog looks at a number of concepts relevant to removing the fears of what might happen when conflict between or within countries ends so that the parties to the conflict can move forward. It is about the difficulties of drawing a line in the sand so that conflict can be relegated to the past

Background
 
One of the obstacles to peace following conflict between countries, or in cases of civil war, between communities within countries, is the fear among the leaders of the different sides in the conflict that they and their followers will be punished for crimes committed, or alleged to have been committed, during the conflict. In a number of conflict situations around the world, the parties in conflict may prefer to perpetuate a condition of continuing conflict or at best an armed truce to avoid the possibility of being held to account for what has happened or might be alleged to have happened. Such fears may also shape the nature of post-conflict constitutional arrangements so that the means of control or intervention are ready at hand. For example, the restoration of civilian rule in Myanmar may have been slowed and shaped by such concerns.
 
The fears of what might happen post-conflict centre on the possibility of retribution where former opponents could get into positions to take revenge for harm they received during the conflict. Post-conflict, the law may be used for retributive purposes in the shape of ‘victors’ justice. Even if the former parties to the conflict have agreed not to pursue their conflict in any form after the peace, including via the law, there remains the possibility that outside parties, such as international organisations or INGOs, will use international human rights norms and mechanisms as a way to punish and to seek reparations for harms committed during the conflict. 
 
There is also the fear that gains that accumulated during the conflict will be removed or have to be relinquished. These may be financial gains, for example, commissions earned and invested from weapons contracts or from the control of trade routes. They may also involve territorial gains, for example Israeli settlements in the West Bank. 
 
For all these reasons, peace will not be looked on as the unmitigated blessing that outside observers might suppose. Internal fears about the post-conflict future may delay the arrival of peace even if the parties wish for conflict to end.
 
Relevant norms
 
Against this background there are five relevant normative concepts that can help illuminate the reservations about post-conflict peace that may need to be resolved. They centre on the norms of retribution, restitution, restoration, and reconciliation. The final relevant norm is that of ‘oblivion’. in this last case all possible claims for retribution, restitution, and restoration, are put aside in favour of unconditional amnesty to all involved in order to draw a line in the sand and move on. The concepts are used in the law and may inform the law but are equally if not more relevant to the politics of peace. 
 
Cultural bounding
 
Further complicating the picture is that the relevant concepts are culturally bounded. Cultural bounding affects the applicability, interpretation, and weight given to each of the different relevant norms. Thus, the norm of retribution may invoke different responses depending on prevailing religious beliefs. For example, the Abrahamic religions may be more receptive to norms of retribution than Buddhism. The application of norms also has to be informed by facts. Cultural bounding can lead to different perceptions of all the surrounding ‘facts’ – the perception of the context, the reference points, and the framing of the normative issue. For example, the Oct 2023 start of the current Israeli/ Palestinian conflict is framed by Israelis to start with the attack by Hamas on Israeli settlements. The start as seen by many Palestinians goes back to the Israeli treatment of the Palestinian population since the formation of the Israeli state in 1948. From a Palestinian cultural perspective, it is this longer historical context of mistreatment that is key. It is a mistake to assume that there are universally agreed normative principles ready to be taken off the shelf and easily applied from the context of conflict to the context of peace. 
 
Retribution
 
Retributive norms are deeply embedded in ‘Western’ concepts of justice. The wrongdoer deserves punishment is seen as a simple principle of everyday justice. Nevertheless, the idea that a justified punishment awaits those that have committed wrongdoing may be a powerful incentive for those who are involved in conflict to continue the conflict. During Myanmar’s civil war the Rohingya have been forcibly displaced and largely expelled to live as refugees in Bangladesh. If the perpetrators of the expulsion, or any other alleged crimes that took place during the conflict, feel that punishment awaits them when peace is established, then the end to conflict may be viewed with reservations. Power structures in post conflict civilian rule may be shaped to reduce these fears.
 
Other normative considerations may intervene to block retribution. When post war West German government was re-established following Hitler’s defeat many former Nazis, including many members of the judiciary, escaped retribution because the creation of a functioning non-communist government was seen to be more important. 
 
Wherever there is uncertainty about the possibility of retribution being taken and lack of clarity over the circumstances under which retribution might be waived there will be hesitations in the peace process. Adding to the uncertainties about what might happen within a state is that in the contemporary world international law may be invoked as a means of redress and retribution. This could include action taken under the auspices of the International Court of Justice on human rights grounds and/or the International Criminal Court (2002) or under the ECHR. The authority of these courts might therefore have to be denied or curtailed in order to give peace a chance.
 
