Language: English

Interviewed by Thierry Cruvellier, Justiceinfo.net

From June 2014 to December 2015, Mark Freeman was one of two independent experts hired by the Colombian government delegation to advise them on transitional justice issues during the peace talks with the Revolutionary Armed Forces of Colombia (FARC). He tells us some of the inside story of the peace negotiation and analyses the momentous process of justice that is now underway in Colombia. Freeman further shares sharp and thought-provoking views on the damaging misunderstandings of amnesties, and how transitional justice tools may be helpful to engage some of the most reviled and violent groups today, such as Jihadists and organized crime.

Part 1 – Colombia and the FARC

JUSTICEINFO.NET: Your role in the Colombian peace talks in Cuba came to an end when, in December 2015, the full chapter on victims (i.e. transitional justice) was published. This subject turned out to be the hardest part of the peace negotiation. What was it that each party feared most?

MARK FREEMAN: Both parties knew that it was going to be the hardest issue. They actually referred to it as the nucleo duro, “the hard nut to crack”. The chapter on victims is deliberately vague: it doesn’t refer to justice, it doesn’t refer to transitional justice. It just says “victims”, and it has two bullets underneath it: human rights and truth.

You would imagine from the outside that the biggest difficulty would be the government trying to convince the FARC why they have to accept criminal punishment and sanctions. And, of course, that was one of the issues. But the biggest surprise to anyone who might have arrived from Mars and landed into the negotiation was that, to a large degree, the hardest negotiation was inside of each delegation rather than across the delegations. Let me give you an example. If we break down the mechanisms, the FARC was quite in favor of a truth commission. The government had to take account of the interests of the armed forces – a 500,000 strong, very powerful institution in the country – and what created more anxiety for the state agents was the truth commission. Think about what a truth commission does: it makes findings on institutional responsibility. And so the military assessed that they had a lot to lose and not a lot to gain from a truth commission. That meant a very intensive talk within Bogota, not just inside the delegation.

On justice and reparations, I think the FARC had a lot more to fear. Their political project was to transform into a non-armed political party and the prospect of criminal punishment, quite logically, would not be good for their political careers, and not good for [their] image and brand. So they had to fight very hard. On reparations, the government delegation emphasized, quite rightly, the great achievements and economic sacrifices of its citizens. One per cent of the gross national product goes to victims in this gigantic reparations program that has been in place since 2011, in which the state provides reparations to victims of any criminal act. So the question was: what would the FARC contribute to the reparations, morally but also in finance.

Colombia is arguably the most extraordinary transitional justice process in the world at the moment. What is it that makes it so unique?

One part of it is that it is a transitional justice deal that is the result of a negotiation. That’s important in its own right. We can’t understand the way that it looks without understanding, and appreciating, that it comes out of a negotiation. It is important not only to understand the limits of what we can expect from it but, also because you have to understand that the transitional justice deal is directly, structurally connected to other elements. For example, criminal sanctions can’t be understood in isolation from the larger transitional justice package but also can’t be understood in isolation from the disarmament process: they have to disarm as a condition for getting the potential benefits, the reduced sentences, the legal leniency that this deal offers. It also has to do with political participation: if they confess or if they are found to be guilty of certain actions, that affects their ability to participate politically. This is not transitional justice as an isolated strategy.

A third element is one of the things that characterizes Colombia: for better and for worse, they can’t do anything without being extremely ambitious. I don’t mean to say they’re not realistic, but they push themselves to the limits. They have this expression that they use: “We are more papist than the Pope.” I say this because it’s one of the strengths but also one of the great challenges of this process.

This is not the first chapter of the story of transitional justice in Colombia. They had this very robust process, the Peace and Justice Law, that involved something like a truth commission, plea-bargaining schemes, victim reparations. So we’ve got this huge system: a fifty-year conflict that a truth commission is supposed to investigate; this gigantic structure with five or six different bodies, just within the justice component, which also involves an amnesty granting body, an initial chamber that receives confessions, etc.; a new scheme of reparations that builds on the existing one, which has individual and collective components, symbolic acknowledgment and material benefits ; and a chapter on guarantees of non-repetition. And this is all constructed on top of this whole other system still operating.

Isn’t it a recipe for disaster?

It’s a recipe for a lot of disappointment. It’s going to disappoint but it’s always going to deliver certain things as well. The truth commission will carry out its work although it’s probably going to be in a constant battle with the new government. This extraordinary justice mechanism called the “JEP” in Spanish [Special Jurisdiction for Peace] has its own job to do and has to interact with the ordinary justice system, and with the truth commission; and they’re going to deliver something, and there will be trials. But it’s going to do far less that what it was intended to do, because of this almost cultural proclivity towards ambition.

What’s the most promising or attractive aspect of the whole process?

I am hesitating because there are some critical decisions, strategic or tactical, that each of these bodies, in particular the JEP and the truth commission, have to take now that will define if they can be something promising or something certain to disappoint or fall apart. The truth commission [is facing] a new government that is, generally speaking, hostile to what has been negotiated. But truth commissions have the opportunity to surprise people, to disrupt those expectations. You have an extraordinary chair who could potentially orient this commission more towards dialogue and reconciliation rather than a kind of blaming exercise. The truth commission is going to be irrelevant or positively disruptive.

The same thing is true of the tribunal. It is in the first stage of this process, which is almost the equivalent of a truth commission. The tribunal is receiving confessions and it is going to produce a report saying: here are the cases we think should be investigated, the ones which should be amnestied, and the ones we just leave alone. So are they going to spend the next ten years going over tens of thousands of cases in the pursuit of the perfect transitional justice or are they going to be very clever and balanced in terms of what they do? It could be promising or it could be a disaster. You can’t say just yet.

