ULI451U-CONFLICT RESOLUTION
Chapter 8: Transitional Justice and Peacebuilding
Introduction
The question of how to deal with the past has legal, ethical, and political dimensions and creates serious tensions. In responding to this question, transitional justice offers a set of judicial and non-judicial mechanisms for transitional and post-conflict societies to address past human rights violations. Transitional justice mechanisms include criminal prosecutions, truth commissions, reparations, institutional reforms, vetting and lustration, and memorials. The issue will be dealt under four sections:
1. 1.conceptual and historical development of transitional justice, 2. ‘peace versus justice debate’ examination of different approaches to the question of justice following state repression or armed conflicts. 3. 3.the main transitional justice mechanisms 4. contribution of transitional justice mechanisms to post-conflict peacebuilding.
Transitional Justice
Defining Transitional Justice
The concept of transitional justice first appeared in the course of the ‘third wave of democratization’ in the late 1980s and the early 1990s. Transitional justice appears as a part of major political and social transformations and aims at creating a democratic and peaceful polity. Therefore, it enables societies in transition from war or authoritarianism to come to terms with their violent past. In other words, transitional justice focuses on how societies can address legacies of past human right crimes, mass atrocities, genocide, or civil wars. In order to prevent future abuses, it provides societies with a combination of judicial and nonjudicial mechanisms such as trials, truth commissions, reparations, memorials, and institutional reforms.
Although the modern origins of transitional justice can be traced to after World War I, Phase I of transitional justice began in 1945 with the Allied-run Nuremberg and Tokyo trials at the end of World War II. Phase II of transitional justice refers to the period from the late 1980s to the late 1990s, marking the revival of transitional justice. This phase began with the third wave of democratization and accelerated with the end of the Cold War. Transitional justice was largely associated with democratic transitions and was mainly concerned with the legacy of former repressive regimes.
Phase III of transitional justice refers to the present period since the end of the 20th century. As such, the third phase is characterized by the normalization and expansion of transitional justice at the global scale. Political fragmentation, weak states, enduring conflicts and small wars that characterize contemporary politics have also contributed to its normalization. The most striking development is the increasing association of transitional justice with peacebuilding. Transitional justice is intended to fulfil several major aims that can help societies address
their violent past, including the recognition of the dignity of individuals, the redress and acknowledgment of violations, and the aim to prevent them from happening again.
The Main Aims of Transitional Justice
Transitional justice is intended to fulfil a few key aims that can help societies address their violent past. However, its aims vary depending on the context in which they are applied:
• “Building accountable institutions and restoring confidence in them • Making access to justice a reality for the most vulnerable in society in the aftermath of violations • Ensuring that women and marginalized groups play an effective role in the pursuit of a just society • Respect for the rule of law • Facilitating peace processes and fostering durable resolution of conflicts • Establishing a basis to address the underlying causes of conflict and marginalization • Advancing the cause of reconciliation”
Six fundamental goals of transitional justice:
• First, it ensures accountability for perpetrators responsible for past abuses and crimes either in the form of criminal or noncriminal justice. • Second, it aims at establishing the truth about the past. Often the truth about human rights abuses is denied or distorted by repressive regimes. those who were forcibly disappeared. It is also necessary to publicly reveal what happened under the prior regime. • Third, it can foster reconciliation among conflicting parties, thus creating peaceful relations and helping former perpetrators or combatants integrate into society. • Fourth, it can provide a forum for victims to be heard and ensure the acknowledgement of past injustices. • Fifth, it can contribute to developing financial and symbolic reparations programs for victims, survivors, and their families. • Sixth, transitional justice measures also trigger legal and institutional reforms, such as civilian oversight of the military, new rule for the judiciary, and electoral or land reforms that can foster the consolidation of peace and democracy.
