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Cale Salih, Project Lead
WHAT IS THIS PROJECT?
The Limits of Punishment is a research project led by the United Nations University Centre for Policy Research, in partnership with the Institute for Integrated Transitions, and supported by the UK Department for International Development.* It seeks to understand if, when and how transitional justice, in combination with other conflict resolution tools, can contribute to transitions away from conflict in settings affected by major jihadist groups. Specifically, it aims to answer two questions:
To answer the first question, the project undertook three fieldwork-based case studies that assessed nationally-led approaches to handling individuals accused of having been associated with: al Shabaab in Somalia; Boko Haram in Nigeria; and the Islamic State (IS) in Iraq. The case studies look at a broad range of formal and informal mechanisms of punishment and leniency. These include, inter alia: amnesties; prosecutions; traditional justice; and disarmament, demobilisation, reintegration (DDR), rehabilitation, and similar programs that, in practice, offer some individuals alternatives to criminal justice. The case studies demonstrate the risks of excessively heavy-handed and at times indiscriminate approaches that penalise broad sectors of local populations accused of association with these groups, and assess the quality and limitations of existing leniency programs for such individuals.
To answer the second question, the Institute for Integrated Transitions’ Law and Peace Practice Group – a group of leading transitional justice experts – analysed the empirical evidence of the case studies in light of broader lessons learned from decades of international practice in the field of transitional justice. On this basis, the Group developed a framework to assist national policymakers and practitioners – as well as their international partners – in applying transitional justice tools as part of a broader strategy to resolve conflicts involving groups deemed violent extremist. The framework offers a range of approaches toward effectively balancing leniency and accountability, that can be tailored to conflict settings marked by violent extremism.
WHO IS THIS PROJECT FOR?
The primary audiences for this volume are national policymakers and development and conflict resolution practitioners in fragile and conflict-affected states affected by jihadist violence. National authorities in these states are investing significant efforts into defeating these groups militarily, and prosecuting and/or detaining their members and associates. In some limited cases, they have also attempted political negotiations or other non-punitive strategies. This project’s findings aim to help national actors develop tailored and balanced strategies toward handling individuals accused of association with jihadist groups in ways that are more likely to contribute to conflict resolution.
The project’s findings are also relevant to international financial and technical assistance providers. These include donor countries, many of which are spending significant resources on supporting counter-terrorism (CT), Countering Violent Extremism (CVE), and stabilisation efforts in Africa, the Middle East and elsewhere. Other intended beneficiaries of this project include multilateral organisations, namely the United Nations, which is increasingly investing in Preventing Violent Extremism and related work.
Finally, the project is relevant to the growing community of experts and academics working on CT and CVE. It contributes in particular to the evidence base on how to: protect human rights in the context of counter-terrorism operations; induce and manage individual- and faction-level defections from extremist groups; and promote reconciliation in areas formerly controlled by these groups. It also offers a foundation for further research and analysis exploring other questions related to dealing with jihadist groups, including that of whether and how states can negotiate with them. Further, although the focus of this project is on jihadist groups, the findings may be relevant to other types of violent groups with ideological agendas and that control territory and populations.
WHY DOES THIS PROJECT MATTER?
In recent years, some of the highest profile jihadist groups have been militarily pushed back from large territories they once controlled. This has created new stabilisation and peacebuilding opportunities and challenges, particularly in the communities most directly impacted by the groups. But it has also raised a new set of critical questions in need of urgent answers, including whether current CT and CVE policies in such settings effectively leverage these opportunities and meet the challenges in a sustainable manner; whether there are unintended consequences for individuals accused of having been associated with jihadist groups; and whether there are lessons to be learned from other settings that could usefully be applied.
This project zooms in on a critical, and significantly understudied, piece of the puzzle: justice responses to individuals accused of having been associated with jihadist groups. As discussed above, the project defines “justice” approaches broadly, looking at formal and informal mechanisms of leniency and punishment.
The project’s findings are relevant to the target audiences for two key reasons:
First, jihadist groups form a key part of the changing landscape of conflict, posing exceptionally difficult challenges for states. These groups have proliferated and grown in prominence in recent years, with the number of conflicts involving IS and its affiliates having quadrupled from 2014 to 2015. Since 2010, the number of Salafi-jihadist fighters in the battlefield has risen sharply. And in 2015, a large share of deaths resulting from organised violence took place in incidents involving ISIS, al Qaida, and its affiliates. These trends suggest that jihadist groups will be a feature of many of today’s and tomorrow’s deadliest wars, and that policymakers will need to find ways to deal effectively with them.
