Pursuing transitional justice without transition?

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Pursuing transitional justice without transition?

While early transitional justice efforts addressed the past abuses of authoritarian states, transitional justice is increasingly occurring in countries where a transition has not occurred or where conflict is still close to the surface. What approaches do practitioners adopt to promote transitional justice in such complex political contexts?

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TJ without transition?

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This question seems particularly pressing the more established transitional justice becomes as a field. Increasingly, mechanisms associated with transitional justice are being established in contexts where no overt political transition has occurred.

For example, TJ has been used extensively in Uganda - with the presence of the International Criminal Court, the start of prosecutions in a domestic war crimes court, the roll-out of community reparations in the north, etc. - even though regime change has not occurred. A very different example would be the use of TJ mechanisms, particularly truth commissions and various forms of reparation, in established democracies to address injustices of the past, including the Truth and Reconciliation Commission of Canada and the Australian National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, along with official apologies. In addition, TJ is being discussed as a viable option in a number of contexts where conflict is close to the surface, for example in the Philippines and Sri Lanka.

There are a number of diverse examples and many ways to approach this topic. I look forward to your comments on what this means for TJ as a field, what issues this might bring up, and what approaches practitioners have developed to deal with the tensions such use of TJ might elicit.

No transition or the wrong transition?

In the case of Uganda, the issue has not been so much that a transition hasn't occurred (which is right - it hasn't) but that much of the 'transitional justice' activity that has taken place has effectively focused its energy on the wrong transition - namely a transition from conflict to peace. When the ICC Chief Prosecutor identified Uganda as a situation of concern in 2003, Uganda became internationally known as a country in transition from conflict to peace. The showpiece of that transition became the issuing of arrest warrants against Joseph Kony and his fellow leaders in the Lords Resistance Movement. However, this led to a focus on the wrong transition: the real transition that needed to take place was from authoritarian rule to democratic governance. In reality, Kony was a symptom (albeit a brutal one) of a brutal government and the mismanagement of resources for decades (as Salima has pointed out in another thread).

Of course, this was not wholly unrecognised, and the ICC never pretended to be anything more than part of the solution to the war in northern Uganda. But in practice its involvement altered the parameters for pursuing justice, not least as it obscured the real transition that needed to take place: with such a strong focus on the LRA and Kony, it became much easier for those in government to look good, and much harder for (local) civil society to push forward a broader national transitional justice process.  

It is important, therefore, to understand who sets the agenda in deploying the label, 'transitional justice'. We need to be constantly asking the question, who defines transition? And who sets the agenda?  

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Since everyone is talking about TJ as it relates to N. Uganda...

I though I would post a link to a theater project we are supporting which covers themes of war reparations, transitional justice, collaborations between stakeholders: https://www.indiegogo.com/projects/silent-voices-a-play-and-advocacy-pro...

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Transitional justice where there is no transition?

The question of whether transitional justice can be said to be occuring where there is no transition is indeed a thorny one.

I am drawn to @Jasmina-brankovic definition in [https://www.newtactics.org/comment/7168#comment-7168] "mechanisms associated with transitional justice are being established in contexts where no overt political transition has occurred".and uses the example of Uganda.

@Jermaine has wondered in a conversation elsewhere this is a contradiction in terms. @Lucy-hovil I think hits the nail on the head here. It is not so much a question of no transition or wrong transition but one of labelling - probably not even of who is doing the labelling but what exactly said label means.

We mostly identify transitional justice as occuring when:

  • we observe the action, albeit mostly unsatisfactory, of certain mechanisms. The ICC has been mentioned above and the commissions that come in all forms (truth and justice, truth and reconciliation, truth, justice and reconciliation). Truth usually denotes recording of history that was hitherto unofficial but remained very real in the memories of victims and perpetrators alike. Justice usually implies prosecutions of accused perpetrators and reconciliation.. well. That is a difficult one.
  • Change in power from persons associated with oppressive regimes to new ones, again with varying results (South Africa)
  • some kind of peace deal (Northern Ireland).

