Transitional Justice at the Crossroads: Which road(s) do we take?

Transitional justice is a politically fraught endeavour, where the conflicts of the past are continued through legal and political wrangling.  TJ raises the questions: who is justice for – victims or local/international community?  What does justice mean – TJ in its broadest sense is concerned with criminal trials, truth and reparations; whereas international criminal justice is focussed on narrow criminal trials. 

The main problem for societies emerging from political violence or authoritarian regimes is the multifaceted nature of conflict and how it affects both individuals and the fabric of society.  Hayner (2001) puts forward the notion that these societies are at a ‘crossroads’ and asks what should be done with the recent history full of traumatised victims and perpetrators; with the fear, the silence, and the denial?  There is a tension between those who are in left with the reins of power and those who were trampled underfoot by previous regimes.  At this ‘crossroads’ the question is put: do you bring the perpetrators to justice and punish them or is it better to forget about what happened and just draw a line under the past?  For Minow (1998) the answer may lie somewhere in between: between vengeance and forgiveness.

Hayner argues that justice is difficult to pursue especially in societies where the peace has been negotiated and there are no clear winners or losers.  This is where the concept of transitional justice comes in.  The United Nations (2004) defines transitional justice as ‘…the full range of processes and mechanisms associated with a society’s attempts to come to terms with the legacy of large scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation’.  This definition has raised expectations for many victims: expectations that have proven difficult to realise.  The aims are highly aspirational and they tend to leave societies with more questions than answers.  Who is actually going to be held to account; to whom is justice actually served; and does reconciliation naturally follow?

The need to include victims in the transitional process has now been recognised as an important aspect of transitional justice and victimology.  Karstedt (2010) notes that today, the presence of victims is acknowledged as a necessary precondition for establishing truth and accountability, and the objective of transitional justice is defined by doing justice to and for the victims.  Victims were ‘seminal’ in the establishment of TJ (Karstedt, 2010).

One of the main problems that victims face is the culture of silence and denial that the people and power structures, which were part of their victimisation, have over them.  For many victims the prominent discourse is that they should just stay silent, bury their vindictive urges, and accept impunity for fear of reigniting the violence.  This utilitarian discourse is concerned with stabilising the fragile transition from violence to peace: the suffering of the few should not outweigh the benefits for the many.

Ad hoc international Tribunals came to the fore following the mass killings in Rwanda and the former Yugoslavia during the 1990s.  They were heralded by proponents as noble attempts to deliver justice to the direct victims of gross human rights violations.  The outcomes have had a mixed reception.  This may be down to the approach taken by the Tribunals themselves. 

The judicial approach could best describe the response to the genocide in Rwanda which occurred during the summer of 1994.  The extent and nature of the genocide was such that it ‘seriously affected the social tissue of Rwandan society’ according to Vandeginste (2003).  To repair this damage a mammoth response would be required.   The international community demanded that the alleged perpetrators be prosecuted.  Orenlichter (1991) speaks to the ‘duty to prosecute’ as being sacrosanct to the rule of law.  In contrast, Mallinder and McEvoy (2012) argue that this ‘duty’ is not clearly defined especially when examining intranational conflicts. 

Nevertheless, the United Nations created the International Criminal Tribunal for Rwanda (ICTR) only a matter of months after the events in the expectation that it could end the ‘cycle of impunity’ by rendering justice and determining guilt for the horrific crimes committed; while also ‘contributing to the process of national reconciliation and to the restoration and maintenance of peace’.

This expectation that any such trial could lead to peace and reconciliation was ambitious.  Vandeginste points to a number of factors that may explain how it failed to live up to these expectations: one being the fact that the process took too long to complete; ‘justice delayed is justice denied’.    The ICTR was also operating in the atmosphere of ongoing gross human rights violations of which it had no mandate to investigate.  This compounded the notion that the ICTR was only interested in justice for the victors of the 1994 period as gross human rights violations before and after this period were not included in the mandate.  Moffett argues that this narrow temporal jurisdiction limited victim recognition.

