Transitional Justice: Transitional Justice & Peacebuilding Processes
There is a general consensus among scholars and practitioners that addressing the legacies of past violence and human rights abuse is necessary for fostering sustainable peace. "Transitional justice embodies an attempt to build a sustainable peace after conflict, mass violence or systemic human rights abuse."1 Justice is generally thought to have a positive contribution to the restoration and maintenance of peace in the following ways: "by establishing individual accountability, deterring future violations, establishing an historical record, promoting reconciliation and healing, giving victims a means of redress, removing perpetrators and supporting capacity-building and the rue of law."2
The purpose of this section is to provide a brief synthesis of the purported "peacebuilding functions" of transitional justice, as well as of the connections between transitional justice and other dimensions of the larger justice and peacebuilding agendas. It is important to note that many, if not most, claims about the peacebuilding functions of transitional justice are based on little empirical basis. Instead, they largely reflect normative commitments; as such, they are the subject of a great deal of criticism, scrutiny, and debate.3 Go to Debates and Implementation Challenges
Transitional justice is generally thought to help prevent recurrence of violent conflict and foster sustainable peace by:
The contribution of transitional justice (TJ) mechanisms to establishing an historical recordA truth commission is the primary transitional justice mechanism for establishing an historical record. Truth commissions are designed to provide an independent, accurate and authoritative account of the violent past, with a particular emphasis on the causes, patterns, and consequences of the armed conflict or mass atrocities--in other words, they aim to capture the "broad truth." Truth commission reports can serve to minimize the number of blatant falsehoods that may circulate in public discourse and to set the boundaries of acceptable disagreement and debate about the past.4
Other transitional justice mechanisms are also said to contribute to establishing an historical record. Some scholars have argued that in modern-day episodes of armed conflict, where the structure of violence is rather diffuse and complex, "only trials could provide for the confrontation of evidence and witnesses that would crate an impeachable factual record."5 By examining evidence and establishing guilt, trials can ascertain historical facts. However, they typically uncover "forensic truth" (who did what to whom) rather than broader forms of inquiry that seek to capture the historical, structural, and institutional factors that contributed to armed conflict or mass atrocitiesin other words the "complex truths" about the past.6
Local justice processes can help construct micro histories of the violent conflict--that is, why, how, and with what legacies the violence unfolded in a particular community. Memorialization projects, such as monuments or museums, can preserve the history of the violent past and educate people about it, especially the young.7 Public political apologies can also set the historical record straight by officially acknowledging historical facts. Go to Memorialization, historiography & history education
The role of TJ mechanisms in countering denialTransitional justice mechanisms are also designed to counter denial - the practice of questioning or denying certain historical facts - which is considered a significant obstacle to genuine peace. Denial of historical events suggests that those doing the denying (and the broader sections of society that subscribe to such beliefs) refuse to acknowledge the wrongs done to the victims, and do not assume some form of responsibility for the commission of those acts. For victims, denial essentially means that the conditions that gave rise to past mass abuses persist and may even recur. In addition to perpetuating the psychological suffering of victims, denial is seen to further divide and polarize a post-conflict society.8 Conflicts over the past can, under certain circumstances, lead to new cycles of violence.
