Welcome to the discussion! We thought we'd start this conversation by exploring what transitional justice is and how these efforts are connected to human rights. Transitional justice mechanisms ranging from criminal prosecutions, truth commissions, and institutional reform to material and symbolic reparations for victims and community-based or “traditional” justice processes have become a staple of post-conflict nation building, with their promise of helping societies eschew past divisions through justice, truth, and reconciliation.
Consider these questions below when sharing your comments in this discussion topic:
- How do we define 'Transitional Justice'?
- In what ways is transitional justice connected to human rights?
- What types of transitional justice mechanisms are available to human rights defenders? When is it best to engage these mechanisms? Do you have examples of when they have been used successfully? What impact have these transitional justice mechanisms had on civil society?
Share your thoughts, experiences, questions, challenges and ideas by replying to the comments below.
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Welcome to this extended conversation on transitional justice in practice.
Over the past 25 years, transitional justice has emerged as an accepted approach to addressing legacies of past human rights violations worldwide. The United Nations defines it as “the full range of processes and mechanisms associated with a society’s attempt to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation."
Several mechanisms, usually with limited time frames and specific mandates, have come to dominate the field:
I invite comments from others in the field who can share their sense of what TJ entails, its history and major debates, and its links with human rights discourse and practice, among other topics.
For me, human rights are the starting point for transitional justice. When there is continued impunity for human rights violations, then transitional justice tools become relevant.
In my experience, the perfect form of impunity is when victims/ survivors silence themselves, and the community around them conspire to keep the silence. This means that sites of violence are not marked, days of massacres and mass violence not commemorated, perpetrators as victors freely reminesce about the days of violence and plunder, and victims are afraid to speak out. This is why transitional justice tools can still be useful when there is little political will from government. But of course, you can make great gains for accountability when there is political will. Sometimes this political will exists at the national government-level, or sometimes this can start at a local government-level.
This is what makes transitional justice such an interesting field. Like human rights it can be broad (encompassing civil political and social economic rights), it is about unravelling issues that may have been buried deep inside, and because you are pushing against walls of impunity, you have to be creative.
Another important feature of transitional justice approaches is that it has a complex view of conflict and its after-math. Thus, there is never only one response. A multitude of approaches is needed to unravel the impact of decades of conflict or repression.
Lastly, a part that I think needs much more work, is the fact that victims/ survivors of human rigths violaitons need to be in the center of the dialog about our choices and approaches. In order for victims to participate in these processes, we also need to find better ways to support their urgent needs --as victims of untold atrocities. I think this has been a weakness in the field, one that we must correct in order to move forward.
I just completed teaching a graduate course on TJ and I continue to learn about the complexities of the field. Transitional justice centres on confronting the past in conflict or deeply divided societies. This confrontation centres on addressing the culture of impunity for human rights atrocities, it is about either or both establishing the truth of events that occurred and promulgating or publicizing this truth. Additionally, this confrontation is about providing justice to victims and to also establish accountability mechanisms to secure against a repetition of these atrocities.
Personally, human rights is the frontispiece of transtional justice primarily because it is the violation of human rights that always necessitates transitional justice efforts. The denial of the rights to truth and justice are to deny fundamental rights to humans who live in societies shrouded in the abuse of human rights. Transitional justice is powerful for me because it restores or creates the ethos that human rights are fundamental to a decent society. Upholding and protecting human rights strengthens democracy. I understand democracy to mean more than just the casting of ballots, it is a about choice and deliberation, that citizens have a stake in how their country is governed.
Transitional justice is a struggle or maybe more appropriately a challenge, one that involves balancing the past (retrospective) with the present and future (prospective). In this delicate balancing act sacrifices are inevitable, however upholding human rights is not an option it has to be the core of transitional justice.
Thank you Jasmina, Galuh and Jermaine for sharing your initial thoughts and reflections on what transitional justice is and how it relates to human rights.
I wanted to share this video (embedded below) by the Institute for War and Peace Reporting that explains transitional justice and it's potential in the context of the crisis in Syria. For me, the video highlights how complex these processes are and that as you have all pointed it, it depends so greatly on the context and issues being addressed - each context is different. There are many key questions related to transitional justice in Syria that will need to be considered in order for justice to be realized.
What resources exist for practitioners to learn more about the transitional justice mechanisms and what is available to them in their own countries and regions?
I look forward to learning from you all throughout the next few weeks as you share your experiences and lessons-learned in our discussion topics!
- Kristin Antin, New Tactics Online Community Builder
Great video! but there are no women in this story... :( What women experienced in the conflict & what women survivors need must also be an important piece of the transitional justice picture. In Indonesia, which is a majority Muslim country, the National Women's Commission (that has a mandate to eliminate violence against women) has made important headway in producing reports on what happened to women during Indonesia's various conflicts. Women in Aceh, another conflict that raged from 1989-2005 in Indonesia, have also been organizing for justice.
Good point, Galuh! I'd love to learn more about the work of the National Women's Commission and the women in Aceh organizing for justice. Has their work been documented? Are there any case studies that could be shared here?