Peace vs. Justice Debate: Approaches to Justice in the Wake of Conflicts
Societies emerging either from war or from an authoritarian rule face a basic dilemma arising from a potential conflict between peace and justice. On the one hand, victims, survivors, their families, international organizations and NGOs demand from new governments to prosecute the perpetrators of war crimes and other gross
human rights abuses. On the other hand, since post- conflict and transitional processes are fragile or perpetrators retain power, seeking accountability for their crimes may generate destabilizing effects on peace and the consolidation of democracy. Arising from this tension between peace and justice, there are various approaches to the question of justice in peacebuilding.
Maximalist Approach to Justice
The maximalist approach to justice advocates the legal and criminal form of accountability for past human rights abuses. Perpetrators should be punished in order to deter future crimes, break the cycle of violence, and restore the rule of law. Impunity for those responsible for serious crimes would otherwise undermine peace and democracy. Those advocating prosecution for perpetrators of past crimes rely on moral, political and legal reasons.
Minimalist Approach to Justice
The minimalist approach doubts that criminal justice, particularly trials, can lead to more violence and instability and jeopardize fragile peacebuilding processes. It considers amnesty as the best way to achieve peace because post-conflict and transitional societies involve vulnerabilities.
Moderate Approach to Justice
The moderate approach offers a middle ground between the maximalist focus on retributive justice and the minimalist focus on full impunity and endorses primarily truth commissions as an alternative way of accountability.
Holistic Approach to Justice
Since the early 2000s, there has been growing consensus in the field of transitional justice that a holistic approach to address past human rights abuses should be adopted. The holistic approach aims to overcome primarily the tension between retributive justice and restorative justice, more specifically between truth commissions and trials. According to the holistic approach, no single transitional justice measure can address the needs and problems of transitional and post-conflict societies.
Transitional Justice Mechanisms
Transitional justice offers a broad array of judicial and nonjudicial mechanisms in addressing past human rights violations following armed conflicts or state repression. Transitional justice mechanisms include criminal prosecutions, truth commissions, reparations, vetting and lustration, institutional reforms, and memorials. These mechanisms can be categorized based on the retributive conception or restorative conception of justice. Retributive justice focuses on perpetrators and seeks to ensure criminal justice for their past abuses mainly through prosecution and punishment. Transitional justice mechanisms based on the retributive conception of justice, therefore, include criminal prosecutions such as trials or tribunals and vetting policies. Restorative justice, on the other hand, is victim-centered and seeks to restore the
dignity of victims, reestablish relations between victims and perpetrators, and reintegrate the latter into the society. Transitional justice mechanisms based on the restorative understanding of justice are truth commissions, reparation programs, institutional reforms, and memorials.
Criminal Prosecutions
Trials represent one of the principal mechanisms of transitional justice. The criminal prosecution of perpetrators responsible for gross human rights violations is a significant way in dealing with the legacy of an armed conflict or state repression.
Trials may take place in three distinct courts of law based on the degree of the international involvement:
1. Domestic Courts: Criminal prosecutions for serious human rights abuses such as genocide, war crimes, and crimes against humanity can be held through domestic courts without any involvement of international actors. However, domestic prosecutions in countries emerging from war or authoritarian regimes do not always prove to be effective due to the lack of political will and legal institutional capacity to address such crimes. 2. International Courts: After the end of the Cold War, the most notable development was the creation of international courts in order to prosecute crimes against humanity, genocide, and war crimes. The first type refers to ad hoc international criminal tribunals created in the 1990s to try crimes committed during the ethnic conflicts in Yugoslavia and Rwanda. A second ad hoc international tribunal in Arusha, Tanzania, was established by the UN in 1994 when 800.000 Rwandans were massacred in a genocide. The International Criminal Tribunal for Rwanda (ICTR) was created to prosecute individuals responsible for genocide and other grave violations of international humanitarian law committed in the territory of Rwanda and nearby states between January and December 1994. One of the most significant contributions of the ad hoc tribunals, is that they set a precedent for the establishment of the second type of international court, a permanent International Criminal Court (ICC) with the Rome Statute in 1998. The ICC came into force on 1 July 2002 upon ratification by 60 signatory states. Sitting in The Hague, Netherlands, as of June 2020, 123 countries are state parties to the Rome Statute of the ICC. The creation of a permanent international judicial body for investigating and prosecuting international crimes is undoubtedly a landmark development in terms of accountability for human rights violations. Despite its 123 members, the world’s largest and most powerful countries such as China, India, Russia, and the United States are still outside of it.