Furthermore, the ICTR did not take into consideration the local expectations of how justice should be administered:  this was decided by the political elites in the United Nations Security Council.  The Tribunal operated on the basis of the Western style courtrooms with due process at its heart and sought to protect the two party adversarial system.  There was no room for victim-witnesses to give their own personal accounts of suffering; instead the emphasis relied upon the witnesses keeping to the facts as laid out in the charges.  Only the Prosecutor  had the power to decide who would be called to give evidence and, as such, many victims felt excluded. 

When victims are excluded from the process it can undermine the healing effects and as Karstedt (2010) argues justice can only be felt in an abstract way.  Danieli (2006) concurs with this and views these types of trials as a missed opportunity for healing: with survivors receiving little meaning from the process.  Victims are now acknowledged as symbolic stakeholders who participation is vital to the legitimacy of the process. 

The International Criminal Tribunal for Yugoslavia (ICTY) is a further example of the international response to mass atrocity.  Minow argues that the ‘rule of law’ was subverted in some ways by this Tribunal due to the fact that it relied on political actors and developments for its operations, resources, and decisions.  The main problem was that many of the indictments were levelled at political elites who remained in power.  There was therefore no incentive for the warring parties to come to the negotiating table as their guilt was presupposed.  Furthermore, the international response was viewed as a cynical political effort to retain some legitimacy after its inadequate response to the slaughter itself.

Moffett (2014) argues that despite developments in international law, victimology and human rights law, such tribunals did not substantially deliver justice to victims; and that justice for victims is primarily rhetoric used to justify punishment and to legitimise their own existence.  Victims are considered objects, with justice being done on the basis of their suffering, without recognising them as subjects having their own needs and interests.  According to the President of the ICTY, the overseers of both tribunals i.e. the United Nations Security Council, neglected the issue of reparations (which could have addressed many of these needs) thereby hindering the wider goals of the Tribunal in delivering justice to victims.  Moffett concludes that the Tribunals were unable to deliver reparations due to a lack of legal basis in their respective Statutes, capacity, and political will.  Their mandate was to prosecute rather than provide a wider conception of justice to victims.

So what next for the victims?  For many the next step is finding the truth in the expectation that the truth will heal: individually and on the macro societal level.  In the transitional justice paradigm this has come to mean ‘Truth Commissions’.  Hayner defines truth commissions as officially sanctioned top-down temporary bodies designed to investigate patterns of past abuses.  Again like trials they are viewed as collective efforts to deal with past abuses with the aim of possible reconciliation.  While cynically viewing the nomenclature as an Orwellian irony Minow (2002) concedes that truth commissions can expose and document torture, murders and other human rights violations that would otherwise be ignored and denied. 

The South African Truth and Reconciliation Commission (TRC) is an oft-cited example of a response that gave victims a voice through a mass collection of personal testimony.  It was hoped that the TRC would deliver some sort of justice to the victims through an acknowledgement of their credibility and a symbolic recognition of their suffering, which had once been denied by the Apartheid regime.  However, Minow argues that the TRC denied those who sought retributive justice by placing an emphasis on a contrived expectation of forgiveness from the survivors.  The victims were almost ‘forced’ to forgive the perpetrators in the spirit of national reconciliation.  The victims became pawns in the challenging realpolitik of transition.

The truth is not always seen as a noble aim within the politics of transitional societies.   In certain cases, where metaconflict is strong, calls for truth and justice are categorised as weapons.  Taking the case of the transitional process in Northern Ireland, there has been, to date, no concrete agreement on whether a bona fide truth commission could even exist.  According to Lundy and McGovern (2001), the truth itself has been branded as a Republican Trojan Horse by many in the Unionist community: to be used as a stick with which to beat the British state.  However, many victims of state violence view the actions of the British state, on the subject of accountability, as an example of ‘memory politics’: of state power imposing a paradigm of ‘organized forgetting’. Lundy and McGovern point to a lack of political and interpersonal trust, which was inherent during the conflict, as dangerously permeating the transition to peace. 