Whether they manage to attract some people to come forward and confess is the critical dimension. Many things made South Africa powerful, but one of the most important ones, I believe, was the emotional power, the raw power, of seeing people come forward publicly, confess in detail and confront their victims. The confrontation of victims won’t happen in Colombia and I don’t think it needs to, but if people come forward and participate and confess in honorable ways, it could be important. My fear would be that Colombia falls back into a kind of legalistic, maximalist tradition that also afflicted the Justice and Peace process. What’s unviable is the sheer complexity of it. If it were to be implemented to the letter it would be a disaster. It’s mission impossible. It’s too maximalist.

Moving from being a transitional justice expert working from the outside to the real-life, practical need of achieving peace, what major lessons did you draw from the negotiation process?

I would go back to how absolutely different transitional justice is when it needs to be negotiated versus when it can be declared. It’s fundamental. You cannot understand negotiating transitional justice unless your analytic starting point is the fact of negotiation itself and all the constraints and implications that it has – mutual concessions, the fact that you are making deals with the leaders of an enemy side, and that it all has to be reduced to a written agreement – and that whatever you negotiate in this arena, it is subservient: what you’re negotiating is peace. This is not a transitional justice deal; it’s a peace deal that has transitional justice components. If you don’t understand that, you don’t understand anything.

Many people have emphasized the difference between transitional justice after dictatorship and transitional justice after a civil war. And I agree this is a relevant distinction. But I don’t think those are the things that necessarily lead you to have to come up with more nuanced concessions or balancing acts. It is when you have to negotiate the end of a civil war or dictatorship. Why did Rwanda’s forays into transitional justice look the way they did? Because they didn’t have to negotiate with anybody. It doesn’t mean they didn’t have challenges and constraints but we’re not a world in which all wars and all dictatorships end through elections or public revolts or resignations or the death of leaders. That’s not how all civil wars and dictatorships end. Chile has more to teach Colombia in terms of transitional justice than any place where there was no need to negotiate political settlement or a peace deal. That is the most important story. It has transformed my understanding of what makes amnesty and transitional justice look so different in some places than others: it’s how the transition came about.

It’s not intellectually honest to say that you believe that a particular conflict should end through a negotiated deal and then have all these “red lines” on justice. It’s not serious. You can have values, you can have principles, you can advocate. But if you are saying you believe in a negotiated solution as a way to end this conflict or this dictatorship, then you have to adjust. You can’t on the one hand say this seriously, and on the other hand declare in the most unrealistic, and I think undignified ways, that justice must look the same for a negotiated process as it would if there was no negotiation.

And that’s effectively what lots of human rights actors say. Some are simply ignorant and don’t understand that. But most are intellectually dishonest. It’s like the whole debate on peace and justice. It’s not that the goals are irreconcilable. It is that if peace must be negotiated, that has direct implications in terms of the kind of justice that is possible. Any other argument is not worth listening to. You have to understand what negotiation means. Justice is not what you’re negotiating; you’re negotiating a political or peace settlement and [justice] is one component, a subsidiary component, of a larger process.

Part 2 – Rehabilitating Amnesties

You may be the most prominent expert on amnesties, which is the least understood and most despised transitional justice tool.

It’s radioactive.

Can you tell us why is it so and why it shouldn’t be?

An amnesty is an exception to the ordinary application of law. The discomfort generally has to do with this: we are knowingly making an exception to the rule. The rule is that you obey the law and if you fail to obey there shall be consequences. And an amnesty is like the big eraser. But amnesties when it comes to atrocities, that’s a question people struggle with because we have to ask ourselves whether some things are ultimately unforgivable. It’s profoundly discomforting, morally and intellectually, to actually think that, ultimately, every act can be forgiven in law, no matter what act. That’s a terrible thought. And the only thing that can allow us to live with that horrendous idea – that every kind of act, no matter how atrocious, gruesome and barbaric, the law can forgive it under some circumstances – is where there is some greater good that is being served. Most of the time that greater good has to do with prevention, with ending, halting a situation where these atrocities continue, or are likely to continue.

Think of it like this: the topic is atrocities, not amnesty. And some people – I include myself in this group – are comfortable with the idea that since the topic is atrocities we can accept the price that in order to end atrocities we have to forgive atrocities that have already occurred. There’s a whole other group of people that are prepared to see atrocities continue because their abhorrence of the idea of forgiving through law certain atrocities is so great. They will argue that if we forgive them there will be a never-ending cycle of atrocities. But we have to all be intellectually honest about this. For me, where [this group] ceases to be intellectually honest is when they fail to say: I am prepared to see atrocities continue. They won’t say it but that is the direct logical consequence of their position. And I don’t accept that.

The dominant position, however, at the United Nations and among major human rights organizations is a “no amnesty” principle, isn’t it?

No amnesty for the worst atrocities. They will tell you: we have no problem with amnesty but the cut-off point is war crimes, genocide, crimes against humanity – and some will also say, like the U.N., gross human rights violations. I can look at it, sit down, and say: Ok, I share your abhorrence with the idea that there could be amnesty for such things, so what should we do in the context of a negotiation that is going on in Central African Republic? Can we end the war? Can we stop atrocities with your policies, yes or no?

Frankly, why is the United Nations almost irrelevant for the last twenty years, ever since it has adopted this ideological position on amnesties, which doesn’t have an exception for negotiations? Under no circumstances, will the U.N. ever – ever – endorse any deal, any law, that would enshrine legal impunity or forgiveness for past atrocities. Never.