Yet, military defeat of major jihadist groups such as Boko Haram in Nigeria, IS in Iraq, and al Shabaab in Somalia, appears elusive. Even where significant territory has been retaken, declarations of victory appear premature. In Nigeria, for instance, Boko Haram has continued to launch attacks well after the government declared “a technical victory” over the group in 2016. Iraq in 2017 won back all major territory from IS and formally declared victory against the group, but it now faces significant stabilisation and political reform challenges, with many experts warning of the risk of an IS 2.0 emerging among marginalised Sunni populations. And al Shabaab, despite years of military pressure from Somali national forces and AMISOM, remains in control of significant parts of Somalia and capable of undertaking major terrorist attacks.
Second, the elusiveness of military defeat suggests that, while coercive measures obviously have a role to play, states must consider complementing military campaigns with other approaches rooted in conflict resolution.
Among the conflict resolution tools available to states, transitional justice tends to be especially overlooked or assumed not to apply to “terrorists,” who are often seen as deserving no less than maximum punishment. However, in conflict settings, individuals become associated with jihadist groups in diverse violent and non-violent roles, and under a range of coercive, survival-driven and voluntary conditions. This diversity requires equally multi-layered and nuanced approaches to justice and accountability.
Approaches that cast the punishment net too widely carry a high risk of penalising civilians who had little choice but to develop some association with the jihadists that ruled their villages and towns, and those who have no direct association at all. These individuals may include: civilians who became associated with the group in non-violent support roles, such as drivers and cooks; victims of the group, including women who have been forcibly married to fighters; those who merely lived under the group’s control and were unable to escape; and unaffiliated relatives of accused members of the group. Penalising such individuals on a mass scale, as our case studies demonstrate, risks further alienating local communities from the state and possibly contributing to the birthing of new cycles of revenge and violence, thereby undermining stabilisation and conflict resolution goals.
Equally important, and as shown in our Somalia case study, ad hoc political deals that let senior leaders of a group off with no visible accountability measures risk exacerbating impunity. Any leniency measures must be carefully balanced with victims’ rights and societal demands for justice, lest they be seen domestically and/or internationally as illegitimate and allowing serious terrorists to get away with murder.
An approach that balances leniency and accountability can help contribute to conflict resolution by facilitating individual exits from a group, promoting rehabilitation of some former associates, especially those who had minor ties to a group, and enabling longer-term reconciliation and recovery within society. This balance is challenging for states to strike in any context, and even more so in complex conflict settings involving jihadist groups. This project offers ideas to help achieve that balance, using transitional justice strategies that can better contribute to conflict resolution, stabilisation and reconciliation.
WHAT’S IN THE VOLUME
Chapter 1 presents Ronald Slye’s and Mark Freeman’s Framework Paper, “Toward a Transitional Justice Framework for Preventing and Overcoming Violent Extremism.” The paper builds on the empirical evidence presented in the case studies, as well as broader lessons from decades of international experience in the field of transitional justice. It offers national policymakers and practitioners – as well as their international partners – a framework for developing alternative responses to individuals accused of association with violent extremist groups. The paper provides: an overview of amnesty and accountability themes that arise across the three case studies; an analysis of the range of alternatives that transitional justice offers to deal with problems of extreme violence and atrocity; a strategy formation framework outlining the key considerations for policymakers to effectively prevent and counter violent extremism; and a list of additional areas that require further research and analysis.
Chapter 2 is Mara Revkin’s Iraq case study, “After the Islamic State: Balancing Accountability and Reconciliation in Iraq.” This case study addresses how Iraqi and Kurdistan Regional Government (KRG) authorities can, in the aftermath of the retaking of Mosul and other formerly IS-controlled areas, accurately and fairly distinguish between IS affiliates who pose a genuine threat to national security and civilians who merely lived and worked in areas controlled by the group. It also assesses how trust can be rebuilt in multi-religious, multi-ethnic communities, where Sunnis are feared or resented for their actual or perceived collaboration with IS, and what strategies can help bring an end to cycles of violence and revenge. It further considers whether transitional justice frameworks could offer an alternative to the dominant, highly punitive approach, allowing for amnesty for individuals who are not accused of serious crimes. The report ends with policy recommendations. This case study is based on the author’s fieldwork and interviews conducted in diverse locations in Iraq in April and December 2017, observations of trials of IS affiliates, and a large-scale survey of more than 1,400 residents of Mosul.
