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Do Negotiations Count as Justice?

Last week, Mahmood Mamdani wrote an op ed in the New York Times with Thabo Mbeki arguing that political negotiations, rather than court-based justice, are most appropriate for ending civil wars. This was largely as a response to the beginning of talks in Addis Ababa to make permanent the ceasefire in South Sudan. Mamdani has discussed his concept of “survivor’s justice” in other forums, pointing to the CODESA negotiations in South Africa as an example of political negotiations creating a post-conflict peace that allows both victims and perpetrators to live together.

One can understand the urge to condemn internationally led, court-based proceedings, particularly those against sitting leaders. The ICC indictment of Bashir and other Sudanese government officials further polarized the international climate, making it more difficult for organizations and other governments to push reform. Of great concern as well is the external, western driven nature of these sorts of courts, an issue Mamdani mentioned in Saviors and Survivors when he said that “Those who face human rights as the language of an externally driven ‘humanitarian intervention’ are required to contend with a legal regime in which the very notion of human rights law is defined outside of a political process—democratic or otherwise—that includes them as meaningful participants. Particularly for those in Africa, more than anywhere else, the ICC heralds a regime of legal and political dependency” (p 288) Whether international institutions can push new norms for all and whether the ICC can deter future mass atrocities are issues that can and should be discussed further in other settings, but it seems clear that there were serious drawbacks to this approach whatever the benefits.

What stands out for me as most problematic in this piece, however, is the alternative that Mamdani proposes. In multiple talks (along the same lines as this op ed), Mamdani argues that political negotiations are a form of “survivors justice” in that they allow the leaders to address the root causes of the violence, often systemic in nature, and that ultimately allows victims and perpetrators to live together in the future. This cannot be done by courts, Mamdani explains, since courts ultimately seek to assign individual responsibility to problems perpetuated by larger systems. While certainly systemic problems usually underpin mass violence, this argument places quite a lot of trust in political leaders—leaders who until recently viewed it as worthwhile to mobilize people to accomplish their political goals using violence.

What happens when those leaders don’t represent all of the interests of the society whose problems they are ostensibly representing? The negotiations in Addis Ababa have been criticized by many because they exclude civil society. Led by the two major instigators of the conflict, Salva Kiir and Riek Machar, these talks ultimately legitimize their power struggle, whatever else they seek to accomplish. Or are we to believe that Salva Kiir and Riek Machar are invested in more than dividing power in a way favorable for themselves ?

Another issue that worries me about Mamdani’s statements is the way it dismisses discussions of human rights as simply a product of western hegemony. There are plenty of activists in non-western contexts who strive to hold their governments accountable and advance ideals that they view as human rights. Many do so at great risk for themselves and without much (if any) support from international bodies, and they do so drawing upon values that are definitely part of their societies. By arguing that human rights are part of neo-colonial imposition of western power, one also dismisses such activists as simply pawns of this order, making it even harder for citizens in authoritarian regimes to confront the state and demand change.

It seems telling that Mamdani co-wrote this editorial with Mbeki and that the African Union ultimately echoes these points. This is a conservative argument that justifies the status quo and apologizes for the actions of those in power, all the while casting itself as anti-imperial. One can both condemn the decisions of political leaders, pushing for accountability while also demanding that post-conflict justice keeps its roots in the national values of the country—these issues are not mutually exclusive.

Political solutions are indeed important, but do they really constitute a form of “survivor’s justice?” Without accountability to the people whose interests leaders claim to represent, negotiations run the risk of simply ignoring political and societal problems, all the while legitimizing (and cementing) the power of those who have called for violence in the first place.

There has been some discussion on and off regarding the possibility of some sort of truth and reconciliation commission for South Sudan, and with the most recent violence, this discussion has started again. The point being made in both of these pieces is that while ending the violence is important, society cannot move on without some sort of examination of what happened. Responsibility should be assigned so that a common narrative can be created, one that acknowledges that happened in such a way as to allow people to move on.

It may well be that any form of justice will be hard to come by in South Sudan—that political expediency may well shield some responsibility and that negotiations may fail to represent everyone. Let’s  not pretend that it’s somehow just.