But in reality amnesties or conditional amnesties are constantly offered ; they are just called something different

I think it’s worse. We get the agreement on paper that says there will be no amnesty for these things, and then there actually ends up being no transitional justice of any kind. South Sudan reached the most beautiful agreement in 2015: there will not be amnesty for these crimes, there will be a tribunal, there will be a truth commission. This is what the South Sudanese felt that they had to agree in order to get international aid to continue. But what you get is those fictions.

What’s worse is that it has created misunderstandings in the diplomatic community about what international law actually allows and what it doesn’t allow. Diplomats believe now that they can’t sign deals unless they have these clauses. So, rather than law and transitional justice being enablers of deals, they are now just another obstacle that has to be overcome. Essentially it has eliminated nuance and eliminated any relevance of the United Nations as a broker of deals. Because only the weakest parties that agree to have no plans to implement will have the U.N. involved. The U.N. is not involved in any negotiation or mediation in a serious way anymore. They were not involved in Colombia, not until the very end and not on this issue. They’ve condemned themselves to a certain irrelevance.

But it’s worse than that. It has the effect of preventing the negotiation from getting started in the first place because parties, dictators, war criminals think that they will never get anything close to an amnesty so they just keep going. Whereas in reality if the position had some nuance to it – which the law allows –, and if it wasn’t so ideological, we would see more talks begin. Sadly, the legal fears that all these parties have are causing them more and more to hold on to power because they think that the international community will never give them some legal leniency – where, in fact, as you say, it will!

It’s made the generation of dialogues and negotiations much more difficult and in some cases, I think, almost impossible. So we sacrifice conflict resolution possibilities because of an unnecessarily rigid and absolutist position on amnesty. And effectively it means let the atrocities continue, let the dictators remain in power, let the warlords remain in power. It’s a very serious problem.

You can have preconditions to getting an amnesty: it can be individualized, it can be conditional on disclosing certain criminal acts, on disarmament, on non-recidivism, it can be so that if you commit certain violations or actions you lose the amnesty. You can do all kinds of clever things. But we don’t get to discuss those things, because for atrocities there is nothing to discuss.

Part 3 – Jihadists and Mafias: On the Frontiers of Transitional Justice

More recently, you’ve worked on what may be called the frontier of transitional justice: trying to understand how transitional justice tools could be used in negotiating with the most reviled and violent groups, such as religious extremists or even organized crime, gangs. What are your initial thoughts and findings on this?

We accept negotiating with groups like the IRA [Irish Revolutionary Army], the ANC [African National Congress], the FARC, because we can imagine, as the endgame of the negotiation, that those groups have the capacity to transform, on the institutional level, into something that the society can coexist with. As we push further out into the frontiers of different kinds of non-state groups such as Jihadist groups and organized crime, the endgame is much harder to see. It’s extremely remote to imagine Jihadist groups, given their nature, their ideological motivation at the leadership level, their self-identity, their operations and their transnational nature, that they could transform into something that the society could coexist with. There is political Islam; Boko Haram is negotiating with the Nigerian government; the Taliban is negotiating with the Afghan government. But it’s one step further. Before we can even talk about transitional justice, what we have to confront is that if we are unable to overcome Jihadism through coercive, military and judicial techniques, the question is: what other options do we have?

The second kind of group, organized crime, is even further out on the frontier, which is surprising because you might say people might detest ISIS more than they detest the Mafia. Maybe. But the idea of negotiating with the mafia is even more unacceptable to them than with ISIS. Again the question is: what do we do about organized crime? Can we solve it through purely coercive techniques? I think the mature policy response has to be that we have to take seriously the idea of the possibility of negotiation. What can and can’t wisely and realistically be negotiated with such groups? So it is a frontier, but it shouldn’t be such a stretch to say that we can and should negotiate with these groups. But we need a paradigm that fits these groups, and we also need to develop the policy analysis and justification to think of how to do so wisely.

And you’re saying that tools and experience of transitional justice can be helpful?

That’s exactly right. At its best transitional justice is a zone of creative policy-making in a context of dramatic constraints, as a way to respond to atrocities. We need to draw upon fields that have produced creative solutions, balanced solutions in the face of dramatic constraints in response to atrocities.

Here there doesn’t seem to be any “transition” involved any longer. Should it still be called “transitional justice”?

I think this is where we come full circle. It has to do with the misunderstanding of transitional justice, which is not a field that applies once a transition is underway. Look at Colombia: there was no post-conflict transitional justice until it could be negotiated. Transitional justice is also the things that you negotiate that would be part of a future transition. It is transitional justice when you’re negotiating, not only when you’re implementing, and not only when the transition is there but rather when you’re building the architecture of the transitional justice.

I began as a transitional justice specialist. That was my passion. I studied it, I practiced it. But negotiation has helped me understand transitional justice better. I realized that what fascinated me in transitional justice was never the justice part but the possibilities of transition which sometimes required negotiation to bring about. That has been my personal discovery.

Original interview published 30 October 2018 at Justiceinfo.net.  Available in French and English from the original source.

Public Commentary

Building the International Law of Peace

By Mark Freeman / IFIT Founder and Executive Director

Public Commentary

Colombia’s Transitional Justice: Mission Impossible?

By Mariana Casij Peña

Public Commentary

The Fragility Spectrum

By Seth D. Kaplan

Public Commentary

Weak States: When Should We Worry?

By Seth D. Kaplan

It’s time to set aside the one-size-fits-all approach to aiding countries in transition.