By providing an authoritative account of the past, transitional justice mechanisms can make it difficult for conflict entrepreneurs to propagate violence-generating myths or fallacious, politicized accounts of history for political purposes, such as fomenting violence against certain sections of society, especially other ethnic groups.9
Establishing an accurate historical record and countering denial are thus seen as ways to prevent recurrence of violent conflict. As one transitional justice expert notes, "Establishing an official truth about a brutal past can help inoculate future generations against revisionism and empower citizens to recognise and resist a return to abusive practices."10
The link between transitional justice & memory and history workThe increased recognition of memorialization within the transitional justice field is exemplified by the recommendations made by various truth commission reports, which endorse the idea of symbolic reparations in the form of memorials, sites of memory, commemorative days, the renaming of public facilities in the names of victims, and other artistic/cultural endeavors.11 A clear connection also exists between history work and transitional justice. Truth commissions and criminal trials offer a certain representation of what has occurred. As such, they participate in the construction of collective narratives, and shape collective memory; a process that may go with many contradictions.12 More efforts will be certainly needed to ensure that "truth commissions make better use of their proceedings and final reports to prepare countries for tasks that logically followincorporating the truth commissions findings into educational programs and memorial projects designed to prevent future generations from forgetting the past and repeating its mistakes."13
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The role of different TJ mechanismsCriminal prosecutions (whether international, national, or hybrid) are considered the main mechanism of accountability.15 By bringing suspected perpetrators of grave human rights violations to account, trials signal a clear break with the past "culture of impunity" where armed combatants committed human rights violations free from the fear of prosecution.16Trials can also indicate that the new political order is based on the rule of law.17
Non-judicial activities such as truth commissions, social shaming, and vetting processes also provide opportunities for accountability. For example, a perpetrator's public testimony and admission of wrongdoing in a truth commission can be said to be a non-judicial form of accountability. Another way in which truth commissions can promote accountability is by naming the perpetrators in their reports, which can lead to non-judicial sanctions such as social shaming, approbation, and ostracism. Similarly, vetting processes ensure that the newly reformed state institutions (such as the police, the judiciary) will be staffed with individuals without poor human rights records and will follow rights-respecting laws. Moreover, they signal that future abuses will be met with appropriate judicial or administrative sanctions.
Go to Judicial and Legal Reform/(Re)construction
The role of traditional, informal or local justice processes
The role of traditional, informal, or local mechanisms of transitional justice has been an area of growing academic and policy interest.18 Peru, Northern Uganda, Rwanda, Mozambique, and East Timor stand out as places where local forms of justice have been or are being practiced as an explicit approach to reckoning with mass atrocities. While there is a great deal of debate and controversy about the meaning of "traditional," "informal," and "local," there is a general understanding that these terms involve practices that take place at the community level and have some origins in that communitys cultural repertoire. Those justice processes, combining elements of retributive and restorative justice, hold low-level perpetrators accountable for past abuses and impose non-criminal, community-oriented penalties, such as monetary compensation or community service.
It is important to distinguish the different elements at play in the process of reconciliation at the individual and collective levels.
The debated role of truth tellingTruth commissions are perhaps the most touted transitional justice mechanism for advancing reconciliation.23 Indeed, some commissions are called truth and reconciliation commissions. The idea that bringing out the truth advances reconciliation is "a central dogma underlying contemporary debates on transitional justice."24 Louis Kriesberg, an academic who has written extensively on reconciliation, explains that "many partisans of a conflict, as well as analysts, regard truth as an important dimension of reconciliation since members of antagonistic sides tend to deny what members of the other side experience and believe to be true."25 In this sense, the truth commission is considered to be "a facilitator that can improve communication and mutual tolerance of diversity,"26 as crimes from the past are revealed. Go to Reconciliation and Debate and Implementation challenges: The ambiguities of truth
The prevention of acts of revengeA crucial benefit of criminal justice, some argue, is that it "institutionalizes and moderates desires for revenge,"27 by channeling it to state institutions responsible for the administration of justice. As a result, trials prevent private, popular acts of vengeance from taking place, which can destabilize fragile post-conflict societies. Another way in which criminal prosecutions are said to help prevent the recurrence of violent conflict is by signaling to potential human rights offenders that future human rights violations will entail significant costs in the form of accountability. This is known as the "deterrent effect" of criminal prosecutions.28
The individualization of guiltBy targeting individuals responsible for gross human rights violations, trials are said to individualize guilt. According to one scholar, "only trials could adequately individualize responsibility, holding the guilty parties liable without stigmatizing entire ethnic or religious groups. This was important to avoid continuing bouts of violence as well as the temptation of private revenge."29 Conversely, criminal trials aim to dispel the notion that whole groups are responsible for mass atrocities (for example, countering the assertion that all Hutus are to blame for the Rwandan genocide). By countering the stigmatization of groups, trials enable people belonging to groups previously separated by violent conflict to establish mutually cooperative relations and to coexist peacefully.
Social repairTrials advance reconciliation at the individual and societal level. For instance, many practitioners and policymakers "conceive of international criminal trials as the centerpiece of social repair."30 Different elements are generally subsumed within the notion of social repair; they mainly have to do with healing processes and socio-economic repair.