Furthermore the lack of a master-narrative on the nature of the conflict feeds this distrust.  One community, the unionists, continue to deny any wrongdoing by the state while the other side, the nationalists, feels that their suffering is not recognised or acknowledged.  The politics of memory and truth are highly contested and difficult to deal with.  As a result the demands of realpolitik require that the past is deliberately left untouched. 

However, the reality is that legacy issues continue to seep out of the political vacuum and are only dealt with in, what Bell (2002) calls, a piecemeal fashion.  Lundy (2010) is concerned that such an ad hoc approach has increased the sectarian divide between the two communities and further contributed to the socioeconomic deprivation that plagues certain disadvantaged areas.

Previous attempts to deal with the past in Northern Ireland now sit on shelves gathering dust: waiting to be taken down and rehashed; only to then fall prey to the lack of political will to implement them.  Boilerplate reports such as Bloomfield; Eames/Bradley; Haass/O’Sullivan; and Stormont House await activation.  Procrastination and the interweaving of legacy issues with other intractable problems such as welfare reform have rendered these report and agreements stillborn.  A cynic could easily conclude that this approach suit many of the actors who would rather keep truth and justice on the long finger.

Paradoxically, a more obvious response to injustice in the form of the restorative notion of reparations can also get mired in the political tensions of transitional societies.  By definition reparations are designed to repair that which has been damaged.  These can be symbolic in nature manifested in the form of memorials and commemoration; or material responses through compensation or improved access to health and social services, states Minow.

The challenges facing reparations arise from many quarters.  One being: who gets access and who is denied?  The very definition of victimhood is contested in many transitional societies.  Smyth (2008) points to the political dynamic of Northern Ireland’s negotiated ‘peace’ as an aggravating factor in who are ascribed victim status; and the implications of being denied this status. 

Certain political parties and victims groups have continually attempted to change the current definition of victimhood, as set out by the UK government, to exclude perpetrators of human rights abuses who were also victimised.  The current definition recognises human suffering as the main qualification for victimhood.  The proposed changes would bring in moral responsibility as a disqualification and only the innocent ‘ideal victims’, as Bouris calls them, deserve recognition.  The logical conclusion is that some bereaved families could be excluded from access to reparations due to the actions of their deceased relatives.

According to Minow (1998) the aim of reparations is to help victims move beyond anger and a sense of powerlessness.  Taking away victimhood status and removing access to reparations could compound this: leading to future resentment; further perpetuating the cycle of hatred, from which transitional societies are seeking to escape.

Gready (2014) questions the reach of transitional justice and proposes the notion of transformative justice. While not seeking to dismiss or replace transitional justice there is a focus on radically reforming its politics, locus and priorities.  It entails a shift in focus from the legal to the social and political and from the state and institutions to communities and everyday concerns.  Transformative justice is not the result of a top down imposition of external legal frameworks or institutional templates, but more of a bottom up understanding and analysis of the lives and needs of populations.  Transitional societies could attempt to implement a combination of top down and bottom up approaches to fit their situation and hopefully this will embed long term peace and reconciliation.

It is clear that the available responses offered by what has become known as transitional justice may lack some of the necessary qualities to bring about real reconciliation and lasting peace.  This may not be the fault of the mechanisms themselves per se, as responsibility for applying them lies with those who are left with the reins of power during the transition and beyond.  Dealing with the aftermath of gross human rights violations is a mammoth task for all involved.  These societies need strong and honest leadership.  Leadership, not just in the government, but at all strata of society, including victims and perpetrators, that will carry society with them on the journey to peace. 

Transitional justice is a noble aim which hopes to bring truth, justice, and accountability to victims but it continues to get mired in the political in-fighting that beset such societies.  Transitional societies need to learn from previous attempts and build upon them to suit their own needs in the hope that they can transform into places where peace and reconciliation is achievable and long lasting.