Anthropology News • October 2007

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I N F O C U S

SALLY ENGLE MERRY

NEW YORK U

B orn in the 1970s, the burgeoning fi eld of confl ict resolution has claimed to provide

more conciliatory and appropriate settlements than has the law. But

what does a resolved con-fl ict look like? Is it simply the absence of vio-lence and con-tention? Or does it require a sense that the resolution is just and fair?

Peace studies scholars have long argued that there is a signifi cant difference between what they call negative peace, or the cessation of confl ict, and positive peace, the absence of confl ict based on rec-ognition of a fair settlement and a just allocation of power.

Negative and Positive PeaceIndeed, it is possible for deeply re-pressive situations to seem more peaceful than those wracked by on-going struggles over power and po-sition. For example, the rigid racial hierarchy in the American South in the 1930s that John Dollard de-scribed in Caste and Class in a South-ern Town is a classic example of a society that, on the surface, appears devoid of confl ict, even though its hierarchy is maintained by periodic violence such as lynching and by economic forces and rituals of deg-radation. 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 confl ict.

Similarly, patriarchal kinship sys-tems with an authoritarian male role supported by disproportionate eco-nomic and political power and per-mission to exercise sporadic acts of violence against women often pro-vide the aura of a conflict-free fam-ily 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

Conflict Resolution vs Human Rightswhen 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 seek-ing 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 try-ing 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 agree-ment that both sides will accept. As scholars of mediation have long recognized, such agreements repre-sent the best that the weaker party can do and the most that the stron-ger 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 inevi-tably reflect the power relationship between the parties.

Truth Commissions and TribunalsThe tension between peace and justice appears in one of the fastest growing fi elds of international jus-tice: the use of tribunals of various kinds to restore peace after internal social confl ict. Many of the fi rst tri-bunals 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 Commis-sion in Peru. Truth commissions seek to uncover histories of violence through victim testimony and use processes of apology, repentance, forgiveness and amnesty to recon-cile warring factions. Although there are debates about the goals of these truth commissions, some claim that they are cathartic for victims, help-ing 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 forgive-ness. Some argue that this model tends to let perpetrator repen-tance 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 hold-ing perpetrators of serious crimes against humanity accountable. This model focuses on punish-ment and justice rather than peace. The international commu-nity has developed and funded two tribunals focused on pun-ishing perpetrators of ethnic cleansing and genocide in the former Yugoslavia and Rwanda. The International Criminal Court, recently established as a perma-nent 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 mas-sive amounts of data collection. They are also bitterly expensive. Not surprisingly, they can only handle a small number of perpetra-tors. These courts focus on those who exercised authority and made decisions rather than those who carried them out.

named after an earlier but now defunct village institution. They are charged with using informal, vil-lage-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 commis-sions 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 punish-ment, but these goals are often incompatible.

Consider Peace and Justice TogetherIn sum, the tension between peace and justice, here described as that between resolving confl icts and protecting human rights, runs through both domestic and inter-national efforts to deal with con-fl ict. The important point is that resolving confl icts without pro-viding justice is doomed to fail. It can send a message that one can mobilize a militia and attack one’s neighbors with impunity, then ne-gotiate a settlement. On the other hand, prosecuting human rights violators or threatening to do so can discourage military leaders from ending confl ict.

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 con-sider peace and justice together, to think about peacemaking and punishing human rights violators at the same time.

Sally Engle Merry is professor of anthro-pology 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 presi-dent of the Law and Society Association and the Association for Political and Legal Anthropology and a member of the AAA Executive Board.

C O M M E N T A R Y

When a genocide involves wide-spread participation in the killing, as it did in Rwanda in 1994, it is impossible to try all the perpetra-tors. In Rwanda, one solution is to move less severe cases to commu-nity-based conflict resolution bod-ies, gacacas. Although these are pre-sented as conciliatory mechanisms rooted in tradition, they are actually a new creation of the government,

Sally Engle Merry