Restitution
 
Restitution where objects or properties or land and territories taken in conflict are returned to the original ownership are sometimes viewed as a normatively desirable consequence of peace. The restitution of artworks or property taken from Jews in Nazi Germany or the restitution of the bronzes taken from Benin during a 19th century British military expedition are familiar cases in point. 
 
Nevertheless, restitution may not be normatively clear cut. Views as to what constitute rightful legal ownership may change over time particularly where ownership has been ascribed by a colonial power or territories delineated by former powers. In the Interwar period, ownership of the Aland Islands was contested between Sweden and Finland following the end of Russian rule. In addition, perceptions of what constitutes rightful ownership may themselves also be in dispute. For example, the need for the restitution of land and settlements by Israel to their original Palestinian owners is contested. 
 
Restoration
 
Restoration is a broader concept than restitution. It refers to the effort to recognise the original status of matters before any conflict arose. While restitution may play a part in restoring matters to where they once were pre-conflict, restoration also includes other dimensions, notably restoration of status and the idea of compensation for damages.
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The advantage of restoration is that it acknowledges that wrongs were committed but does not necessarily seek or imply direct retribution against those who committed the wrongs. The admission of wrongs, the restoration of status and the case for compensation has been recognised in situations involving the historical treatment of indigenous populations. However, in cases of current conflict it is not always easily applied. In the case of Myanmar, the Rohingya might wish to see their status as citizens of Myanmar restored and to receive compensation for their displacement in some form. However, as this example shows, restoration may not be readily accepted as an applicable norm.
 
Reconciliation
 
The normative importance of reconciliation has been highlighted by the Truth and Reconciliation procedures established in S. Africa at the end of the apartheid era. The basic idea is that the process of reconciliation can be speeded if the full facts are brought out rather than grievances allowed to fester. Following what was seen as the success of the S African model, about 40 analogous Truth and Reconciliation procedures have been deployed around the world in various forms. 
 
Finding out what really happened does not necessarily imply that retribution or compensation will follow or take place alongside. In the case of S. Africa, amnesty was given in return for disclosure and compensation for victims was included. Retribution was not a part. In other cases, the attempt to establish the facts is also associated with retribution. For example, in the case of Cambodia judicial tribunals were established as a first step to pursue retribution against those responsible for the atrocities under the Pol Pot regime and a more informal truth discovery process has come later.
 
The underlying difficulty is to demarcate between processes establishing facts and processes triggering retribution. If establishing the truth is seen as likely to be used as a tool for retributive action then reconciliation processes will be viewed with suspicion by those who may be the targets of retribution. Full disclosure may be inhibited by fears of self-incrimination or by acts of revenge on those incriminated by witnesses. If retribution is not allowed then victims may feel continuing grievance. The uneasy relationship between the desire to establish the truth and the desire for redress and retribution is illustrated by the difficulties associated with conditional immunity in the UK’s 2023 N. Ireland Reconciliation Act. Again, the application of international norms (under ECHR) has been a complicating factor.
 
Oblivion
 
After the English civil war, Cromwell’s interregnum and the restoration of the monarchy, an act of Parliament was passed in 1660 (usually referred to as the Act of Oblivion) giving a general amnesty in respect of all acts connected with the war. The notable exception was in respect of the regicides – those directly involved in the decision to execute Charles I. Royalists who lost land and property did not have it restored to them. Despite simmering religious divisions that led to the so-called ‘Glorious Revolution ‘of 1688/89 when the Stuarts were expelled, the act is regarded as having contributed to heal the political and social divisions.
 
The act of oblivion suggests that the best way of drawing a line in the sand is simply to grant a general amnesty for anyone who might be accused of wrong-doing, to forget about the restitution of property or more general acts of restorative justice, to set aside selective retributive actions that might accompany truth and reconciliation procedures and simply move on. 
 
Conclusions
 
Drawing a line in the sand after conflict is not a straightforward normative question. It is likely to involve taking a step back from the internationalisation of rules of behaviour between and within states based on human rights grounds. It may involve setting aside the norms associated with reparations, restoration, restitution and retribution. At the same time, from a normative perspective, memories of what happened need to be recorded. There therefore still needs to be some form of official record-keeping and record gathering associated with amnesties and separated from the possibility of retribution.
 
From a normative perspective, drawing a line on the sand through blanket amnesties for all alleged offences may still be justified as a means to pass out of conflict while ensuring that a record can be made and memories respected. It places the highest value on peace itself. If general amnesties achieve peace then they are consistent with international aspirations for a world at peace even if the jurisdiction of international courts is denied.