- Kristin Antin, New Tactics Online Community Builder
Commonly, TJ is designed as an approach to come to terms with post conflict and state repressions HR violations in order to open the gate of sustainable reconciliation in a country. Even if we can understand the point of international standards with main elements like criminal prosecutions or justice, reparations, institutional reforms or guarantee of non repetition and truth, this is not a closed list. Every country, according to its goals and past can add other criteria to be taken into account. This link to the conclusion that standard is just a route but not a closed conceptualization of TJ.
Most of the time, TJ is claim as a solution to pas HR violations reparation and reconciliation. But, understand that TJ can also be mechanism to amnesty the perpetrators and to encourage impunity. This is remarkable in country where there is not political change and the same alleged perpetrators are still in power. The process can also be used just to serve political interest and the victims are scarified on the altar of reconciliation.
As a process, TJ has to be dynamic and participative. The concept is a good thing and if we choose it, we have to focus on the benefit for the victims and the citizen as a whole. So to say, Implementation of TJ in a country must be a value shared by all the communities, at least a large part of the population. This is the only way the mechanism or process can be a success and address the main goal of the concept.
First, I appreciate the really great insights being shared in the ongoing conversations on what we are calling "TJ," a field of ideas and practices contextually very specific and constantly evolving. Let me start with the risk about defining TJ. Shouldn’t we be more careful defining TJ in very definitive term given its fluidly concept? Just looking back at how our understanding of the concept has evolved and its applicability and acceptance in different context, none of the textbooks definition seems universally acceptable. In other word, TJ is better defined by its context and how stakeholders within a given society impacted upon by the violations-past or present conceive of it. Some scholars defined TJ as “a society sitting in judgment of itself” but today most TJ measures are imposed upon afflicted societies. TJ was also described as a “window of opportunity” to deal with legacies of past abuses.
In fact, even the most comprehensive definition of the UN Sec General quoted above “full range of processes and mechanisms associated with a society’s attempt to come to terms with a legacy of large –scale past abuses….” Is limited to how societies deal with past abuses but not necessarily situations were the abuses are ongoing but nonetheless such measures as prosecution and investigations are ongoing. Given Africa’s experience with past and ongoing conflicts for example, the draft African TJ Policy framework defines TJ to include “ a society’s attempt to mitigate ongoing conflicts and to address a legacy of large scale past abuses, in order to ensure accountability, promote justice and achieve peace and reconciliation.” TJ therefore can be any measures conceived as necessary and effective to stop systematic human rights violations, address victimhood, foster acknowledgement, and guarantee non-recurrence.
Accordingly, one could argue that when the UN Sec General attempted to define TJ, the practice documented then were largely experiences from such contexts. But, today some TJ measures are a given constant -imposed by legal regimes and international treaties. A case in point is the ICC and countries that have ratified and domesticated its provision with a permanent jurisdiction to investigate and prosecute even in ongoing situations. Of course, TJ is getting more complicated and impossible with the international complementarity test where ICC jurisdiction is determined. Is TJ still possible where international involvement is mandatory?
I could not agree more with Stephen Oola that TJ is getting more complicated and impossible with the international dimension increasing and that te fluidity of the concept is very real. So, "Is TJ still possible where international involvement is mandatory?"
TJ finds itself seeking to write the history of the "non-victorious", the victims. It is probable that this is why TJ only seems to work on the macro level when there has been a clean and clear break with a past political machinery (or at least key personalities) that was responsible for large scale violations of human rights and humanitarian law. Post 1945 Germany and post 1994 Rwanda can be examples.
Unfortunately, the vast majority of societies "attempting to mitigate ongoing conflicts and to address a legacy of large scale past abuses" are not so lucky. And it can be safely assumed that all such societies never experience a certain clean break at the local community (micro) level. These communities still continue to live in the same cities,towns and villages together, victim and perpetrator. It can also be safely assumed that all these societies do not have the luxury of victim only, perperator only categories. All sides to a conflict have hurt and been hurt.
If we resist the temptation to align ourselves to definitions of TJ that consider the macro level, and the criminal law dimension that Oola refers to as "a constant", and take even more into account the "ongoing" nature of such conflicts and their innumerable local victim-perpetrator manifestations, then we can be hopeful that TJ is not only possible but alive, underneath the macro level grandstanding and chest thumping between states and the creatures of international law that they create and oppose later.
In this sense, one can draw inspiration from the Americas. The Inter-American system, with its Commission and Court have accomplished remarkable work in the legal area. To date, cases of violations from the 80s are still working their way up the system, and buffeting it as states struggle to come to terms with their obligations from decades past. This can indicate that, outside the very traumatic criminal law angle - especially since international criminal law target the elite with organisational capacity to commit the international crimes, hence only the affected society's elite - human rights law can still and does function over longer periods. Another example would be the Constitutional Court of South Africa's 2011 decision to uphold the rights of victims of apartheid era violations to speak the truth, even when involving naming amnestied perpetrators.