Transitional justice & individual healing processes
At the individual level, the prosecution of war criminals can bring healing and closure to victims and enable them to rebuild healthy social relationships and to resume normal lives. Some studies show that "PTSD and depression in war survivors appearto be independent of sense of injustice arising from perceivedlack of redress for trauma [and that] fear of threat to safety and lossof control over life appeared to be the most important mediating factors."31 However, it is generally considered that transitional justice measures can play a role in healing processes. There has been much debate as to whether the processes and procedures of truth commissions can contribute to societal and individual healing or whether they re-injure victims by eliciting and revisiting the trauma through testimony.32 In the case of the South African TRC, one of the most researched and debated from this point of view, some psychological analyses have explicitly presented the TRC as able to serve some of the functions of a healing ritual; how this was fulfilled remains debated, in particular by survivors themselves.33 The role of truth commissions is also discussed in relation to different cultural approaches to trauma.34 The few existing studies with regards to judicial actions call for similar caution. As one study indicates, "only some of the survivors who have seen those responsible for their abuse brought to trial have found comfort, and some have experienced additional distress.35 In fact, more research is needed to establish if and how the operation of different transitional justice interventions affect the psychological states of survivors of violent conflict. Given existing evidence, it is too soon to conclude that judicial initiatives have therapeutic benefits for most survivors.36 At best, a single transitional justice mechanism can just begin these processes and may only be successful if carried out in tandem with other social reconstruction efforts.37 The role survivors play in these mechanisms is also an important factor as they are often kept outside of the process.38 The role of truth commissions is also discussed in relation to cultural differences in expressing trauma.39 The few existing studies with regard to judicial actions similarly call for cultural awareness. As one study indicates, "only some of the survivors who have seen those responsible for their abuse brought to trial have found comfort, and some have experienced additional distress."40 In fact, "more research is needed to establish if and how the operation of different transitional justice interventions affect the psychological states of survivors of violent conflict...Given existing evidence, it is too soon to conclude that judicial initiatives have therapeutic benefits for most survivors."41 At best, a single transitional justice mechanism can begin these processes and may only be successful if carried out in tandem with other social reconstruction efforts.42 Go to Trauma, mental health and psycho-social well-being
Reparations and socio-economic recovery
The contribution of reparation programs to the notion of social repair is less arguable. Reparations, whether material or symbolic, potentially have a more direct impact on a reconciliation process because they are usually concrete and tangible. Material reparation packages (usually monetary compensation) are tangible ways of acknowledging and (partially) compensating for the wrongs done to victims. Monetary compensation may also improve the material situation of those who have lost the means to earn an income, or whose income has been significantly reduced as a consequence of violations. Some analyses have called for a closer connection between reparative measures for victims and efforts to tackle structural inequalities.43 This would require a broader conception of justice, "incorporating aspects of distributive justice that aim to address socio-economic inequalities and ensure equal access to existing resources."44 Restitution of property or employment as well as rehabilitation programs can also improve the physical and psychological health and well-being of victims insofar as they can help victims re-engage in economic activity and cope better with the consequences of past violations. Ultimately, however, rehabilitation and healing of victims entails addressing wider socio-economic circumstances, indicating the need to address structural inequalities and ensure access to basic services. Yet, recent analyses have shown that the field of transitional justice--in both its institutional and scholarly aspects--has historically excluded issues of economic inequality, structural violence, redistribution and development, with three possible costs for this "economic invisibility": (1) an incomplete understanding of the origins of conflict; (2) an inability to imagine structural change due to a focuson reparations; and (3) the possibility of renewed violencedue to a failure to address the role of inequality in conflict.45 A greater acknowledgement of the nexus between transitional justice and development should help advance this agenda in the next future.
