TOWARDS A GREATER UNDERSTANDING OF GUARANTEES OF NON-REPETITION (GNR) OR NON-RECURRENCE OF HUMAN RIGHTS VIOLATIONS: HOW GNR INTERSECTS TRANSITIONAL JUSTICE WITH PROCESSES OF STATE (RE)BUILDING, THE RULE OF LAW, DEMOCRATIC GOVERNANCE, RECONCILIATION, NATION BUILDING, SOCIAL COHESION AND HUMAN RIGHTS PROTECTION.

• Author: Sarkin, Jeremy Julian

1. INTRODUCTION 193 II. WHAT ARE GUARANTEES OF NON-REPETITION (GNRS) AND WHAT ISSUES AFFECT THEM? 196 III. GNR AS A TRANSITIONAL JUSTICE CONCEPT 707 IV. THE BENEFITS OF AN INCREASED UNDERSTANDING AND USE OF GUARANTEES OF NON-REPETITION 203 V. TOWARDS A BETTER UNDERSTANDING OF THE RELATIONSHIP BETWEEN TRANSITIONAL JUSTICE, STATE (RE)BUILDING, THE RULE OF LAW, DEMOCRATIC- GOVERNANCE, RECONCILIATION, NATION BUILDING, SOCIAL COHESION, HUMAN RIGHTS PROTECTION, AND GUARANTEES OF NON-REPETITION 207 VI. STATE BUILDING OR REBUILDING AND GUARANTEES OF NON-REPETITION 210 VII. DEMOCRACIES AND GUARANTEES OF NON-REPETITION 211 VIII. DEALING WITH PAST HUMAN RIGHTS VIOLATIONS AND THE EFFECT ON GUARANTEES OF NON-REPETITION 213 IX. AMNESTIES AND GUARANTEES OF NON-REPETITION 214 X. INSTITUTIONAL REFORMS AND GUARANTEES OF NON-REPETITION 215 XI. RULE OF LAW AND GUARANTEES OF NON-REPETITION 218 XII. DEMOCRATIC AND HUMAN RIGHTS ADVANCEMENT FOR GUARANTEES OF NON- REPETITION PURPOSES 219 XIII. RECONCILIATION AND GUARANTEES OF NON-REPETITION 221 XIV. NATION BUILDING, SOCIAL COHESION AND GUARANTEES OF NON-REPETITION 223 XV. PEACE BUILDING AND GUARANTEES OF NON-REPETITION 226 XVI. CONCLUSION 228 I. INTRODUCTION

   After a period of peace, conflict often re-occurs in countries that previously experienced conflict or political violence. (1) This may be the case even where a state has taken remedial action to deal with the past, including by settling disputes between conflicting parties; (2) embarking on a range of reforms; and conducting a transitional justice (TJ) process.' Long-term trends show that reversion back to conflict in countries which experienced civil war, for example, is extremely common and occurred in about one-third of all cases between 1945 and 1996. (4) Other research conducted across approximately the same period, and with respect to the same countries, suggests that 30% of those states reverted back into conflict in just two years. (5) Another study of more than 100 countries that experienced civil war between 1945 and 2013 saw more than half of the countries relapse into violence. (6) Another study found a 40% return to violence rate for such states. (7) Still, other countries have experienced many intermittent cycles of war and peace. (8)

   These assessments of the probability of states' reversion back into conflict are however disputed. (9) For instance, the UN Secretary-General in 2005, in the well-known In Larger Freedom report, noted: "Roughly half of all countries that emerge from war lapse back into violence within five years." (10) One research study has shown that more than half of all countries where civil wars occurred between 1944 and 1997 saw at least one relapse." Walter however argues that about a third of all states that had civil wars have seen a rc-emcrgcnce of that conflict. (12) Collier, Et al. have argued the rate of recurrence of conflict in places beset by violence is closer to 44%. (13)

   Meanwhile, some have argued that there has been a higher rate of relapse in more recent ten-year periods. (14) In fact, in 2011 it was reported that every conflict that occurred from 2003 to 2011 was a resumption of previous conflict. (15) Indeed, the rate of recurrence of violence may be even higher than what it was in the more recent past. In fact, a study in 2009 found that, of the roughly 100 states that had had some type of civil war between 1945 and 2009, just less than half evaded a later resumption of the conflict. (16) On the whole, while there is disagreement as to what the correct rate of reversion to violence is, it is nevertheless true that there is a high rate of conflict degeneration or the extent to which post conflict states revert back into conflict.