Countries in transition from war or a change in regime have posed repeated challenges to policymakers in recent years—and, repeatedly, the policymakers have come up short. Few have lived up to the expectations of their populations; more often than not, the transitions have stagnated or failed outright. Some countries—including Libya, Yemen, and Afghanistan—have descended into war and are now at the threshold of complete state collapse.

The policymakers’ failures of analysis in these cases have many causes, to be sure, but a major one is the lack of a widely accepted analytical framework that takes into account the great differences in starting conditions across countries. Instead, policymakers have tended to use a one-size-fits-all set of tools and timelines that ignore societal and institutional dynamics and assume that similar sets of policies will achieve similar results, no matter the country. Such methods are atavistic holdovers derived from long-discredited Western modernization theories.

Our policymakers’ rigidness of thinking is surprising given the progress scholars have made in recent years in understanding the unique challenges fragile states face and the broad measures necessary to overcome them. These repeatedly argue for the need to focus much more sharply on issues like inclusive politics, societal dynamics, and local solutions. Nevertheless, several factors have hampered the process of translating knowledge into policy: ideological blinkers, organizational constraints, and the fragmented nature of the international community. No mechanism exists for bringing together national and international actors to rethink basic assumptions or strategies for achieving peace and improved governance.

Meanwhile, path dependence, distortive and often inconsistent aid flows, fragmentation, weak capacity, and the state-centric nature of the Westphalian system all combine to reduce the ability of national leaders to change course, even when they wish to do so.

We need a new approach to managing transitions in fragile contexts. Such an approach would begin by plotting where countries lie on the fragility continuum. That plotting exercise suggests four broad categories for grouping countries based on starting conditions. Each category warrants a different strategy and policy mix, as does, at a lower level of abstraction, each country within the four groups.

We can see how this more incisive way of analyzing the problem set works by showing how the framework applies to conditions in the so-called Arab Spring countries. Starkly different starting conditions should require starkly different approaches. Organizations such as the U.S. State Department and the World Bank—both of which have sought to develop such an actionable framework—can benefit from examining this exercise.

Starting Conditions for Political Transition

While transitions offer an opportunity for a well-led society to chart a new path forward, that path is inevitably strewn with obstacles. Leaders and the groups they represent can cooperate in ways that build trust or compete in ways that undermine it; share power and resources in a way that nurtures social cohesion or fight to monopolize them in ways that undermine it; establish or strengthen institutions to operate impartially or try to corrupt them for parochial ends. Reform-oriented political, social, and business leaders face an uphill struggle, especially if a country has a history of exclusion, violence, and weak institutions.

Although experiences vary greatly, success was more common in the 1970s, 1980s, and 1990s than after the turn of the millennium. Whereas Spain (1975), Northern Ireland (1998), Chile (1989), Brazil (1985), Poland (1989), the Czech Republic (1989, 1993), South Africa (1994), Ghana (1992-2001), South Korea (1987), and Indonesia (1998) all achieved something substantial from their transitions, places such as Somalia (1991-), the Democratic Republic of the Congo (DRC; 2002), Iraq (2003), Libya (2011), Yemen (2012), Myanmar (2011-), Egypt (2011), Afghanistan (2001), and the Central African Republic (2013) all have struggled to make progress or collapsed into war.

The reasons for the mixed outcomes are many, but starting conditions play a major role. All else equal, a country that enters a transition with a high degree of social cohesion is likely to do better than one that doesn’t (Poland versus the DRC); one that has a relatively large and stable middle class is likely to do better than one without (Uruguay versus Guatemala); one that meets Weberian standards as a modern, post- patrimonial rule-of-law state will do better than one that does not (Spain versus Syria); and so on. In recent years, the countries entering a transition have, in general, been saddled with more difficult starting conditions—and thus more fragility—than in the past. Although demands for better governance and a more dignified life are spreading globally, some countries are not as well positioned to meet these expectations as their forebears.

Differences across countries include:

Strength of social cohesion and/or political settlement: Even if key actors come together to end a war or overthrow an authoritarian regime, they may quickly deadlock, as groups may have starkly contrasting views of how the state should be organized and key resources distributed. Such divisions often stem from ethnic or religious identities in fractured societies; these are harder to overcome.

Institutions: The strength of the state and a society’s bridging social institutions has enormous impact on whether a country has the capacity to manage conflict, equitably adjudicate differences, and distribute resources in a way that is widely seen as fair. While traditional mechanisms can play these roles in some contexts, some form of Weberian state institutions that can ensure equal treatment across different segments of a population are essential to creating a legitimate political order in more diverse polities. Patrimonial institutions, in contrast, are likely to yield a more zero-sum competition for power. The stronger the downward, upward, and horizontal accountability mechanisms, the more likely it is that these institutions will be responsive to rising expectations.

Role of the military: Although only one of many institutions that matter in any country, the security forces’ unique access to violence makes them especially important in weak states. Where they are also the only reasonably strong institution, their influence is that much greater.

Security: Any threat to security may drive key actors or groups apart, hurting any political process, and reduce investment, hurting the economy. Extremists, sectarian groups, and leaders of a former regime may use threats and acts of violence to gain or regain power and influence, or at least to disrupt tenuous political agreements.

Economic fundamentals: Poor living conditions and limited access to vital goods can help ignite the public anger that sparks a transition, and they constitute a crucial barometer for citizens to judge how well a new regime is functioning. If these don’t improve—possibly because of weak economic foundations (for example, the poor quality of the education system, infrastructure, financial system, legal regime, and business community)—many other problems will be or appear to be worse than they are, giving leaders less scope to compromise with opponents and to advance reforms.

