Download Transitional Justice: A Balanced Approach An Essay in answer to

Transitional Justice: A Balanced Approach
An Essay in answer to the questions:
What types of challenges do outside actors—whether states, coalitions of states or international
institutions—most often face in attempting to strike a reasonable balance between punitive and
reconciliatory measures in the nation/state-building processes that have become the rule rather
than the exception following inter- and intra-state conflicts in the post-Cold War era?
What division of labor among states, international institutions and non-governmental
organizations is likely to prove most effective in meeting such challenges in the future? Explain
why.
By: Nazanin Afshin-Jam
Professor: Dr. Robert Pauly
Course: Conflict Resolution and Post-Conflict
Reconstruction in the International System
School: Norwich University
Date: April 24, 2011
INTRODUCTION
The Cold War ended and “the bipolar structure of the world disappeared” which signified
the cooling of tension between the United States and the Soviet Union (Kaufman, Parker, Howell
& Doty 347). As a result these polar opposites no longer needed their satellite partners. This left
many partner states vulnerable with power vacuums to fill. Past grievances between various
factions that were dormant were ignited once again including rivalling tribes competing for
central state power after colonial entities departed (Bercovitch & Jackson 4). By this time, while
there were still inter-state wars, intra-state conflicts dominated the international stage. The post
Cold war period was marked with increasingly weak states on the verge of collapse. The need for
nation and state building was apparent to help people ground long term peace, stability and
growth. This often meant the need for foreign help including from states, international
institutions and nongovernmental organizations. In fact help from outside actors in nation and
state building became the norm rather than the exception. We define “nation building” in the
socialised sense of helping build a common identity among groups with disparate culture
characteristics including race, ethnicity, tribe and religion; and “state building” in the sense of
developing stronger institutions (Pauly 1). The major pillars of state building include promoting
economic development, capacity building at the political level, fostering a stronger military to
ensure the security of the people and concentrating on judicial matters including transitional
justice. As Alex Borraine, President of the International Centre for Transitional Justice (ICTJ)
has said “Peacebuilding without justice is only building” (Winterbotham 7). Justice is a crucial
factor in nation building to not only apprehend those who may pose a danger to society but also
for the psyche of the population to address or shed past wrongs and atrocities, heal and move
forward. Sometimes this means prosecuting members of the old regime who had committed
grave human rights abuses; and sometimes it means forgiveness. A society that accepts shared
responsibility as a collective in violence and other abuses during a given period is in a better
position to move in a renewed or strengthened direction towards democracy because of a shared
sense of identity. It is therefore important after a conflict or regime change has taken place, for
states to choose what kind of transitional justice system they want. They must decide whether to
employ punitive and retributive forms of justice like domestic or international war crimes
tribunals or reconciliatory methods like Truth Commissions, reparations programs or
employment of amnesty laws, or even a combination of both. States, like South Africa, do not
always have a choice due to political deals made in negotiations between the outgoing regime
and incumbent powers. The key, as will be determined, is finding the right balance. Determining
this system and finding that balance comes with certain challenges especially when outside
actors are involved. The state and aiding parties need to contemplate various factors including
how much funds and time is available to them for this process? How much outside help is
needed, if any? What is the goal for the outcome?
Since the end of the Cold War after more conflicts have taken place, it has been the norm
for outside actors to get involved in nation and state building. This essay will determine what
types of challenges they most often face in attempting to help with transitional justice, and what
is the right balance of division of labour among states, international institutions and nongovernmental organizations most effective in meeting such challenges in the future. To facilitate
this process, challenges will be addressed in two sections, challenges in the establishment of
truth and reconciliation commissions; and challenges through criminal prosecutions such as trials
and tribunals.
CHALLENGES
One of the first challenges that states and outside actors face is the determination of
which method of transitional justice to chose. As each country and transition to democracy is
different, they must determine what key aims are important for their particular state and society.
