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Transitional Justice

by on May 17, 2017

The following I wrote recently for a course in Transitional Justice for the Sustainable Peace program at the University for Peace.  It is applicable to all societies.  I leave the format as previously written.

Happy reading!
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The field of transitional justice emerged in the late 1980s and early 1990s in response to political transitions in Europe and Latin America, and the name derived from the apparent transitions to democracy (UN, 2008, 1). Ruti Teitel, who coined the term ‘transitional justice’ was able to say “in the United Nations tool box for dealing with post-conflict security issues, transitional justice is now viewed as in important component” (2008, 4)

Transitional justice is designed to be “adapted to often unique conditions of societies undergoing transformation away from a time when human rights abuse may have been a normal state of affairs. In some cases, these transformations will happen suddenly and have obvious and profound consequences. In others, they may take place over a many decades” (UN, 2008, 1). However, acknowledging that transitional justice has been designed for countries emerging from gross human rights abuses, the ideas also apply “globally, from Australia and the United States to Guatemala and South Africa,” where “social justice movements have adapted transitional justice measures in order to gain redress for legacies of systemic injustice” (UN, 2008, 2). The goals in any case “are to promote peace, democracy, and reconciliation” (UN, 2008, 1).

The idea of transitional justice “can also be understood in forward-looking terms: providing a method for the public to recapture lost traditions and institutions;” which may involve “depriving former officials of political and economic influence that they could use to frustrate reform; signaling a commitment to property rights, the market, and democratic institutions.” It also involves “establishing constitutional precedents that may deter future leaders from repeating the abuses of the old regime. … adherents to forward-looking conceptions of justice see transitional justice measures and policy considerations as identical or mutually reinforcing” (Posner, 2004, 766).

Martina Fischer writes that “transitional justice stems from the international human rights movement. At first, it referred to the judicial process of addressing human rights violations committed by dictatorial or repressive regimes” (Fischer, 407). Now, it covers the establishment of tribunals, truth commissions, the cleansing of state administrations, reparations, and political and societal initiatives related to fact-finding, reconciliation, and remembrance (Fischer, 2001, 407). Further, Fischer, among others, have noted “coming to terms with the past is considered a precondition for building peace and future relationships” (Fischer, 2011, 406).

The international human rights movement that Fischer refers to has evolved significantly, especially since the Second World War. The Universal Declaration of Human Rights (UDHR), put forth at the United Nations in 1948, recognizes that “Everyone has the right to life, liberty and security of person” (Art. 3), “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment” (Art. 5), “No one shall be subjected to arbitrary arrest, detention or exile” (Art. 9), and many other standard (by Western legal systems) guarantees of protection under the law.

The UDHR, according to the UN, is the foundation of modern international law. More recently, the International Criminal Court, a long-considered idea, was established in 1998. It’s purpose is to prosecute “persons who committed war crimes, crimes against humanity, and genocide” (Khan, 2016, 242), and to deter such crimes from happening. It is meant as a last resort to prosecute individuals when states are incapable of using domestic legal processes to indict perpetrators.

Formed in 1945,The International Military Tribunal which sat in Nuremberg after the Second World War, defined (Zgonec-Rozej et al, 2010, 51):

  • Crimes against peace as “planning, preparation, and initiation or waging of a war of aggression, or a war in violation of international treaties … or participation in a common plan or conspiracy of any of the foregoing.”
  • War Crimes as “violations of the law or customs of war,” including “murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners or war … killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity.”
  • Crimes against humanity as “namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial, or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.”

Leaders and commanders in many countries, including the powerful, developed, countries that fund the International Criminal Court would do well to take heed of these words – they apply to the rich and powerful as well.

The ICC’s “success or failure can be evaluated by its track record of how successfully it has brought to justice those individuals who were responsible for the brutal attacks” (Khan, 2016, 243). The ICC has focused almost entirely on gross human rights violations in Africa even though violations occur on almost all continents, and this has made the ICC appear to be a tool of the West (Khan, 2016, 246-247). Khan also notes the enforcements issues of the ICC. The court is funded by member states, however, and also depend on states to cooperate and comply with extradition and accountability. It is also clear, according to Khan, that the ICC “has laid the basis for an effective and successful judicial body,” although the success will depend on the Court’s ability to overcome perceived biases and execute meaningful prosecutions.

As long as the International Criminal Court (and other international institutions such as the United Nations) are funded by economically-strong, developed countries there will be an enforcement problem where the leaders of rich and powerful countries will not be held accountable. I doubt that the ICC is intentionally a tool of the West, but it becomes a tool of the powerful while it is funded by the powerful. To have the court funded by individuals would also be improper. Johan Galtung, doyen of the peace and conflict resolution field, says it is “necessary to transform the relationships, interests, discourses, and the very constitution of society” (Fischer, 2011, 417), which includes transforming society away from a model of dependent economics.