The trouble with transitional justice may lie in it seeking to describe and record a complex phenomenon occuring on many areas of a society: political; socio-economic; legal; religious or ethnic tolerance and the like. All these move along at varied speeds. It would seem that either the original markers of transitional justice are insufficient to describe the new situations are those occuring in Uganda (or Kenya) or the time period before which we can safely say transitional justice is occuring is still underestimated.

The political (regime change) definition is most reliable since it is easiest to observe from far and over a shorter period. Socio-economic change (which I bet lies at the heart of much of the discontent that leads to the violence and opporession in the first place) is harder to perceive and record, even over a couple of decades and change in community relations (religious/ethnic or whatever cultural archtype used to define the conflicting groups) is most difficult to indepedently verify, especially by external observers. A good example is how the recent detention of Jerry Adams over alleged involvement n the enforced disappearance of Jean McConville has exposed the chasms that still keep the two communities apart despite seemingly hopeful political transition (without truth).

In Kenya, we may have just achieved the very rare complete overhaul, in "peacetime" of the legal/constitutional system that was in force during the years of oppression, but the political elite remains in place and the work of the truth and reconcilaition commission and ICC are but a series of soap opera like intrigues.

In Cambodia, while the EECC struggle on, former Khmer Rouge operatives are now the political class and this situation has not lacked its fair share of sometimes rather ridiculous intrigues.

In South Africa, which was hailed as a best practise example of how to work transitions, the emergence of a formal political party called "Economic Freedom Fighters" should at the very least urge us to reconsider either the definitional identifiers of transitional justice (away from the political regime change model) or the time a society should need to frankly transition socio-economically and in ethnic relations.

Another problematic area, IMHO, is the conflation of the roles and aims of poitics and its international version, international relations, and those of international legal tools of transitional justice. @Lucy-hovil notes of Norther Uganda "the ICC never pretended to be anything more than part of the solution to the war in northern Uganda. But in practice its involvement altered the parameters for pursuing justice, not least as it obscured the real transition that needed to take place" [https://www.newtactics.org/comment/7175#comment-7175].

It seems that there is never a shortage of eagerness to pretend that a TJ process is quickly finished. And the action of the first parameter invariable affects the effectiveness and political desirability of the other parameters. In South Africa, the TRC helped urge the country on, but with feeble attention to root cause socio-economic disparaties and community relations. The same can be said of Northern Ireland and Uganda as noted above.

But it is also true that the true long term effectiveness of TJ cannot be restricted to the possible effectiveness of legal mechanisms. even in their best case scenarios where perpetrators official tell the truth, key figures with "organisational capacity" are prosecuted and victims forgive perpetrators, long term questions are not the purview of legal mechanisms and their effectiveness or lack of it should not be used to reflect on the political desirability of a TJ process. Such a debate is curently ongoing in the Kenya and Darfur ICC situations. 'No need for ICC since we are going on well with other political areas which should not be disrupted". This is a conflation since no criminal process ever aims to find political solutions, just the narrow criminal verdict.

No matter how attractive for disciplinary purposes (lawyers would elect their own definitional terms, as would social scientists, economists, social justice activists ad infitum), since the events that lead to the need for transtional justice process are never restricted to one social phenomenon, TJ itself cannot easily fit into the pigeonhole of one discipline. Thankfully, legal recourse, whether criminal as in ICC, mixed or local tribunal, or human rights, like the many cases that continue to work their way through the InterAmerican system from the gross injsutices of the 1980s from Colombia, Peru and the like, does not pretend to cover all that is needed.

The more problematic transitions of long term issues (in Kenya, they are called Agenda 4 issues, such as the ever thorny land (re)distribution) that seek a more socially just society will always require many years of consistent implementation to achieve. This is in turn affected by political commitment. And finally, the community relations, which are affected deeply, it must be said, by a society's customs and spirituality - forgiveness as the logic alternative to retributive justice on a personal level (to which Rwanda's Gacaca and Uganda's Mak Oput are making the most significant efforts) will take the longest time.