Is it halting human rights abuses, discovering the truth, providing a platform for victims to speak
their stories to heal, providing them reparations, identifying and trying perpetrators for their
wrongdoings, imposing sanctions, or is the aim broader goals of strengthening institutions, the
rule of law and enhancing peace through national reconciliation?
They must determine what is feasible while contemplating what will satisfy the most
amount of people. Tribunals often are more costly due to the launching of investigations,
compiling evidence, and having long ongoing trials. States can be constrained by lack of funds to
conduct a proper war crimes tribunal. The court of the International Criminal Tribunal for the
former Yugoslavia started in 2003 and is ongoing. The ICTY’s annual budget is “now upwards
of $310 million and it employs more than 1,100 people from 82 countries” (Eisikovits). Not all
states have this capacity, and not all outside actors are willing or able to foot the bill.
Once it has been determined what goals are important and how much can be allocated for
transitional justice, naturally not all parties will be happy with the decision. Whichever action is
chosen whether to lean more towards punishment and retribution or more towards leniency and
reconciliation will be met with criticism from a section of the population. This creates
resentment as was the case in South Africa. In South Africa the problem was not related to funds
per se but part of the negotiations to the transition to a democratic state from apartheid was the
setting up of a truth commission where perpetrators would receive amnesty in exchange for truth.
The question that must be answered is what types of challenges must states and outside actors
face when presenting the population with a Truth Commission?
TRUTH COMMISSIONS
Truth and Reconciliation Commissions have become popular methods of transition since
they were developed in 1974 and popularized in Latin America in the 1980s (Tepperman 129).
In fact more than 30 truth commissions have been set up since inception and each one comes
with its sets of challenges (Humphrey 176). “Truth commissions are tools that traumatized
countries use to set the historical record straight. The commissions allow newly democratic
nations to investigate the crimes of the past, overturning the lies told by previous regimes to
cover up their abuses” (Tepperman 129). Their role is to discover what happened to whom and
why (Tepperman 130). Truth commissions unlike regular trials focus on victims as “the centrepiece of truth production and the most credible and authoritative source for empathetic
witnessing” (Humphrey 174). Their role is not to instigate punishment or retribution but rather
concentrate on reconciliation (Tepperman 130). For this very reason, a segment of the
population is left dissatisfied and angry.
Such critics believe truth commissions alone are not enough and believe the ‘whole truth’
is not presented due to the “tactics and techniques of the negotiations employed by those who
gave evidence” (Stanley 527). Perpetrators do not fully expose the extent of the atrocities they
have committed or they do not testify at all. In South Africa, victims of apartheid were angry that
while the deal was ‘truth in exchange for amnesty’; perpetrators who chose not to testify faced
little consequence. The victims were grieved and felt like justice had not taken place because few
were prosecuted and punished. They believe truth commissions shortchange victims and
perpetrators benefit by being set free with impunity (Tepperman 142). Because of the fact that in
truth commissions names of persecutors are not permitted to be released since the venue is not
meant to be a punitive court for legal retribution purposes, critics say that “commissions only
soak up the attention and resources that should be devoted to criminal prosecutions” (Tepperman
131).
Not everyone in South Africa for example approved reconciliation as strongly as the
leader of the ANC and new post-apartheid President Nelson Mandela and Archbishop Desmond
Tutu who lead the TRC. Many “demanded regular trials for the generals and foot soldiers of
apartheid” including the widow of Stephen Biko a black right advocate murdered during
apartheid (Tepperman 133). She tried to file suit in a constitutional court claiming truth
commissions as “unjust” (Tepperman 134). She was not the only one. After the commissions
were finished and the public was polled, two thirds of “South Africans felt the commissions’
revelations had only made them angrier and contributed to a worsening of race relations”
(Tepperman 135). Those inside the state and outside actors have to monitor levels of discontent
and ensure that there is some measure of success so that flames of anger do not reignite into fires
of conflict and instability.