   Scholars have also found that conflicts are becoming more prevalent and more lethal (17) and that those states that experience more deadly conflicts arc more likely to experience a reversion back to civil war. (18 ) The World Bank, for example, noted that 90% of civil wars that occurred in the first decade of the twenty-first century took place in states that had experienced internal conflict in the thirty years prior.' (19) This 90% relapse rate contrasts starkly with the relapse percentages of earlier times. Some countries in particular have experienced the recurrence of conflict many times. (20) Examples include Ethiopia (12), Myanmar/Burma (13), and India (20). (21) Some states have seen resumed conflict within a year or two of cessation of conflict while others have seen peace endure for many years before there is a resumption of violence.

   Post-conflict states that experience a recurrence of violence also see an increase in human rights violations. (22) This is partly because of the nature of these societies. Affected states are often heterogeneous; ethnic, religious, linguistic, racial and other differences have propagated deep cleavages in these societies, and often over long periods of time. These societies therefore remain weak and fragile. Underlying differences often come to the fore due to events like elections and political rivalries. This was seen in South Sudan where, shortly after the country declared independence in 2011, political competition between the President and Vice President degenerated into ethnic clashes. (23) This happened because these two officials leveraged the fact that they came from different ethnic groups for their own political advantage. (24) The different political factions exploited tribal differences for political reasons. This is not unique and has occurred in other places. For example, Kenya saw significant post-election violence in 2007 and 2008 as clashes between politicians vying for the presidency exacerbated existing political cleavages, resulting in violence. (25) Rival groups used tribal identity in a bid to promote their political claims. These types of events have occurred in many other places. (26)

   Indeed, this phenomenon is not restricted to Africa. Examples abound in Asia, such as Pakistan and Malaysia. Divisions between groups arc often increasingly manipulated during elections, as was seen in Afghanistan (27) and Thailand. (28) However, violence has occurred at times because of perceived benefits that one group has attained supposedly at the expense of other groups. (29) Sometimes there is violence because of concerns about the intentions of another group. (30) These conflicts are the result of long-standing discontent, and deeply rooted divisions, some of which were created by colonial attempts to divide and rule," such as in Rwanda (31) and Uganda," amongst others. These long-standing and deep divisions are difficult to overcome, especially permanently because of the socio-economic conditions in these countries, and how entrenched the views on ethnicity are. This is true of many other places where longstanding divisions exist. However, efforts to ensure the non-repetition of conflict need to be made otherwise ongoing cycles of violence will be even more likely.

   This article argues that what constitutes GNR are not always dealt with as such, and that such matters are sometimes applied, in practice, as means for rebuilding the nation-state, strengthening the rule of law and democratic governance, or ensuring reconciliation, social cohesion and human rights protections. This article therefore focuses on what GNR is specifically, and how it could play a more important role if its connections to matters, such as nation building, reconciliation and specific aspects of democratisation and democratic governance, human rights protection and state (re)building, were more specifically understood and delineated. The broad argument is that a more sustained focus on GNR and an effort to make it more relevant in theory and in practice, would have positive effects for a range of different societies, especially those that are in post-conflict states. The article indicates some of the practical steps that can be carried out, as an overall unified and sustained strategy, that brings together a range of interconnected issues, to achieve GNR.

2. WHAT ARK GUARANTEES OF NON-REPETITION (GNRS) AND WHAT ISSUES

   AFFECT THEM?

   Understanding what guarantees of non-repetition (GNRs) are is crucial to understanding what role they can play in post-conflict societies. However, GNRs do not consist of a finite set of matters and available GNRs will differ by country context. (34) Some GNRs may be short-term mechanisms or processes while others may be medium to long-term ones. A state's other objectives that affect GNRs (such as advancing democratic processes as well as reconciliation and nation-building) can also change over time depending on the political environment and other occurrences in the country. However, GNRs where implemented may, at times, not even be recognised specifically as such. Rather, these processes and mechanisms may be seen instead as affecting nation building, reconciliation, state building, or a range of other matters, which this article also takes up. In fact, too often there is insufficient attention paid to what matters directly affect or undermine GNR.

   Guarantees of Non-Repetition of Human Rights Violations

   Suffice to say, GNRs are a variety of laws, processes, statements and deeds that are taken up (mostly) by a state to resolve past democracy and human rights problems that have caused difficulty, so as to preclude future conflict and violence. They are a multitude of assorted matters that are taken up in a variety of ways to resolve previous problems and put in place mechanisms to ensure that future issues of contention are less likely to arise. GNRs can also be steps taken, and mechanisms created or reformed, to ensure that future issues of contention can be resolved more easily and in fairer and more inclusive ways. GNRs are put into place to provide comfort to those who have concerns about the way that the state was run and what was done before to ensure that what occurred in the past...