And one cannot rule out either, no matter how uncomfortable, that these long term matters are indeed, decades long. Over the last few years, comments by certain ultra-nationalist Japanese politicans about the conduct of japanese imperialism (comfort women for instance) have evoked sharp and rare concurring reactions from Korea, through China to the Phillipines. Although the more observable markers of this tension is seen in international law questions such as sovereignty over islands and undersea mineral resources, can it be disputed that these have links to whether South East Asia has even attempted a transition from the community relations injuries that were occassioned by japanese imperalism, despite obvious socio-economic and political gains over 6 decades?

I think it is indisputable that transtion can begin from other areas of society without a political change, and with varied mechanisms and certainly over longer periods than political regime change can ever do.

To one last question. Can such "transitions" be properly called transitional justice? Since they are already transitions, can justice be ascertained as their goal. I would argue yes. Infact, it is probably that the more effervescent political change that aims more at "peace" (sometimes read as status quo) and less at justice, is a poorer candidate for the title "TJ". In any case, if we are to accept that the time periods at play are far longer than originally accepted by earlier models of TJ, then, frankly, the jury on this is still out.

For a utopian moment, I can't help but think TJ as a discipline and as a social process would do well if it didn't have to rely so much on politicians. The examples of hiccups in TJ process across the globe and time are closely related to the fate or sentiments of certain politicians. Beyond that utopia, a conceptual framework that is cognisant but not reliant on political regime change model may be a more effective way to see TJ in the short and long term. That is if we are to avoid the problem currently facing phycisists (with Relativity and Quantum theories being are complete odds).

I guess in the end, this discussion leads us back to the introductory one: What is transitional justice. Probably, what TJ is, is itself in transition.

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Definitions

Thanks for these contributions.

I agree that the field often runs up against problems posed by definitions/understandings of the term 'transitional justice' and who deploys the term. I'm sure you have ruminated on this as well, but the term is beset by issues, from the problematic connotation of transition as progress in the western conception, to the intrinsic suggestion that it is a bridge between two states and therefore necessarily temporary, to the slipperiness and diversity of the concept of justice, and even to the implied boundedness of the justice it provides (during the transition), etc.

As I noted in the conversation on victims' interests, there is also the fact that transitional justice equally meets the purposes of extremely different actors, including victims/survivors, governmental elites working to establish their legitimacy, human rights entrepreneurs, experts with a stake in the international justice industry, and perpetrators who use transitional justice to focus international attention on the crimes of their opponents while deflecting it from their own (Uganda comes to mind again). Some of these actors are clearly more powerful than others.

There have been suggestions that different terms be used, particularly in reference to (welcome) attempts to address socioeconomic exclusion and structural violence - 'transformative justice' comes to mind. We are likely stuck with the term 'transitional justice' and many scholars and practitioners are busy trying to expand the parameters of the term and field from their narrow, legalistic, short-term origins. Certainly the time when 'transition' referred to political transition in the field is past. But it does seem that now more than ever transitional justice refers to just a set of mechanisms associated with the field that are being applied in various contexts. Then again, the field appropriated many mechanisms in establishing itself (thinking of memory studies and memorialization here, for example).

Anyway, part of the thinking behind this conversation on 'TJ without transition?' was to provide practitioners working in countries where impunity is rife and political transition is nowhere in sight with a space to discuss how (and why?) they are advocating for transitional justice and what it might look like beyond 'business as usual.'

Transitional justice work in pre transition environments

I agree with Jasmina's initial point that the debate on whether we can work on TJ in contexts that are not yet in transition depends on what we mean by transitional justice. When we talk about TJ there is so much focus on the formal, and even informal mechanisms, and some would say that this is in fact the field of transitional justice. However I work with local actors across Asia, trying to assist them to form and implement TJ strategies and in many of these countries the hope of TJ mechanisms being implemented in the near future is very low. Does that mean that we cannot work on TJ in those contexts? Far from it. I would say that ninety five percent of the work on TJ that we do in these transitional contexts is not focused on implementing mechanisms but rather is the strategic actions we take to build the demand for transitional justice, and the capacity to implement the mechanisms.

