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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). 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