If truth commissions are decided upon, the population must feel at the very least that their
stories are being heard. The reality is that truth commissions have limited time frames and
resources which means that not everyone’s story can be heard. For example in the South African
Truth Commission, even though there was “21,000 victim statements and more than 7,000
amnesty applications” thousands were not heard (Pauly 5) (Stanley 531). According to Michael
Humphrey “less than 10% of the victim submissions actually got to present oral testimonies
before the Committee hearings” (Humphrey 178). This at times created resentment and
animosity by those who could not present their testimony. For those that did testify according to
a study done by Erika and Jay Vora “several participants voiced concern that the TRC opened up
old wounds and that it brought out anger” and revenge because there was “not proper support for
healing” (Vora and Vora 314, 318).
To help with some of the wounds reparations were offered to them. While some appreciated
the compensation, others felt insulted or felt that it was shameful. They felt they were being paid
“blood money” in exchange for forgiveness and it was a form of “selling out” (Humphrey 181).
Another problem around compensation is the fact that not all those promised reparations ever got
their share. Recommendations listed in the report after the end of a truth and reconciliation
commission, are not always followed through. For example in Guatemala, according to Jonathan
Tepperman “virtually none of its recommendations have been adopted” and the violence
continues to rise in the country (Tepperman 139). States and outside actors that commit to the
launch of a truth commission must be able to ensure that there are enough funds to carry out the
project fully and make the necessary reparations, otherwise they face the challenge of continued
disunity at the societal level and conflict.
Human rights activists have even criticized truth commissions as being passé and useful only
in a time when it was legally impossible to try individuals and groups for violations of crimes
against humanity, because international human rights trials were nonexistent and domestic ones
were rare, however they say with the existence now of the International Criminal Court (ICC)
and similar tribunals, they are unnecessary and wrong. The next question that must be addressed
is what are the challenges when it comes to conducting trials and tribunals as the form of
transitional justice?
TRIALS AND TRIBUNALS
For states whose focus in transitional justice is to prosecute those implicated in grave
human rights abuses, trials and tribunals are the best approaches. With any form of transitional
justice come hurdles and challenges. The Nuremberg trials set an important precedence after the
atrocities committed in the Holocaust during WWII under Nazi Germany. This inspired
subsequent tribunals such as the ICTY, the International Criminal Tribunal for Rwanda (ICTR)
and the most significant and important being the establishment of the International Criminal
Court (ICC) in The Hague after the signing of the Rome Treaty in 1998. This was a permanent
court set up with jurisdiction over the most serious human rights crimes including genocide and
crimes against humanity. The fact that the ICC has been successful in bringing to justice certain
high profile perpetrators and the fact that “ICC officials have claimed that their real time
involvement has increased deterrence” has put the ICC very much in demand.
THE INTERNATIONAL CRIMINAL COURT
One of the major problems is that the ICC cannot take on all cases and it is quite limited
in what it can do. It is a large, bureaucratic and highly politicized court system that can only
take on a handful of cases. It has limitations in terms of not having universal jurisdiction. The
nationals of the state must voluntarily consent to the jurisdiction (Ku and Diehl 239). For
example, the ICC issued arrest warrants for those implicated in crimes against humanity and war
crimes in Sudan including President Omar al-Bashir in March 2009. However, since al-Bashir
resides in Sudan- which is not a signatory to the Rome Statute - he cannot be extradited to The
Hague to conduct the trial where he would ultimately be sentenced (PSS-UNAD). The ICC does
not have the ability to enforce this arrest warrant. The challenge with getting the ICC to try
individuals from a particular state is that the UN Security Council must give its authority and the
state in question must itself approve. The ICC is a “court of last resort”, therefore it acts only in
cases where the “national courts are unwilling or unable to carry out genuine proceedings” (Ku
and Diehl 240). It only accepts cases of crimes committed after July 1, 2002. The scope of the
ICC does not cover all human rights issues, since it is a “criminal court” it limits its jurisdiction
to “genocide, crimes against humanity and war crimes” (Ku and Diehl 239).