 Standing in front of a group of victims, former political prisoners and civil society in Yangon last week I was once again in a position where I was explaining that the fact that prosecuting those most responsible for the mass violations that have occurred looks to be impossible now does not mean that it will be impossible in the future. Presenting examples from Latin America and other regions and then focusing on some closer Asian experiences from Cambodia, the current flawed attempts in Bangladesh over the 1971 attrocities, the truth commissions and trials in both countries from the Indonesia-Timor context, South Korea's TRC etc, leads the participants to realize that TJ victories often only come as a result of decades of preparation. They smile with resignation when I say that many in the room will still be involved, seeking justice, truth and reparations, in twenty or thirty years. And that the trials and other mechanisms that take place decades after the attrocities do not magically appear, but are the result of many years of very frustrating work in which victory often seems only a dream. The skills, capacity and linkages that are needed to build the demand for TJ, and which are necessary if the eventual mechanisms are to be successful often have to be developed first. In many of the newer fragile transitions and in some contexts where the transition has not yet taken place we can work on building these capacities and linkages, collecting data and testimonies before the evidence decays, searching for ways to assist victims which may be only linking them to existing services for example, building an awareness of the importance of accountability etc.  In each context I believe there is a strategy we can develop to bring us closer to our TJ goals. But the strategies need to be nuanced, deeply focused in the context and with an honest acceptance of the limitations and the realistic time frames of achieving goals.

Leadership within the Transitional Justice Field--Research

 I am a Doctorate of Global Leadership candidate. My dissertation: Judicial Leadership: An Examination of Leadership within the International Criminal Court.  A brief overview of my dissertation is below. Request your perspective and any assistance you may provide as I would like to get a perspective from the experts in the transitional field.

This proposal is to conduct an exploratory study of the individual leadership traits and competences of judicial actors comprised of the Presidency of the Court, Office of the Prosecutor, and Registry and its support staff at the International Criminal Court (ICC) located at The Hague, Netherlands.  The research design for this exploratory study semi-structured interview protocol has three objectives: 1) determine the key individual leadership traits and competencies within the judicial process, 2) determine the view of leadership traits and competencies among current and former judicial actors within the tripartite organs and its support staff, and 3) identify leadership practices within the tripartite organs of the ICC.  The objectives of this study are to not only to identify leadership traits and competencies of current and former president of the court, office of the prosecutor, and registry or court administrator and their support staff but also to generate a body of knowledge that explores judicial actors as leaders within the national and international judicial systems.

Transitional justice practitioners claim that the ICC, as an international institution, is not only in crisis but is also ineffective and lacks legitimacy within the international community (Bell, 2009; Brinkerhoff, 2011; Skaar, 2012; Thoms et al., 2008).  Henham (2008), Ingadottir (2002), and Schiff (2008) argued that due to a lack of leadership the tripartite organs within the ICC are politically polarized, poorly coordinated, often technically incompetent, bureaucratically stovepiped, and organizationally inefficient.  For instance, Schiff (2008) suggests despite the fact that Trial Chamber judges are to maintain judicial impartiality and the prosecutor requires operational independence of the court, the lack of coordination and organizational tension contributes to the court’s ineffectiveness and legitimacy.  Similarly, scholars noted that conflicting political interests and bureaucratic mismanagement of prosecutorial strategies (Henham, 2008) as well as personal ideological beliefs and political influence by international judges (Terris, Romano, & Swigart, 2007) contribute to the court’s inability to assist victims that seek justice from the legacies of human rights violations.  As a result, transitional justice proponents believe that the ICC is ineffective and lacks legitimacy within the international community (Brinkerhoff, 2011; Henham, 2008; Skaar, 2012; Thoms et al., 2008).  For that reason, transitional justice practitioners note that greater leadership and cooperation is needed within the different divisions of the court (Schiff, 2008).

