Davis, L. 2014. The role of justice in peacebuilding: Lessons from transitional justice. GREAT insights Magazine, Volume 4, Issue 1. December 2014/January 2015.
Transitional justice initiatives are often undertaken in societies emerging from violent conflict and/or authoritarian rule. “Transitional justice” refers to a set of judicial and non-judicial approaches that societies may use to deal with the legacy of massive and systematic human rights violations, to contribute to fairer, more democratic societies in which human rights are respected and protected.
There is no blueprint for whether, when or how a society deals with the past, but the most common transitional justice mechanisms include: prosecutions through domestic courts, internationalised or hybrid tribunals, or the International Criminal Court (ICC); truth-seeking; reparations for victims; and the reform of public institutions, particularly in the justice and security sectors.
After violent conflict, demand for justice may be high but the ability of state institutions to deliver is often low. The justice system may be weak or absent, or the justice and security services may be repressive and part of the conflict and not trusted by (part of) the population. Transitional justice may contribute to strengthening the legitimacy of public institutions – particularly in the justice and security sectors. It can therefore be seen as an important part of peace- and state-building.
Although usually framed as a way to deal with the past, transitional justice is often intended to contribute to social and political change and to developing legitimate institutions. However, these initiatives may also be (mis)used to legitimise a current regime and to whitewash the past. They may destabilise a fragile security situation, or detract from longer-term state- and institution-building projects. Transitional justice is not a ‘technical’ undertaking: it is highly complex, sensitive and political. Understanding the multiple political – and politicised – objectives of transitional justice initiatives is therefore critical for all actors involved in the process. There is no single model – experience shows that successful initiatives draw on international experience adapted to the context, taking into account local needs, opportunities and constraints (including funding).
Transitional justice initiatives are often designed and set up quickly. Public participation and consultation over the aims, scope, mandate and design of initiatives are nonetheless critical for public buy-in, credibility and legitimacy. Particular efforts may be necessary to ensure that the perspectives and needs of marginalised groups are taken into account. Processes that fail to address the different experiences of women and men and of particular population groups risk reinforcing rather than reducing structural violence, and may contribute to further division or violence in the future.
Public participation and engaging victims in the design and implementation of transitional justice initiatives may, in itself, directly contribute to empowering citizens – recognising that victims are full citizens, and that women and girls, for example, are full members of society.
Transitional justice mechanisms
Experience suggests that the transitional justice mechanisms are more effective together, as part of a holistic approach, than apart.
After conflict, there is often a high demand for perpetrators to be prosecuted by the national authorities, the ICC or an internationalised tribunal. Prosecution through the national courts is believed to be the most effective as trials are more closely connected to the victims and society than when the court is internationalised. There may, however, be significant challenges to domestic prosecutions: the justice system may be weak or widely held as illegitimate, there may be an ongoing conflict and/or links with organised crime. Innovative methods may address specific problems: mobile courts bring the justice system to areas lacking justice infrastructure in DR Congo, and the Rwandan gacaca (1) trials for example, attempted to address the gap between demand for justice and the ability of the justice system to deliver. Some of these challenges may be (partially) overcome with donor support to justice sector reform, technical assistance and international political support.
If the state is unwilling or unable to prosecute, the International Criminal Court may intervene, alongside (not instead of) domestic prosecutions. In each situation, the Court can only prosecute a handful of suspects. As many people may be responsible for systematic abuse, this leads to an ‘impunity gap’. Its distance from the national setting, and international nature may also be seen as foreign justice. In some countries, internationalised tribunals, mixed or hybrid courts have been established, but due to their cost and the existence of the ICC, these models are increasingly rare.
Even with trials underway, broader questions may remain about the role of state institutions in abuse or the social conditions that enabled human rights violations. Truth-seeking endeavours – such as truth commissions – attempt to address these, and other questions. For some, truth commissions may be seen as an alternative to criminal justice. Where the justice system is dysfunctional, a truth commission may be the only feasible form of accountability, for now at least.
There are many forms of truth commission, but in general they are official, temporary bodies that investigate patterns of abuse in the past by engaging directly with victims and/or the population more broadly. Early truth commissions investigated what happened and why (Argentina, El Salvador, Uganda) while some later commissions also emphasised reconciliation (South Africa, Timor-Leste). Some had a greater focus on perpetrators (Ghana, Liberia, South Africa) and others investigated deeper societal factors such as racism and economic discrimination (Peru, Guatemala). Some commissions provided support to prosecutions (Peru) and others have emphasised reparations (Morocco).