Education: The more literate a population is, the more likely it is to have the human resources to fill key positions in the government, and the more likely it is to have the wherewithal to organize in ways that build wealth and hold leaders accountable. Although there are some exceptions (India), few countries have been able to democratize or industrialize without sufficient educational achievement.

Neighborhood: Countries are strongly influenced by their neighbors. The more robust the states, the more constructive the norms (related to coups, changing power, corruption, and so forth), and the more dynamic the economies, the more likely a country in transition will set itself on a positive trajectory.

Foreign Powers: Important foreign powers can either play a highly constructive role (for example, the European Union in Eastern Europe) or stand in the way of progress and even fund or arm local groups opposed to change (for example, Russia in the former Soviet states).

Even though societal and institutional dynamics (the first two elements above) are generally the most important, all of these factors interact, influencing one another in sometimes hard to disentangle ways. Change in one area will usually lead to change in another, even if the specifics remain mostly unknown to us.

While differences in starting conditions matter most during a transition—when a power vacuum emerges just as competing political identities surge in importance— they also strongly influence a country’s capacity to navigate any shock (for example, elections, the discovery of oil, the beginning or end of regional conflict, and dramatic change in food or export prices) or buildup of stress (such as demographic change, climate change, youth bulge, or economic stagnation). Differences in structural factors, institutions, and actors, as well as international context, mean that completely different political dynamics may be at play, necessitating vastly different strategies.

Fragility Continuum

The fragility continuum sorts countries based on their starting conditions. It plots states on a spectrum from most to least fragile (see diagram below) depending on their particular combination of the factors described above, and focusing especially their societal and institutional dynamics (which affect everything else).

On the right side of the continuum sit those with more cohesion, more robust institutions, better neighbors, stronger economic fundamentals, and so forth (category 1). These include almost all developed and developing countries such as Poland, South Korea, and Chile. This group is the most resilient. It has the best prospects for democratization and economic development.

On the left side sit the countries with highly fragmented political cultures, weakly institutionalized state structures, fragile neighbors, poor economic fundamentals, potentially high levels of negative foreign intervention, and so forth (category 3). The latter are more easily controlled, corrupted, or influenced to favor a particular (ruling or powerful) group at the expense of everyone else. This category, which includes Somalia, Libya, Yemen, the DRC, and Afghanistan, is comprised of fundamentally weak and unstable states. Even if such countries happen to be free from violence for a time, the prospects for any transition are still poor.

Naturally, category 2 lies in-between categories 1 and 3. States with weak but functioning institutions and less severe social fractures are more likely to remain stable even if they are held back by weak or nonexistent political settlements, severe disagreements about the nature of the state, limited capacity, mixed economic conditions, and the inability of institutions to constrain elites and security forces. Sri Lanka, which has been plagued by Sinhala-Tamil tensions since before its independence, and which suffered a bloody civil war from 1983-2009, typifies category 2 countries. Despite spurts of violence and a war, the state has functioned continuously and with reasonable efficiency in most of the country. Although a formula for a political settlement between the two groups exists, the Sinhala majority does not support it, and political leaders have been unwilling or unable to make the case. Meanwhile, the country’s weak institutions have proven unable to hold officials and security forces accountable for their actions, leading to significant bouts of corruption and human rights violations. Other countries in this middle category include Colombia (which is ending a half-century-old civil war), Kenya (which continues to suffer from ethnic divisions but has generally managed to limit violence), and the Philippines (which confronts a long-standing insurgency and deep class divisions).

Although all countries fit within one of the three categories, the template as a whole is best understood as a continuum; no two places have the same starting conditions or level of fragility. Many fall along the right side (in the case of category 1 and 2) or left side (in the case of categories 2 and 3) of their groups and thus come relatively close to straddling two categories. These boundary-dwellers share some similarities with countries on the other side of the dividing line.

Those that fall on the left side of category 2, or are fully in category 3, are the countries we typically associate with fragility. Some, such as Nigeria and Syria, have a chance to shift completely into category 3 because their fragmentation is severe and their capacity and legitimacy are limited. Syria would already have gone down the same road taken by places such as Yemen if not for the robust support it has received from Iran, Russia, and Hezbollah. Others, such as Guatemala, Uganda, and Liberia, have a history of violence, and, while they are unlikely to break down today, they still suffer from elevated levels of risk. They have made some progress strengthening their institutions and cohesion, but much work is necessary before they can enter into the middle range of category 2.

The developing countries on the right side of category 2 or in category 1—such as Ghana, Senegal, Tanzania, Bangladesh, and Cambodia—are cohesive enough to avoid most of the problems associated with fragility. They may suffer from various governance problems and underdevelopment, but they are free from severe identity- based divisions and existential questions about the nature of the state and society.

Category 4, the last one, is a special case. Countries in this category have one major institution (usually the military but sometimes an overbearing political party) that dominates the rest, playing an outsized role in every aspect of national life. This one very capable institution typically both builds some form of unity by agglomerating different groups and interests together and ensures a minimal level of stability through its capacity for coercion. A charismatic individual can play a similar function to a strong institution but is less likely to pass that strength onward when he passes from the scene, as was the case, for example, with Félix Houphouët-Boigny in Côte d’Ivoire.

Category 4 countries are plotted somewhere from the left to the middle of the continuum; they mostly, but not exclusively, overlap with category 2. In highly fragile contexts (category 3 and the left side of category 2), the one institution could play a crucial stabilizing role even if governance is lopsided. If it gradually builds cohesion

and institutions and reduces its role in society, it could leave a lasting positive legacy.