 From my research, leadership within the international judicial process has not garnered the attention in either the leadership or transitional justice literature.  Recently, transitional justice practitioners recognized there is an epistemological gap in understanding how leadership contributes to the court's operational performance, effectiveness, and perceived legitimacy within the international community

  • Global Leadership– Leadership literature revealed that there are as many definitions and connotations of leadership as researchers and cultural languages (Mendenhall et al., 2013; Story, 2011).  To illustrate, leadership scholars define a global leader as "an individual who inspires a group of people to willingly pursue a positive vision in an effectively organized fashion while fostering individual and collective growth in a context characterized by significant levels of complexity, flow and presence" (Mendenhall et al., 2013, p. 75).  At the same time, Javidan and Teagarden (2011) define global leadership as “a process of influencing individuals, groups, and organizations (inside and outside the boundaries of the global organization) representing diverse cultural/political/institutional systems to contribute toward achievement of the global organization” (p. 17).  While this definitional stream describes global leader as an individual with the responsibility to organize a group toward a singular organizational outcome, Javidan and Teagarden (2011) conversely provide a definitional expansion of global leadership to include individuals, groups, and organizations influencing others across geographical boundaries as the central tenet rather than traditional lines of authority.  However, a global leader here is defined as an individual at multiple levels of an organization who interacts and influences the exchange of ideas and actions across cultural boundaries with internal and external stakeholders for a positive change.  Furthermore, a global leader builds strategic diplomatic and political alliances as well as coalitions that span multiple cultural and organizational boundaries, ultimately creating a shared vision toward an organizational outcome (Hames, 2007; Mendenhall et al., 2013; Story, 2011).

With this as a backdrop,do you think that transitional justice practitioners are leaders that shape a certain political, legal, and reconciliation role in a country? It seems transitional justice practitioners talk about leader engagement fromthe outside but does not understand their role as leaders in the execution of transitional justice instruments.   I agree with you that there seems to be a gap in the operational definition of transitional justice.  Also,   What theories are associated with transitional justice instruments?

Have a great day

Andrew Campbell

The question of pursuing

The question of pursuing transtional justice without transition has been in my head for a bit of time. And I agree that most often the stict formal times to which transition refer to are quite to rigid. Indeed, even if considering only a politcal transtion or a regime change, there are still many issues that remain uncertain as whether this entails a transition to a new state of affairs or new possibilities for guarantee of rigths be them civil, political, economic, social or other… Mexico is a good example of that, where there was no dictatorship pes se, but an authoritarian regime with the ocurrance of elections where the hegemonic party won all of them and it changed to a multiparty system with elections, where the hegemonic party continue participating and recently won back its governing position. Violence extended along with so-called democrátic or multiparty-period, especially in territories with disputes between drug cartels, dissapearances of people has grown and governments seemed to be quite ineffective in bringing justice to each of the cases, or in some, they appear to be implicated. To define when transition starts when it ends becomes puzzling, and past and present become too entangled to being able to differentiate, especially when past violences seem to evolve or take new forms in present violences, and the judicial system of the State seems overflown by, embedded in and triggering different forms of violence. I think that transitional justice bring about a set of mechanisms that can help to make some sense out of  conflict scenarios that are quite caotic, however TJ might  not necesarilly be able to explain much of the origins of violence, its manifestations and needed transformations, that I think is part of the intelellectual internal and local debates  that need to take place trying to visualize long time alternatives to the conflicts we are facing beyond transitional justice mechanisms…

 

The challenges for TJ in no transitional context

Anytime we talk about implementation of TJ mechanism in context of no transition, we are supposed to ask a question or two : What’s the interest of the political system to implement TJ ? Or what’s behind the choice to enter into the process for a political regime that is known to be perpetrators? Here is then issue of confidence of the actors in the process and the though behind the decision of the political party in power to accept or initiate TJ process.