3. Hybrid Courts: In response to the shortcomings and remoteness of international courts, an innovative development was the creation of hybrid or ‘internationalized’ courts. Hybrid courts refer to those that combine a mix of both international and national law and personnel. Hybrid courts were established in many post-conflict countries including Bosnia, Kosovo, Sierra Leone, East Timor, Cambodia, Iraq, and Lebanon with differing degrees of international involvement. Several problems also hindered the efforts of hybrid courts, suffered as they did from local resistance, lack of cooperation with local actors, and difficulties in terms of organization, funding, and staffing.
Truth Commissions
Based on the understanding of restorative justice, truth commissions form one of the most predominant and widely applied mechanisms of transitional justice. A truth commission refers to a temporary and non-judicial official body established to investigate past human rights violations. A truth commission is mandated to produce a final report based on the statements of victims and witnesses and serves as an official acknowledgement of past human rights abuses that were often denied or distorted by former regimes.
Truth commissions share the following characteristics:
1. Truth commissions only focus on past events rather than ongoing ones. 2. They investigate a pattern of events that occurred over a period of time. 3. They engage directly and broadly with the affected population and gather information about their experiences. 4. They are temporary bodies that aim to conclude their work with a final report. 5. They are officially authorized or empowered by the state under review.
Truth commissions have been created under various names. Although the first was established in Uganda in 1974, early truth commissions were largely associated with the political transitions in Latin America from the late 1980s to the early 1990s. After the end of the apartheid regime, the creation of the South African Truth and Reconciliation Commission (TRC) by parliament in 1995 was a turning point in the history of truth commissions.
The South African TRC introduced two new features into the practice of truth-telling:
1. It is institutional and involves quasi-legal powers, including granting amnesty, the scope of its mandate, transparency, and publicity. 2. It linked the practice of truth telling with reconciliation and healing.
More importantly, with the South African experience, truth commissions have come to be seen as the main mechanism of restorative justice. In the early 2000s, a consensus emerged that truth commissions have important psychological, political, and legal values, and seeking truth itself has become a form of justice. Truth commissions have become a mechanism of transitional justice applied not only to the context of democratic transitions but also to conflict resolution processes.
Since its inception in 1974, more than fifty truth commissions have been established in different parts of the world. Various functions and roles have been attributed to them in transitional and post-conflict settings. As a rule, they primarily fulfil fact-finding functions.
Reparations
Under international law, states have a legal obligation to provide reparation to victims of gross human rights abuses. The issue of reparations emerges as an effective way to address the needs and demands for redress of the victims who suffered from the harm caused by the abuses committed under previous authoritarian regimes or during armed conflict.
Reparations for victims of human rights violations serve several functions: they aim to address the harm victims have suffered and acknowledge wrongdoing. They serve to recognize the state’s legal obligation to repair the damage caused by abuses.
Designing reparation programs is a complex and politically delicate process. There are moral, financial, and political difficulties. The most central issue in formulating reparations is the definition of victimhood. Reparation programs should be designed with the participation of victims and should address their ongoing needs.
Institutional Reform
Institutional reform is an integral component of transitional justice. In authoritarian regimes and armed conflicts, state institutions—particularly the military, police and judiciary—are generally instruments of systemic human rights abuses and violence. In responding to mass atrocities, it is necessary to fundamentally change or abolish such institutions associated with past human rights violations.