While the idea of an international Criminal Court is not new (Khan, 2016; Zgonec-Rozej et al, 2010), it was preceded in creation by ad hoc Criminal Tribunals in the Former Yugoslavia (ICTY), and Rwanda (ICTR), in the early 1990s. The International Tribunal of the Former Yugoslavia has indicted 161 people, with 83 sentenced; the International Tribunal of Rwanda has indicted 93 people, and sentenced 62. Whether this is success depends on results desired.

Some countries transitioning away from injustices choose truth and reconciliation commissions, which are intended to bring a fragmented society together to a joint understanding of the past and the future, rather than punishment for the past.

Alexander Boraine, a former member of the South Africa Truth and Reconciliation Commission and a founder of the International Center for Transitional Justice (ICTJ), advocates a holistic approach of transitional justice including (Fischer, 2011, 411):

    • Accountability, that recognizes “no society can claim to be free or democratic without strict adherence to the rule of law,” and that it is important to go beyond criminal justice and include activities that focus on “documenting the truth about the past”
    • Truth recovery, which includes 1) objective and forensic truth, 2) narrative truth, 3) social or truth based on dialogue, 4) healing or restorative truth.
    • Reparations are important, as they are among “the few efforts taken directly on behalf of victims”
    • Institutional reforms “form a prerequisite for truth and reconciliation,” Boraine believes that “institutions directly responsible for the breakdown of a state, repression, or human right violations” need to be recognized and accounted for
    • Reconciliation “must be accompanied by acknowledgment of the past, the acceptance of responsibly and steps toward (re-)buildng trust”

It is generally agreed “that reconciliation describes a process rather than an end state or outcome. … It has been defined as a process through which a society moves from a divided past to a shared future.” (Fischer, 2011, 415)

“The need for reconciliation is emphasized in particular for societies that have gone through a process of ethnopolitical conflict, as these are marked by a loss of trust, intergenerational transmission of trauma and grievances, negative interdependence, and polarization. Given that antagonists live in close proximity, not addressing these legacies means risking that they will form the causes of new spirals of violence. Reconciliation is regarded as being necessary to prevent the desire for revenge” (Fischer, 2011, 415).

We know, of course, in peace studies, that is is “necessary to alter the various manifestations of conflict by addressing the root causes.” It is “necessary to transform the relationships, interests, discourses, and the very constitution of society,” as Galtung said (Fischer, 2011, 417).

According to Posner “transitional justice means something different from the successful accomplishment of a political or economic transition: it means a political and economic transition that is consistent with liberal and democratic commitments.” Such a shift in regime change “should respect rights and involve a minimum of violence and instability. People should either retain their property rights or be compensated for their losses. Officials and supporters of the old regime should not be punished for legal acts. They should not be mistreated, humiliated, or denied trials. Instead of being treated as scapegoats, they should be invited to participate as equal citizens in the new regime.” Supporters of the new regime should not profit from the transition or manipulate it for personal ends. However, says Posner, “these elements of transitional justice reflect ideals that remain unrealized even in a consolidated liberal democracy such as the United States” (Posner, 2004, 768).

Transitional Justice is designed to look back so that we may move forward. It is important that societies, especially those in latent conflict and those coming out of violent conflict, recognize past wrongs and as a society decide how to transition into the future. Recognizing that without acknowledging and knowing the past we are doomed to repeat it, a society may choose truth and reconciliation, which involves a society-level dialogue and a commitment to work together for the future, or a tribunal which indicts and perhaps prosecutes agents of the previous regime. It is possible to combine the two, in which society confronts itself while holding the most culpable of vile acts accountable. Every society, culture, and country is different, and each society and country should determine what method works best for its situation.

Bibliography and References

Fisher, M. (2011) Transitional Justice and Reconciliation: Theory and Practice. Advancing Conflict Transformation. Barbara Budrich Publishers.

http://unictr.unmict.org/en/tribunal

http://www.icty.org/en/about

Khan, M. (2016) International Criminal Court (ICC): An Analysis of its Successes and Failures and Challenges Faced by the ICC Tribunals for War Crimes. International Criminal Law Review

Posner, Eric A., and Adrian Vermeule. “Transitional Justice as Ordinary Justice.” Harvard Law Review, vol. 117, no. 3, 2004, pp. 761–825., http://www.jstor.org/stable/4093461.

United Nations: (2008) What is Transitional Justice? A Backgrounder. NY

http://www.un.org/en/sections/universal-declaration/foundation-international-human-rights-law/index.html

http://www.un.org/en/universal-declaration-human-rights/

Teitel, R. (2008) Transitional Justice Globalized, International Journal of Transitional Justice

Zgonec-Rožej et al., (2010) Manual of International Criminal Law. International Bar Association Human Rights Institute (IBAHRI) Chapter 2 – Historical Development and the Establishment of the International Courts and Tribunals.

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