In Indonesia, for instance, the military has played a crucial if violent role in unifying and strengthening the diverse country since independence and now is much less important than it once was. In Tanzania, the Chama Cha Mapinduzi (and its predecessor parties) has helped make what is a highly diverse country one of the more cohesive polities in sub-Saharan Africa. In Turkey, Mustafa Kemal Atatürk and the military forces that remained committed to his legacy after his death in 1938 played a crucial role building up and steering the state for generations. Myanmar’s military, on the other hand, has achieved much less for its half-century of dominance. In Pakistan, the armed forces’ role is, at best, mixed: It may have stabilized a weak state and introduced economic reform at times, but at the least it has stood in the way of improving relations with India, enhancing the rule of law, and creating more accountable government.

In better contexts, such as those on the right side of category 2 or just inside category 1, an overbearing institution is more likely to block change in ways that are counterproductive. For instance, even though Egypt arguably already has reasonably functioning institutions and sufficient cohesion to enact ambitious reforms, the military’s domination of the state makes major progress unlikely.

The Policy Continuum 

These four different types of states face different challenges and therefore require different policies in order to successfully transition to a more inclusive and stable political order after a conflict or fall of government. 

The more robust states from category 1 have the easiest time because their starting conditions are favorable. They can handle the traditional playbook emphasizing a rapid move toward elections and the introduction of robust economic reforms. Most category 1 countries in fact have already successfully navigated the changeover to democracy in one of the democratization waves that took place before 2000. There are thus few category 1 countries left, unless they are regions that will someday secede from a larger state (such as, Kurdistan and Somaliland). Transitions in recent years have mostly come from the other three categories, with the increased difficulties that their starting conditions bring. 

Category 2 countries facing transition can move forward, albeit more cautiously, assuming that they introduce policies from the peacemaking or conflict management toolkit that take into account their fragmentation. Existing or potential social cleavages need to be actively managed and, ideally, ameliorated. This means focusing on reducing inequalities between ethnic, religious, and clan groups and regions, possibly through substantial decentralization and the reallocation of funds such that historically marginalized or disadvantaged groups feel that they have a greater stake in the country. 

Such reforms must be done carefully, so as to avoid a backlash from historically dominant groups. These changes should be accompanied by attempts to strengthen national social cohesion and bridging social institutions, such that a society has greater capacity to manage conflict. In Sri Lanka, for example, more decentralization and empowerment of the Tamil region, accompanied by steps to create a more inclusive national identity, are essential. But weak institutions may hinder many transitions from countries in this group: Even if new policies are introduced, change on the ground may be limited; powerful actors may not be held to account; and attempts to make the state more equitable and inclusive may come up short or fail altogether. 

Category 3 countries, on the other hand, can easily be imperiled by any transition because the glue—whether social or institutional—that holds them together is brittle. In the worst cases, the lack of any autonomous institution robust enough to equitably adjudicate between groups makes a repressive state the only route to stability, as Syria shows. This is where monarchies have certain advantage: If they have a long enough history, they can make up with legitimacy what they lack in strength, as was the case in Afghanistan and Libya before their kings were overthrown. Indeed, it is not a coincidence that the Arab Spring protests occurred almost exclusively in countries without monarchies (Bahrain being the sole exception). A place like Saudi Arabia would be much more vulnerable if it lacked a king (and oil). 

In category 3 countries, transitions need to be undertaken with extreme caution because the risks are great. It is better to attempt incremental progress—for example, to improve opportunity, decentralize decision-making, reallocate resources, and strengthen the rule of law—than to completely overturn a regime or rapidly introduce elections. Syria, for example, would have fared better with reform than it has with revolution. 

If a transition fails, it might be easier to restore political order piecemeal—building region by region around cohesive pockets and local institutions—rather than attempting what might be an impossible national settlement. Libya, Somalia, the DRC, and Yemen would have had a better chance at stabilizing if such a strategy had been adopted; the current attempts to establish national political settlements around national elections provide excellent examples of how the one-size-fits-all approach works against stability and the people’s best interests. Afghanistan would be in the same boat without foreign troops to strengthen the center. But its stability will ultimately depend on a similar piecemeal approach: Its institutions are stronger locally than they are nationally, and that is where the emphasis in reform should be. In many category 3 countries, only a weak center and radical decentralization can bring stability. 

Category 4 countries require a combination of policies, some emanating from the above category 2 and 3 policies, and some specially designed to take into account the importance of the one dominating institution. For the more fragile states (situated well to the left of the continuum), the one institution provides an essential element in stability and therefore must play an essential role in reform; eliminating it, however essential due to its historical failures, could be devastating (note Iraq after March 2003). Instead, a program that gradually reduces the institution’s role in the economy and politics and expands the rule of law should be attempted in parallel with other changes empowering other groups. This may be easier written than wrought if the strength of the institution is so much greater than any other entity. Even though the military in Pakistan has handed over power to civilians and allowed them to make many decisions unheeded, it still maintains a tight leash on various policy domains (such as internal security and foreign policy) and significant influence on many key institutions (for example, parts of the judicial system). In less fragile category 4 states, greater cohesion and a larger web of institutions provide greater scope for reform. The focus can be on more ambitious reforms that are implemented in a way that keeps the dominant entity reasonably happy, at least in the short- to medium-term. In Venezuela, for instance, reform is possible, but the Chavistas stand in the way. If a transition is to begin, any bargain needs to protect some of their core interests, offering, for example, conditional amnesties, a welfare plan for members of the military and police, and commitments to maintain core elements of the Chavista socioeconomic program. Such agreements—whether formal or informal—are not ideal, but they enable progress. And their importance often diminishes over time. 