Institutional reform includes the following measures, which are also the main components of post-conflict peacebuilding:
• Vetting • Structural reform • Creating oversight bodies • Transforming legal frameworks • Disarmament, demobilization, and reintegration • Education
Vetting and Lustration
Vetting and lustration are other important measures of transitional justice in screening out public officials associated with past human rights abuses. These terms refer to official policies to remove individuals responsible for abuses from their position in state institutions, such as the government or military, or to ban them from holding these positions in the future. Although the terms ‘vetting and lustration’ are often used interchangeably, they are different in scope and application. Lustration refers to “the broad set of parliamentary laws that restrict members and collaborators of former repressive regimes from holding a range of public offices, state management positions, or other jobs with strong public influence (such as in the media or academia) after the collapse of the authoritarian regime”. Lustration policies target individuals, including elected or nominated public officials, police and military officers, academic staff, judges, prosecutors, and people working in the banking sector or in the media.
Vetting, on the other hand, refers to official processes for assessing the integrity of an individual to determine his or her suitability for public employment. Integrity is defined as “a person’s adherence to relevant standards of human rights and professional conduct, including her or his financial propriety.
Vetting and lustration processes thus seek to restore civic trust, legitimize public institutions, and disable structures engaged in serious abuses.
Memorials
Constructing memorials to come to terms with the past following state repression or armed conflicts has recently emerged as an important tool of transitional justice. Memorialization is an umbrella concept that encompasses a set of processes to remember and commemorate.
Memorials serve various purposes, including providing a site for mourning and remembering, ensuring accountability for perpetrators of human rights violations, restoring the dignity of victims, and contributing to peace and reconciliation.
Contributions of Transitional Justice to Peacebuilding
Transitional justice and peacebuilding intersect in a number of ways. More importantly, it is suggested that transitional justice measures can contribute to peacebuilding efforts in several ways:
Transitional justice measures;
1. can greatly contribute to the examination of the root causes of the conflict as well as its nature and effects and thus help to develop an efficient post-conflict peacebuilding strategy. 2. can contribute to the rebuilding of state institutions damaged by conflict.
3. can foster trust among individuals and restore the trust of citizens in state institutions 4. can help address and reduce the sense of anger and grievances among victims that might otherwise cause a return to conflict. 5. the promotion of the rule of law is one of the key elements of post-conflict peacebuilding. 6. disarmament, demobilization and reintegration (DDR) programs form one of the essential components of post-conflict peacebuilding. 7. security sector reform (SSR) is also defined as an essential component of the peacebuilding process.
Case Study: The South African Truth and Reconciliation Commission
The apartheid regime was officially installed in South Africa with the arrival of the racist Afrikaner party, the National Party (NP), to power in 1948. Based on white supremacy, the apartheid regime was a political and legal system that promoted racial segregation against the majority of non-white citizens in South Africa. Under apartheid, the ruling NP enacted laws that excluded non- whites from most sectors of economic, political, and social life. This included a ban of marriages or sexual relationships between whites and non-whites, territorial segregation, and the separation of public facilities such as restaurants, hospitals, and schools for whites and non- whites.
The armed resistance as well as political violence and repression continued to increase in South Africa over the 1970s and 1980s.
After a series of peace negotiations between the government and anti-apartheid movement led by the ANC, a peace settlement was finally reached, and an interim constitution was adopted in November 1993.
Eventually, the first non-racial elections were held in South Africa in April 1994.
During apartheid, South Africa suffered gross human rights violations, including massacres, killings, torture, the lengthy imprisonment of activists, as well as severe economic and social discrimination against non-white citizens.
Following significant input from civil society and international experts, in mid-1995 the South African parliament adopted the Promotion of National Unity and Reconciliation Act that created the Truth and Reconciliation Commission (TRC).
The South African TRC officially began its operation in December 1995 and held its first public hearing in April 1996.
The South African experience has also promoted the idea that healing and reconciliation are only possible if past wrongdoings are revealed and acknowledged.