(Re)building trust in institutionsFostering trust in state institutions and among formerly antagonistic sections of society is thought to be as essential for preventing violent conflict. Prosecutions may contribute to this as they serve to signal a break with the violent and immoral past, to deter future crimes, to strengthen the rule of law, and to foster trust in the capacity of the state to prevent, control and punish violence. Here, different components of the justice and rule of law agenda come into play:
Human rights constitute the overarching frame of reference for transitional justice.46 Fundamentally, transitional justice is about confronting past human rights violations and preventing further abuse.47 It therefore holds both a retrospective and prospective dimension. "Trials should not be viewed only as expressions of a societal desire for retribution, they also play a vital expressive function in publicly reaffirming essential norms and values that when violated should give rise to sanctions. Trials can also help to reestablish trust between citizens and the state by demonstrating to those whose rights have been violated that state institutions will seek to protect rather than violate their rights. This may help to restore the dignity of victims and reduce their sense of anger, marginalisation and grievance."48
Traumatic events of the past also create heavy legacies for future generations; if not addressed, they risk undermining efforts to establish sustainable human rights protection systems. Indeed, "the lack of justice and accountability perpetuates climates of impunity, which undermine the rule of law as well as exacerbating a sense of injustice and discrimination within targeted communities."49 Transitional justice processes (whether truth commission investigations, criminal prosecutions, trials, reparations, or institutional reforms, or a combination thereof) reaffirm and protect the rights of victims, counter impunity for human rights abuses by holding perpetrators to account, and aim to prevent future human rights abuses by reforming (or recommending the reform of) historically abusive or dysfunctional institutions.
Transitional justice programs also have broader effects on the capacity of the state and society to protect human rights in a sustainable manner. For example, the public proceedings of a truth commission and the effective dissemination of its findings as well as public information campaigns organized around the transitional justice processes, contribute to raising public awareness about human rights protection and fostering a culture of human rights. Transitional justice programs also generally mobilize extensive civil society networks and members of the national judicial system, potentially contributing to a sustainable community of citizens engaged in the protection of human rights.50 The principle that effective transitional justice is integral to the ability of a state to build a sustainable human rights protection system is expressly acknowledged by the UN, and exemplified by frequent statements of the High Commissioner for Human Rights.51
Transitional justice and judicial and legal reform/(re)construction
The reconstruction or, in some instances, construction of institutions designed to deliver justice is presented by some analysts as "core transitional business."52 Indeed, judicial systems (that is, courts, judges, lawyers, bar associations, etc.) in countries emerging from violent conflict are often illegitimate but functional, corrupt and dysfunctional, or devastated and non-functional.53 Post-conflict judicial systems usually suffer from severe shortages of qualified judges, prosecutors, lawyers, and court clerks, the presence of politically tainted, under-qualified or corrupt judicial officials, a lack of financial and material resources, devastated physical infrastructure (such as court buildings), outdated or inapplicable laws, and widespread popular mistrust (and even fear) of the justice system.54 At the same time, post-conflict societies generally have to face the consequences of widespread human rights violations caused by large-scale violence. Judicial systems may need to deal with huge numbers of suspected perpetrators, while simultaneously attempting to recruit and train judicial personnel, and revise domestic laws to ensure compliance with international human rights standards and restore the faith of the population in the reconstructed justice system.
One key area of convergence between transitional justice and institutional reform is vetting, which lies at the nexus of backward- and forward-looking approaches to justice. By vetting current or prospective public employees and excluding those with tainted human rights records, the reformed institutions are more likely to respect and protect human rights, and to win the trust of the public.
More generally, transitional justice mechanisms, by adjudicating past human rights violations, may improve the ability of the domestic judicial system to address future human rights and justice concerns. For example, a truth commission, on the basis of a thorough analysis of the structural and systemic causes of past human rights violations, can make recommendations on judicial and legal reforms, namely, which historically abusive institutions to reform and how. "Hybrid" courts, which bring together national and international judges and other personnel, provide a clear area of synergy between transitional justice and institutional reform. By working together on a daily basis in the adjudication of serious human rights violations, it is hoped that national and international judges will share knowledge and expertise, and, most importantly, that domestic judicial capacities will be enhanced and will eventually become sustainable. Such hybrid institutions currently operate in Sierra Leone, Cambodia, and Bosnia-Herzegovina.