Taking example of Togo, the challenges are many:

  • The independence of the mechanism
  • The confidence of the communities in the process
  • Ensure the delivery of truth
  •  Issues of justice against perpetrators still in power
  • The security of victims or witnesses
  • The misuse of the goal of the reparation program

 

  • The independence of the mechanism

Understand that the independence of TJ in no context without transition is a huge challenge, unless the political party ruling the country during the process is not part of Human rights abuses.

  • The confidence of the communities in the process

It’s not easy to understand or trust a regime that has committed Human Rights violations in its commitment to TJ process. The easiest way to understand that commitment is the will of the government to ensure the immunity of the perpetrators or to establish a process that will give him the opportunity to stay in power. Maybe, in some contexts of no transition, the sociopolitical arena has commended TJ process or the government has decided to work for the development of the country through and has understood that there will be no development without reconciliation of the people in the country.

  •  Issues of justice against perpetrators still in power

"No one will decide to give to his enemy the means that will destroy or kill him". Moreover, politicians that are involved in massive human rights abuses will not allow justice to be done properly. So to say, if perpetrators are still in power, they will easily try to ensure that justice will not prosecute them and imagine ways to turn the process in their advantage and ensure their immunity.

  • The security of victims or witnesses

Victims and witness will not easily involved in the process for fear of reprisals or lacking of confidence in a process established by the perpetrators in any of context of no transition. That is what happened in Togo at the beginning of the process and is still continuing with some victims.

  •  The misuse of the goal of the reparation program

Understand that implementation a reparation programme in such a condition is not an issue like ensuring truth and justice. Even, reparation programme can be used just to ensure social peace and the lasting of the regime in power.

What can be achieved thru the TJ process in Togo?

Thank you, Ghislain, for sharing with us the TJ challenges being faced in Togo. It's so helpful and interesting to read both about the theory of transitional justice and how the process works in contexts without transition, and to read about these concrete examples of challenges. 

In light of the challenges you've highlighted above, how likely is it that the goals of the transitional justice process in Togo will be achieved? What are your thoughts on what can be achieved through this process?

- Kristin Antin, New Tactics Online Community Builder

Global Transitions, African Resource Riches and the future of TJ

Dear all, to continue the conversation, the Refugee Law Project (RLP), in collaboration with the Centre for the Study of Violence and Reconciliation (CSVR), The Centre for Democratic Development (CDD)-Ghana, and Campaign for Good Governance (CGG) Sierra Leone, under the African Transitional Justice Research Network (ATJRN) will convene the 4th Institute for African Transitional Justice (IATJ), an annual week-long residential program in Kampala from 15-21 June 2014, under the theme “Global Transitions, Africa’s Resource Riches and the Future of Transitional Justice”. Please find attached the call for applications and contact me for details. See http://www.bc.edu/content/bc/centers/humanrights/about/NonCHRIJOpportuni...

Framing issues during and after transition

This discussion on definitions of transition make me think of Michelle Bonner's article (forthcoming in the Int'l Journal of TJ) on the lack of awareness concerning the continuities between past and present state violence in Argentina. She notes that Argentina is considered a great proponent of human rights given its TJ processes and the visibility of its victims' groups and other civil society formations, but that current extreme police violence (including forced disappearance) is overlooked by the public because the term "human rights" (and violations thereof) is considered specific to what happened during the dictatorship; because security concerns due to high levels of crime appear to justify current police violence; and because the marginalized backgrounds of the victims of current police violence (as opposed to the many middle-class victims of the dictatorship) make them "unappealing" or "unsympathetic" victims. Bonner notes that it took a while for a number of victims' groups and NGOs involved in TJ to pick up calls to end ongoing police violence for a number of reasons, among them concerns about diluting their own work on past violations.

In many (most?) contexts, including South Africa, grave (state-sponsored) human rights violations do not end with the establishment of transitional justice processes. There are ways in which TJ can not only fail to address certain violations but also curb public discussion of the continuities in violence. I suppose this is yet another thing to think about... and another reason to highlight the ongoing nature of transition in our work.

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