Even if a state has a chance of approval by the ICC there are immense practical
difficulties like limited funding and resources, the lack of will from other states to get involved
by providing help and the difficulty in “gathering evidence and enforcing arrest warrants in
active war zones” (Eisikovits). Outside actors who are willing to help in transitional justice are
challenged in war torn states which have “deplorable condition of the legal class” including
problems of language and translation which “call into question the coherence and fairness of the
criminal courts as instruments of political transition” (Eisikovits).
Trials set in the ICC take place in The Hague in the Netherlands. The fact that the trials
are set away from the nation in question sometimes poses challenges. On the one hand it can
seem as more neutral and impartial than a court on home land with past adjudicators from a
previous regime; on the other hand, it can be perceived as a form of cultural imperialism where
‘others’ know best. The ICC has been criticized by certain locals that foreign prosecutors and
judges are not attune to the local laws, customs and cultural subtleties and therefore cannot
properly adjudicate. Setting tribunals abroad can create “a disconnect between the people who
suffered throughout the war and the process in which their suffering is addressed” (Eisikovits).
As a reverse argument to why truth commissions seem “not enough”, the same criticisms go for
trials and tribunals. Critics argue that not enough attention is paid on the suffering of victims and
“that the proceedings tend to become technical and tedious, thus trivializing the horrors being
discussed” (Eisikovits).
DOMESTIC COURTS
Would it be wise to hold trials domestically to avoid criticisms about foreign nationals
not having cultural know-how? Having national trials have their own faults and challenges as
well. For one, in war torn countries sometimes there is not even the remnant of the physical
infrastructure of a court room or trained individuals to work in the court system. Secondly, their
legitimacy is questioned because either the new state continues to employ those from the old
regime that had been implicated in crimes against humanity, or they hire complete new judicial
staff with little experience or “over zealous” prosecutors (Dickinson 301). This poses the
challenge of “victim’s justice”. During the Nuremberg trials, Hermann Göring one of the twenty
Nazi leaders on trial for war crimes told the prison’s psychiatrist: “the victor will always be the
judge, and the vanquished the accused” (Eisikovits). To ensure there is not this kind of bias,
another alternative method should be sought.
HYBRID COURTS
When no domestic or viable “full-fledged international tribunal exists”, when there are too
many cases for the ICC to cope or technically cannot take on a state’s case, hybrid domesticinternational courts act as a happy medium of accountability and reconciliation (Dickinson 295).
Hybrid courts which are made up of national and international laws and courts seem to be a
better alternative (Tepperman 139). Hybrid courts have the advantage of having impartiality of
adjudicators from abroad mixed in with local prosecutors and defenders who understand better
national laws and customs. They can both learn from each other and increase the capacity and
norm building at the civil society level important in postconflict reconstruction (Dickinson 307).
This proved to be the case in Kosovo, East Timor and Sierra Leone. For example, the domestic
system in Sierra Leone was “strained to the breaking point by the civil war and rife with
corruption, was ill-equipped to handle any serious case involving atrocities committed during the
war”, therefore hybrid system seemed most appropriate (Dickinson 299).
The main purpose of transitional justice is to create peace after war, put human rights first,
collect truthful historical records from victims of abuse, and transition into a new political
system with reconciliation (Eisikovits). Hybrid courts seem to offer the best balance towards a
long term successful transition and democratic system.
One unavoidable future challenge that will increasingly have to be addressed by states and
outside actors is security threats. While justice is a key area in postconflict reconstruction,
security elements cannot be over emphasised. One of the main ways outside actors can help is by
strengthening security so that the country can prosper and have a safe judicial system. Those
working on transitional justice “are working in an increasingly constrained space”
(Winterbotham 16). This could be said for a country like Afghanistan. “Nearly nine years after
Bonn was signed, the same alleged perpetrators of gross human rights violations still dominate
government structures. The disarmament of militias has been insufficient and incomplete,
creating an environment in which victims feel insecure and unable to challenge offenders”.