Less fragile places can move faster than more fragile places. Political order is more robust, less dependent on a particular constellation of actors and institutions, and more inherent to the system itself. These places have more leeway, though other factors (such as lack of administrative capacity, infrastructure, education) may still constrain the effectiveness of changes. In the more fragile places, political order needs to be prioritized more—and that prioritization only increases the more to the left on the continuum a country is situated. Change is possible, but only cautiously. Western- style elections, for example, can be more disruptive and polarizing without a significant preparation period and if the new system does not take into account the local context. Forced coalitions and clear rules on the distribution of resources may be better than majoritarian rule and economically based resource allocation. 

In all these cases, actors need to build broad coalitions to ensure that support for change is wide and deep enough to keep opponents from derailing the transition. This is especially true in categories 2-4, all of which face more spoilers than places with better starting conditions—places where a common identity makes a defeat at the polls more acceptable. 

Non-state actors are gaining importance, too, and so political coalitions need to not just take into account traditional political actors such as parties, but also religious groups, ethnic leaders, civil society leaders, the business sector, and so forth—any potentially important actor that can commit to constructive change. The more cohesive and inclusive (within certain limits—including everyone can stall progress too) the alliance, the better it will withstand the inevitable disappointments and failures that all transitions experience in one form or another. 

Applying the Continuum 

This framework can be used to strategize policy for any country entering or potentially on the verge of a transition after a regime change or war. This includes movement both toward (which much of the above discussion assumes) as well as away from democratic, authoritarian, or other forms of government as well as any case where significant changes to government take place due to the end of a war or the onset of a major crisis. As such, it includes transitions triggered by military coup (as in Nigeria, Thailand), death of a ruler (as in Spain, Côte d’Ivoire), leadership succession (as with elite battles following death of a leader), violent overthrow of the government (as in Rwanda, Ethiopia, China, Cuba), a popular uprising that successfully pushes for reform (as in Tunisia, Ukraine, Gambia), a breakup of a country or secession (as with Slovenia, South Sudan), economic crisis (Indonesia and Brazil, for example), reform initiated by an authoritarian ruler (as in Ghana and Taiwan), withdrawal of foreign support (Eastern Europe, many African countries in the early 1990s), peace agreement (Mozambique, Nepal), referendum (Chile), settlement of an ethnic dispute (Macedonia), military victory (Sri Lanka), establishment of a new constitution (Colombia in 1991), and regime breakdown via defections (as happened with the Soviet Union). Each of these brings varying risks for instability and U.S. interests in the country. The better policies are configured according to local starting conditions, the more likely they will succeed. 

So let’s turn the clock back to early 2011. How would a fragility continuum approach have applied to American policies when the Arab Spring commenced? 

In Tunisia, the choices were easy. The country is relatively cohesive, and has a large middle class with significant exposure to European norms. Its government may be bureaucratic and slow, but it works. The military may have initially protected the old regime, but it was quick both to turn against it and to pledge to stay out of politics after the post-Ben Ali transition began. As a category 1 country, the traditional policy toolkit should mostly work—and it has. Some customization to local conditions is required, but not to the fundamental set of tools. Tunisia’s main fault lines—between religious and secular groups and between inland and coastal regions—should have been worked on earlier than they have, but they are not serious enough to threaten the country’s trajectory. Its economic and institutional weaknesses have produced disappointment and anger and need to be addressed, but these have not held the country back. Even though Tunisia has faced many problems, it has achieved remarkable progress compared to other Arab countries.

Egypt has decent cohesion (except for Sinai) and institutions, the products of its long history as a state, but it has a relatively much smaller middle class than Tunisia, much less exposure to and experience with democratic norms, and a much less developed civil society. Moreover, it has an organization—the military—that has suffocated opponents, intervened to profit from the economy, and leveraged the country’s geopolitical importance to build a strong set of international backers. 

There is also a greater religious-secular divide in Egypt than in Tunisia, partly because the country is inherently more religious and the strongest non-state institutions before 2011 were religious in nature (which caused friction with other groups that were less organized after 2011). The country is in category 4, with characteristics of countries situated on the right side of category 2. Reform is possible but only in a way that does not directly threaten the military’s interests and that allows a significant period of adjustment so that democratic norms can take root and state and non-state institutions can be strengthened. The best case might have been similar in some respects to what has happened in Pakistan since 2008, which now has regular elections and changes in ruling parties despite the military not relinquishing much power. Instead of erroneously assuming that the military had vacated the scene and that the sequencing of events would not have serious consequences, the U.S. government should have focused its efforts from the very start of the transition in 2011 on a strategy that combined a much longer transition period with a much clearer set of rules and mechanisms to protect the military’s interests and improve the rule of law and non-state institutions. The ad hoc and rushed nature of many aspects of the transition was not in the country’s long-term interests. 

Libya is a category 3 state, with little national cohesion and no national institution capable of arbitrating between the country’s many ethnic and tribal groups. It has few civil society organizations and its social institutions are bonding (at the subnational group level), not bridging (at the national level). There is no history of democracy. Given these conditions, any transition was going to be treacherous; and a violent civil war that left its myriad actors armed outright dangerous. 