Truth commissions face some common challenges. Well-functioning commissions generally have official and public support, trust and buy-in for their work, which is difficult and politically sensitive. Their composition often reflects the societies they serve and the context – past and present – in which they operate. They are usually established with a short timeframe during political transitions. Careful preparation of the commission is therefore critical, as it may have to balance high public expectations with constraints due to its mandate and resources. Broad consultation of at least victims’ groups on the mandate of the commission is generally seen as important. The mandate will address sensitive issues such as the scope, powers and objectives of the commission. A poorly designed or composed truth commission can do harm: in DR Congo, a truth commission was created without consultation in which all the belligerent groups were represented, with no scrutiny of the personal record of the commissioners. It lacked credibility and did not hear a single case – and set a bad precedent for future truth-seeking. In Kenya, the commission lost valuable time and credibility over the controversy surrounding the appointment of the chair.
Reparations programmes for victims help repair the material and moral damages of past abuse, typically through a mix of material and symbolic benefits. Reparations also represent public acknowledgment of the wrongs committed against individuals, and affirm the victims’ rights to redress. Examples include pensions for certain victims of the Pinochet regime in Chile, accompanied by an apology by the president, and an apology by the Sierra Leonean president to the women victims of the conflict.
Designing and implementing reparations programmes may be very sensitive, highly complex and challenging. Defining who is – and is not – a victim of repression or conflict may re-victimise certain victims and increase tension between communities or groups in society. Broad consultation on the design of reparations programmes may help avoid this. The extent to which reparations are gender-sensitive may have a lasting impact on women victims and society more broadly. In Morocco, for example, women are entitled to compensation through the reparations programme, which supplements compensation to take into account the particular abuse women suffered.
Symbolic reparations may lead to frustration and resentment, particularly when communities that have suffered abuse continue to suffer the effects of extreme poverty and the lack of public services and economic development. Financing reparations programmes is a particular challenge in developing countries, and may be a low priority for national governments (e.g. South Africa) and international donors (e.g. Liberia).
Prosecutions may remove individuals from public life, but systemic institutional reform is necessary for longer-term change and the non-repetition of abuse. It may also be a precondition for other transitional justice approaches, removing spoilers within key public institutions that may be able to block justice initiatives.
Vetting – the identification and removal from public office of individuals responsible for abuse, particularly within the security and justice systems – can contribute to broader reform designed to increase the credibility and legitimacy of institutions. In El Salvador, the armed forces and police service were vetted and some limited mechanisms to increase judicial accountability were created. In Bosnia-Herzegovina vetting focused on the police and judiciary. Vetting may also be closely connected to symbolic reparations, such as public apologies issued on behalf of institutions for previous abuse, or changing the names and insignia of security services (Northern Ireland, former Yugoslavia).
In Sub-Saharan Africa, there is increasing use of so-called ‘traditional’ approaches to transitional justice, often in addition to more formal, ‘international’ or ‘Western’ initiatives and may complement and come into tension with them. These vary in objective and form as they draw on and adapt traditional practices. Some become part of the official justice system, others remain more non-governmental. In Rwanda, gacaca courts try some categories of genocide perpetrators. In Uganda, the relationship between the mato oput (2) rites and other transitional justice initiatives is complex. The bashingantahe (3) are part of the transitional process in Burundi.
Civil society organisations and human rights groups may play an important role in the design and implementation of transitional justice initiatives. They may also have specific roles, as human rights monitors (e.g. Afghan Independent Human Rights Commission), in unofficial truth-seeking, and in collecting and documenting evidence of abuse for future endeavours (e.g. Brazil, Northern Ireland, Uruguay, former Yugoslavia).
Transitional justice in context
Transitional justice initiatives are highly sensitive and political. Poorly designed initiatives may reinforce structural violence in a society, or serve only to legitimise the current regime. Despite the short timeframe within which transitional justice is usually undertaken, broad public consultation is key for truly addressing the past. Engaging meaningfully with traditionally marginalised groups is particularly important. Initiatives ‘owned’ by an elite, rather than the broader public, are less likely to credibly contribute to peacebuilding.
The ways in which international actors can usefully engage in transitional justice measures is highly dependent on the context. Understanding the objectives of transitional justice initiatives, the context and the roles and perceptions of different international actors in the preceding conflict and in peacebuilding should therefore shape international involvement. In most places, effective international assistance will be to support inclusive, national processes politically, financially and with appropriate technical assistance. Where transitional justice initiatives are fundamentally flawed or not undertaken in good faith, international actors supportive of justice and peacebuilding agendas should keep their distance.
Dr. Laura Davis writes and consults on transitional justice issues, particularly during peace making and peace building processes. She is also an associate researcher at the University of Ghent, Belgium.
This article was published in GREAT insights Volume 4, Issue 1 (December 2014/January 2015).
Dr. Laura Davis