Before transitional justice can take place, security must be in place, and for security to take
place, transitional justice must be in place. The two do not go without the other. This will take
collaborative effort by domestic and international actors.
CONCLUSION
No matter what transitional system is tried in a given state, there will never be a 100%
success rate and there will always be people who are dissatisfied. The key is finding the balance.
Transitional justice has proven to be most effective when various measures, both punitive and
reconciliatory methods are included. If one is done alone, there will always be a greater segment
of people who feel dissatisfied and who may harbour anger used to spark new conflicts. The key
is not to absently punish individuals because the purpose of transitional justice is not to take
revenge but rather rehabilitate and include them as much as possible in a peaceful society. The
key also is not to let those who have committed grave acts of violence to go with impunity and
potentially reoffend. Truth telling, sharing stories and reparations are important for a society to
heal and move onwards. Transitional justice’s purpose is to help strengthen peace and
democracy. To achieve this, the most likely success will come with the active participation and
coordination of many groups both within the state in transition and among the international
community. Victims and perpetrators must work together to reconcile and build strong
institutions together. Outside actors can help too with funding, resources, training and sharing
expertise and experience, in particular legal advice and aid including awareness on international
human rights law (ICTJ).
Each case is unique and ultimately has to be studied individually, but generally the key to
success for any transitional justice system is a holistic approach; one that focuses on human right
and has a relatively equal balance between prosecution and reconciliation and a relatively equal
balance of division of labour between local and outside entities.
WORKS CITED
(2007). The United Nations and Darfur Fact Sheet. Peace and Security Section of the United
Nations Department of Public Information. Retrieved at:
http://www.unis.unvienna.org/pdf/UN-Darfur_fact_sheet.pdf
(2010). International Center for Transitional Justice (ICTJ). Retrieved from:
http://www.ictj.org/en/tj/
Bercovitch, Jacob & Jackson, Richard. (2009). Conflict Resolution in the Twenty-first Century:
Principles, Methods and Approaches. University of Michigan, USA.
Dickinson, A. Laura. (2003). The Promise of Hybrid Courts. The American Journal of
International Law.
Diehl, Paul F. & Ku, Charlotte. (2009). International Law, Classic and Contemporary Readings
(Third Edition). Boulder, Colorado: Lyne Reinner Publishers, Inc.
Eisikovits, Nir. (2009). Transitional Justice. The Stanford Encyclopedia of Philosophy
http://plato.stanford.edu/entries/justice-transitional/
Humphrey, Michael. (2003). From Victim to Victimhood: the Truth Commissions and Trials as
Rituals of Political Transition and Individual Healing. Australian Journal of Anthropology.
Kaufman, J. Daniel, Parker, M. Jay, Howell, V. Patrick, Doty R. Grant. (2004). Understanding
International Relations: The Value of Alternative Lenses Fifth Edition. McGraw-Hill
Companies, Inc, USA.
Pauly, Robert. (2011). Seminar 5, Week 6 Lecture Notes: Application of Relevant Approaches to
and Theories on Recovering from Atrocities to South Africa Case Study (1948-2011).
Roth, Kenneth. (2004). The Law of War in the War on Terror. Foreign Affairs.
Tepperman, D. Jonathan. (2002). Truth and Consequences. Foreign Affairs.
Vora, Erika, Vora. A. Jay. (2004). The Effectiveness of South Africa’s Truth and Reconciliation
Commission: Perceptions of Xhosa, Afrikaner and English South Africans. Journal of Black
Studies, Sage Publications 34(3).
Winterbotham, Emily. (2010). State of Transitional Justice in Afghanistan: Actors, Approaches
and Challenges. Afghanistan Research and Evaluation Unit. Retrived from:
http://www.humansecuritygateway.com/documents/AREU_StateOfTransitionalJusticeInAfgh
anistan.pdf