The U.S. government should have seen this reality more clearly in 2011. Moving to oust Qaddafi was not wrong, but it was not a strategy for stability going forward. Instead, when the U.S. government provided military support to the opposition, it should have accompanied this with greater effort to negotiate a way forward—one trip to Tunis to meet with Libyan representatives was not enough. It could have more clearly offered Qaddafi and his henchman asylum and a role in the new government for officials who worked for him but had no blood on their hands. A peacekeeping force and a long transition period should have been built into the plan on the assumption that the transition would fail otherwise. In addition, the U.S. administration should have played a stronger role after the fall of Qaddafi, among other things, forcefully opposing any policy that exacerbated domestic divisions—such as the 2013 lustration law, which prevented anyone from the previous regime from working in the new government. 

Despite a very different sociopolitical makeup, Yemen has the same basic ingredients as Libya: weak national cohesion, few national institutions capable of arbitrating differences between groups, little exposure to democratic norms, and a civil society that has actually regressed from historic norms. Moreover, it has a very thin middle class and very poor economic conditions. The previous ruler—Ali Abdullah Saleh, Yemen’s president for three decades—remained active after his fall from power until his assassination, albeit in a weakened position. The dispersion of weapons and outside intervention on opposing sides of the conflict exacerbates divisions, especially around religion, which historically meant much less than tribal and regional differences in Yemen. 

Yemen’s transition was always going to be fraught. The best that could have been hoped for was some form of confederacy around relatively robust regional institutions. The central government’s role would have needed to depend on consensus and compromise among the regional groupings. But this would have required a more forceful effort to keep outside intervention and threats from terrorist groups (namely al-Qaeda in the Arabian Peninsula—AQAP) minimal and to ensure that some basic rules about the limits of each group’s extension of authority were kept. But that might have required more effort than any gains from success given Yemen’s relatively marginal importance to the United States. 

Syria, splintered ethnically, regionally, religiously, and ideologically into many competing groups and with a weakly institutionalized government but a loyal security force, is a mixture of a category 3 and 4 country—possibly the worst conditions for any attempt at a rapid transition. 

Syria is relatively poor, with little exposure to international norms and little experience with democracy or statehood. Institutions are plagued by patronage and corruption, and rarely apolitical. The army has served one sect at the expense of everyone else. Even the opposition forces have great difficulty working together because of their own numerous divisions. Any reform that threatened the minority Alawis and the government’s loyal security forces would be a recipe for disaster, as the events of 1982 in Hama should have made clear (when an uprising led to the massacre of at least 25,000 mostly unarmed civilians). The only way forward was to accept the need to work with the existing regime—however distasteful—in a way that expanded opportunity and the rights of citizens (such as the Kurds, many of which were stateless) and built a more inclusive, legitimate political settlement at the national level.

The challenges to this approach were many—the Assad regime’s bad behavior at home and abroad; the great distaste and distrust of many opponents; the difficulty in crafting some arrangement that might please enough actors; and, possibly above all else, the country’s weak economy and institutions, which provided few spoils to share and made corruption a menace that was hard to combat. Previous attempts at reform have mostly enriched insiders; any change would thus have had to formulate a way for reform to spread gains more widely in order for them to generate greater legitimacy and support for the political order. U.S. policy could have taken a more active role making such proposals and offering incentives for the myriad actors to cooperate. It would not have been easy, but the alternative was either the unsustainable status quo or something much more violent. 

Any policy for Bahrain, whose revolt garnered the least attention and ended the quickest, was complicated by the U.S. dependence on the country: Naval Forces Central Command and the Fifth Fleet are both headquartered in a base within the country. Small, religiously divided with national institutions and security forces that depend on the monarchy, with only a limited history of democratic politics, and geographically located between Saudi Arabia (its traditional patron) and Iran, the country was highly vulnerable to the rising Shi’a-Sunni tensions that engulfed the region. 

It is a borderline category 4 country situated in the center-left part of the continuum. This means that change must be undertaken cautiously and in a way that neither weakens its dominant institutions (centered on the monarchy) nor threatens their interests in such a way that they begin a backlash (which is what ultimately occurred). Leaders should have instituted, with American support, reforms that gradually empowered the historically disadvantaged groups (Shi’a and some Sunnis) but only in a gradual way that did not undermine the delicate status quo (as Morocco and Jordan have done successfully to some extent). Calls for democracy, which would have completely overturned the existing state of affairs, would have been foolishly risky. 

It is imperative going forward that national leaders and international actors better assess local conditions in countries transitioning after a war or regime change and design strategies to fit local realities. The international default framework of how countries are supposed to work can only cause problems for states—and American interests—when applied to categories 2 through 4, with increasing problems the further to the left on the fragility continuum the country. 

Instead of a narrow focus on elections, the U.S. and other governments need to develop a broader set of criteria to measure progress. Indeed, many countries regularly hold elections but do not necessary work inclusively, accountably, and responsively for their citizens. It is better to take a broad perspective on transitions and progress, and consider how lives can be improved, rather than imposing a one-size-fits-all approach. 

This does not mean giving authoritarian regimes a blank check. Instead, by using a wider set of criteria—measuring, among other things, whether institutions are getting stronger, power and resources are being equitably distributed, cohesion is increasing, bridging non-state social institutions are developing, and the economy is advancing in an inclusive manner—all rulers can be better evaluated and held to account. The current narrow focus on elections, in contrast, gives many underserving autocrats a free pass while providing few tools other than regime change to pressure one-party states and authoritarian regimes. 

As is true for all sorts of political analysis, using many criteria is harder than simply examining one—in this case, whether a country has elections or not—but it is far more constructive for countries with complex sociopolitical dynamics. And that happens to be all countries. 

Originally published in The American Interest

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