Chapter 3 is Vanda Felbab-Brown’s Nigeria case study, “In Nigeria, We Don’t Want Them Back: Amnesty, Defectors’ Programs, Leniency Measures, Informal Reconciliation, and Punitive Responses to Boko Haram.” This case study provides an overview of the conflict with Boko Haram, the group’s rule and treatment of populations under its control, and societal perceptions toward individuals accused of association with the group. It analyses Nigeria’s overall response to Boko Haram, including the military campaign, as well as unsuccessful attempts at negotiation and debates over amnesty for the group. It details two leniency measures that have been developed for some individuals accused of ties with Boko Haram: a program for “repentant” low-risk male combatants; and a rehabilitation centre for low-risk children and women, such as those who were married to Boko Haram fighters. The report also outlines reintegration and reconciliation efforts by non-governmental organisations, and assesses prospects for accountability of Nigerian state security forces and aligned militias. It ends with policy recommendations for Nigerian and international policymakers. This report is based on the author’s fieldwork and interviews in Abuja, Maiduguri and Ibadan in January 2018, as well as a wider review of existing literature.
Chapter 4 is Vanda Felbab-Brown’s Somalia case study, “The Hard, Hot, Dusty Road to Accountability, Reconciliation and Peace in Somalia: Amnesties, Defectors’ Programs, Traditional Justice, Informal Reconciliation Mechanisms, and Punitive Responses to al Shabaab.” This case study offers an overview of the conflict with al Shabaab, the group’s rule and treatment of populations under its control, and societal perceptions toward those associated with the group. It analyses state-led approaches to al Shabaab, including: presidential declarations of amnesty and military pressure to induce defections; screening practices of low-value defectors; and separate treatments for high-value, low-risk, and high-risk defectors. Specifically, the case study analyses the quality and consequences of: a disarmament, demobilisation and reintegration (DDR)-like program for low-risk al Shabaab defectors; military justice for high-risk defectors; and ad hoc political deals struck with high-value defectors. The case study also considers the role of traditional justice mechanisms in dealing with individuals accused of al Shabaab association, and of Somali non-governmental organisations in informal reconciliation processes. Felbab-Brown ends with detailed policy recommendations for Somali and international policymakers. This case study is based on the author’s fieldwork and interviews in Mogadishu, Somalia, and Nairobi, Kenya, in December 2017, and a wider review of existing literature.
 We use the term “jihadist” with some hesitation given its various connotations within Islam, but in general we use it to refer to non-state armed groups that: self-identify as jihadist; share some baseline ideological convictions (including the use of violence against rulers who govern in ways these groups deem to be at odds with Islam); and are run by leaders who have some links to a transnational community of other individuals and organisations who self-identify as jihadist (even if overall the groups have primarily locally-rooted identities and agendas). See ICG’s justification of applying this terminology to some of its work: “Exploiting Disorder: Al Qaeda and the Islamic State”, International Crisis Group (14 March 2016).
 Erik Melander, Therése Pettersson, and Lotta Themnér, “Organised violence, 1989-2015,” Journal of Peace Research 53, issue 5 (5 September 2016): 727-742. Cited in “Civil War Trends and the Changing Nature of Armed Conflict”, United Nations University’s Centre for Policy Research, March 2017.
 Seth Jones, “A Persistent Threat: The Evolution of al Qa’ida and Other Salafi Jihadists”, RAND 2014.
 Melander, Pettersson and Themner, p. 732.
 Hilary Matfess, Peter M. Lewis, and Nathaniel D.F. Allen, “Unbroken Boko Haram: Buhari Prematurely Declares Victory”, Foreign Affairs, 21 March 2016. As recently as February 2018, Boko Haram abducted 110 schoolgirls. See “Nigeria forces repeatedly warned before Boko Haram abducted 110 schoolgirls: Amnesty”, AFP-JIJI, 20 March 2018.
 “Iraq ‘completely liberated’ from ISIS, says prime minister”, AP, 10 December 2017.
 Mara Revkin, “After the Islamic State: Balancing Accountability and Reconciliation in Iraq”, UNU-CPR, 31 May 2018.
 Vanda Felbab-Brown, “The Hard, Hot, Dusty Road to Accountability, Reconciliation and Peace in Somalia”, UNU-CPR, May 2018.
*This material has been supported by UK aid from the UK government; the views expressed are those of the authors.