By comparison, the situation of a separate international tribunal is quite different. It may adequately address past grievances, but contribute little legitimacy to the national justice system. It can also be perceived as diverting resources that could be better used to support the national system. However international criminal prosecutions and domestic judicial capacities have some interactions. Consider the War Crimes Chamber (WCC) of the Court of Bosnia and Herzegovina, which is a hybrid institution whose War Crimes Panel includes a presiding Bosnian judge and two international judges. The Chamber was established by the International Criminal Tribunal for the Former Yugolsavia (ICTY) and the High Representative as a mechanism for phasing out the ICTY and transferring the responsibility for criminal prosecutions to national actors. But the War Crimes Chamber is a permanent, national institution that apples domestic law. It is mandated to try cases of suspected mid- and low-level perpetrators of genocide, crimes against humanity, and war crimes that are referred to it by the ICTY. Given the temporary nature of the ICTY (it is supposed to terminate its work in 2010), and the shortcomings associated with it, the War Crimes Chamber is designed to confront the impunity gap in the Balkans, ensure national ownership and strengthen the domestic justice system.55 Go to Judicial and Legal Reform/(Re)construction
Transitional justice and access to justice
"If there is no justice accessible in the aftermath of conflict, or if there is only unequal access, the risk of a re-emergence of violent conflict increases."56 Yet, violent conflict tends to disrupt the local and non-judicial provision of justice. Transitional justice processes can serve to fill this critical gap by providing much needed, albeit temporary, access to justice. Criminal prosecutions, truth commissions, and reparation packages, among other initiatives, can serve as tools for people to lodge claims and secure remedies, thus meeting their justice needs. Criminal prosecutions may enhance access to justice by reaffirming and defending victims' rights. Truth commissions may contribute to access to justice by upholding survivors and relatives' right to know what happened to their loved ones. Reparations, in particular, may play a central role in empowering disadvantaged people by providing them with material compensation (usually in the form of money transfers) and symbolic acts (official apologies, exhumation ceremonies, memorialization projects) that acknowledge their suffering, and restore their sense of dignity and agency.
Transitional justice and security sector reform
Reforming abusive security systems to prevent recurrence and provide effective and accountable security to communities has also become a central concern of transitional justice advocates.57 Until recently, the linkages between transitional justice and security sector reform (SSR) had been left largely unexplored, although the link between transitional justice and rule of law--accountability for the past to ensure rule of law in the future--had been acknowledged.58 SSR and transitional justice have three key common objectives: to hold actors in the security and justice sectors accountable for their present and future acts; to contribute to strengthening the rule of law; and to aim at non-reoccurrence, by focusing on establishing oversight and transparency in both sectors.59 Go to Security Sector Reform
The construction of a re-imagined political community and a democratic system
Transitional justice mechanisms contribute to the construction of a new national narrative that can lay the basis for a re-imagined political community.60 As these mechanisms acknowledge the past and articulate a vision for the future, they help build a sense of a (renewed) trust in the newly reconstituted political community. This is sometimes referred to as "civic trust," a key notion in the literature on democratization and civil society.61 Another key component of that civic trust is a renewed trust in state institutions; public political apologies as concrete symbolic acts and reparations as materials one can contribute to increasing that level of trust.62 Transitional justice programs also reaffirm essential norms and values that a society will stress in its fundamental law.
The issue of the political transformation and reinsertion of former military leaders and combatants
The political transformation of former combatants, and their leaders, raises a particular moral and judicial dilemma.70 In Northern Uganda, the International Criminal Court (ICC) issued indictments against Lords Resistance Army (LRA) leaders. When the LRA elected to participate in peace agreements, transitional advocates became divided on the issue. Some felt that it was best to encourage continued peace talks at the expense of justice, and supported turning instead to local justice rituals (the relative successes and drawbacks of which have also been debated). Meanwhile, others, such as Amnesty International, have been strong advocates against such measures, which are perceived as granting impunity to the worst criminals, signaling to others that this type of violence is permissible, and undermining the authority of the ICC in a broader context.71 In other cases, the international community has more clearly chosen peace at the expense of justice. In Mozambique, former combatants were paid significant amounts in order to stop fighting and the main "rebel" leaders of RENAMO were coerced financially by the international community to "play the democratic game."72