Two Logics of Non-Recurrence after Civil Conflict

Abstract

This article examines the interactions of two under-theorised means to forestall recurrence of violence and human rights abuses after conflict with two very different, but by no means mutually incompatible, logics. The first of these is guarantees of non-recurrence (gnr s), a branch of transitional justice characterised by a deeply formalist, institutionalised logic. The second is political settlements characterised by a highly informal logic. This article explores the conceptual terrain between these two logics of non-recurrence. It demonstrates a mismatch between the faith of transitional justice policy-makers in the centrality of gnr s to non-recurrence, on the one hand, and the actual process of guarding against conflict resumption as it is shaped extra-institutionally by the informal practices that underpin settlements, on the other. Post-conflict states generally place greater faith in the informal logic of settlements than the institutionalist logic of gnr s. Arguing that the prospects for non-recurrence are not fully captured if we focus only on the legal and institutional attributes of the state, it shows that settlements evolve or disintegrate incrementally over time. This critically conditions when gnr s are essential and efficacious. Put another way, the fate of gnr s in particular institutions depends on how settlements in general maintain the peace. Transitional justice theorists should be open to the possibility that guarantees of non-repetition are the fruit, not the precondition, of social order.