Transitional justice—time for a re-think

Stephen Morrison- EFE

Congolese woman carrying wood to cook the family meal walks past French soldiers on patrol in the town of Bunia in June 2003 during the Operation Artemis.

What would justice look like in the conflicts in Syria, the Democratic Republic of Congo (DRC), Iraq, Yemen, and Somalia? What would we expect it to achieve? For more than two decades, the field of transitional justice has sought to answer such questions. Transitional justice is generally understood as a package of measures including criminal prosecutions, truth commissions, reparations for victims and reform of abusive institutions. But the circumstances in which these measures might succeed have little to do with the countries mentioned above.  

We need to re-think expectations about justice in conflicts. Those involved in peace processes should ensure that justice provides a tangible benefit to victims, and establishes the basis for a meaningful notion of reconciliation. The objective should not be the transformation of society over coming decades, but stabilization and liberation from conflict in the short and medium term.

Transitional justice as understood today emerged in the 1980s and 1990s with trail-blazing examples in Argentina, Chile and South Africa. By the new millennium two things had happened. Traditional justice had promised a measure of justice while not risking stability – hence the absence of criminal prosecutions in Chile and South Africa. But just as South Africa was making its “truth for amnesty” offer, 120 states were signing up to the International Criminal Court (ICC). States who joined the ICC were in effect saying no to any similar deal in the future, as their membership obliged them to prosecute international crimes (or the ICC would do so). The establishment of the ICC was the culmination of a long “struggle against impunity”. Thus, today transitional justice is understood as a package including prosecutions, not as an alternative to them.

Secondly times changed: the very circumstances for which transitional justice was designed were growing ever rarer. The practice of transitional justice emerged to answer the question of what new democratic governments should do about the abuses of previously repressive regimes. But by the year 2000, the post-Cold War wave of democratic transitions had largely come to an end.

The same measures that were designed to address crimes of repressive regimes in countries with relatively strong institutions, were transferred to very different circumstances where almost none of the same characteristics were present. For example, the Sun City Agreement of 2003 to end the conflict in the DRC proposed transitional justice measures similar to the South African package, with little appreciation for the differences between the two countries.

More recently the failed 2015 Addis Ababa agreement to end the conflict in South Sudan, proposed the whole transitional justice toolkit with little attempt to ask beforehand what could reasonably be achieved.

Transitional justice was conceived to help restore the rule of law. This suggests that the rule of law already had some roots or resonance in the country in the relatively recent past. That is not true for many if not most of the countries today where transitional justice measures are being discussed. And it makes a big difference.

The insistence on this approach—offering the same toolkit of mechanisms regardless of local realities—has costs. It frequently promises something that cannot be delivered. Empty promises to people emerging from conflict about rights, justice and reconciliation make it immeasurably harder to convince them later that these things have any value. It leaves the field open for those who would discredit the same ideas.

In seriously war-torn societies we need to frame the justice project as something tangible, moving from the abstract to the concrete more quickly and more convincingly. It means taking a genuinely victim-centered approach to prioritize the issues that will make a real difference in the short to medium term. This means moving away from toolkits and looking carefully at each situation. So, for example, the wars mentioned above involve massive dislocation and destruction, but frequently insufficient focus is put into restoring housing, land and property rights. Yet it is doubtful that there is a more direct and concrete way to demonstrate a government working fairly for the rights of its people.

"In seriously war-torn societies we need to frame the justice project as something tangible, moving from the abstract to the concrete more quickly and more convincingly". 

The field of transitional justice focuses on accountability. But justice is more than establishing blame. We have to be able to vindicate rights even where criminal responsibility cannot be established, or not yet. In doing so we can build a basis to believe in rights as the pathways to justice and respect. People need to see that rights make a real difference. Offers of symbolic justice and the promise only of a long-term struggle to achieve progress will not suffice.

In its early days, transitional justice focused a good deal on reconciliation. It is a contentious notion—and difficult to achieve—which has led to it being talked about much less. But we need to address the processes of dehumanization that have occurred in conflict and demonstrate that citizenship creates a level playing field regardless of creed, gender or colour. Reconciliation has to be understood as rights-based equality, not an alternative to it. Without prompt progress on these issues in places like Syria, Iraq and Yemen, talk of rights will be seen as fantasies at best, deceit at worst.

A new program at the European Institute of Peace aims to promote a refreshed understanding of what justice can contribute practically to peacemaking and peace building efforts. We see four ideas that can help: first, to see justice in conflict and post conflict contexts as a means of providing a rights-based, tangible benefit for victims; second, that mediators and parties adopt a constructive attitude to making such benefits integral to settlements; third, to stop assuming the transitional justice toolkit is always well-suited to the context; and fourth, to embrace a notion of justice that is broader than accountability.

Ending war is hard; achieving enduring peace is much harder still. The people of Syria, Iraq, Libya, Yemen, Myanmar, Somalia and the DRC are much more likely to put their trust in rights and justice if they see that it makes a difference to their lives—if they see that it provides a reason for investing in peace.