In the spirit of contextualising TJ, each society's peculiar history will determine usefulness of various measures and mechanisms. In Kenya for instance, the ongoing conflict revolves around electoral cycles since 1992. It can therefore be argued, with some measure of certainty that the ICC prosecutions for 2007-8 post electoral violence did help dampen the appetite for extremist rhetoric during the last electoral experience of 2013. A similar situation, like that of Ivory Coast may be expected to yiel similar results. However, the DRC situation or say Northern Ireland (EU elections are coming up) cannot be expected to function in this vein.
In other areas of peacebuilding efforts, reconstruction, reparations, at the micro level, internatonal involvement makes a big difference and keeps TJ processes alive over the long periods that political will has shown itself incapable of sustaining.
At the risk of redundancy, "Shouldn’t we be more careful defining TJ in very definitive terms given its fluid concept?"
PS. On the problem of states opposing the TJ related actions of their international law creatures, I find it interesting to compare the African and Inter-American experiences. African states are now hell bent - term used advisedly - on crippling certain ICC situations in particular. American states on the other hand, also oppose the international legal systems they are part of. Yet, Trinidad and Tobago, and Venezuela have not renounced the American Convention on Human Rights (ergo, the San Jose Court jurisdiction) because of its pronouncements on past large-scale violations related to TJ process in the hemisphere, but beause of current human rights law debates related to the death penalty, free expression and judicial independence! The countries that are the focus of TJ related cases like Colombia, Peru, Argentina, Chile, seem to engage with the Court though implementation of decision is an ongoing question.
Yet what is similar between the American and African situations is that these states and their societies have hardly had a clean break of political elite structures (cf. Germany, Rwanda). This would lend credence to the notion suggested above that it is the international criminal law dimension that seems most crippling to incipient TJ processes, and that, as suggested in another thread, maybe we should allow a longer time period (at least 2 decades, in my view) to begin wondering how effective macro-level TJ measures have been.
When the normal justice tools are corrupted , and after a long period of severe and mass violations of human rights... people are looking for another way.. and here comes the importance of the TJ, as an alternative path for real justice..
TJ is structured and must be following a step by step process in order to be well applied...
Thanks for adding your comment, Said! Your thoughts on the steps of the transitional justice process makes me wonder - do all of these steps need to exist in order for transitional justice to take place? Consider the Greensboro Truth and Reconciliation Commission:
On November 3, 1979, the Worker’s Viewpoint Organization of Greensboro led a march for social, racial, and economic justice. These advocates felt that the racism and inequalities within the textile manufacturing industry of Greensboro, North Carolina needed to be addressed. The march was interrupted by gun wielding members of the Ku Klux Klan and the American Nazi Party who shot and killed five people and wounded ten others.
Trials held in the 1980s were made up of all white juries that acquitted the white defendants tried for murder. The perpetuation of racial divisions and discrimination within the judicial system created the need for a TRC. So, 25 years later in 2004, the TRC was formed to create a more truthful and accurate historical account of the events of November 3rd, and to support the healing process for victims.
I'm curious if participants in this discussion would consider the work of this TRC as a form of justice. Please share your thoughts and other examples!
- Kristin Antin, New Tactics Online Community Builder
Apologies for interrupting this interesting thread.
I just wanted quickly to respond to Kristin's request for resources on TJ above. This is a very limited list of online resources, so I invite others to add to it, particularly resources provided by South-based practitioners in different regions (and languages).
Following on from Oola's comment, one thing I have found useful is thinking of transitional justice as a process rather than a goal. McAdams wrote a very good article on this in the International Journal of Transitional Justice. Goals are often unrealistic and inevitably disappoint. This is not to say that goals are not important, but to emphasise that the way in which a process unfolds is always incredibly important.
I would look at provision of effective remedies as a goal for TJ processes. This is a concept rooted in international humna rights law, but is not negated under TJ. States for example have the duty to investigate and punish those responsible. This position was restated by the Human Rights Committee in the case of Sharma V Nepal, where Yeshoda Sharma lodged a complaint regarding the disappearance of her husband during armed conflict in Nepal. The Committee stated that Nepal is under an obligation to provide the victim with an effective remedy, including a thorough and effective investigation into the disappearance and fate of her husband, his immediate release if he is still alive, adequate information resulting from its investigation, and adequate compensation for her and her family for the violations suffered.
The big question however remains, who determines the remedy that a particular victim or group of victims is seeking? This is the one question that all actors have to get right for TJ to have its intended outcomes.
I think Transitional Justice is a legal and political discourse with a wide array of legal tools that can be used in the aftermath of war, violence or conflict, or even during on going conflict, in order to demand the guarantee of human rights and to shed light to complex issues about people´s lives involved and affected by the conflict. I agree with what collegues have been saying, thinking of transitional justice as ongoing rather than a bounded and allready defined process.
Each context where transitional justice processes are built is different, so the legal framework needs to be ajusted to the needs, resources and symbolic world and historical legacies of the people in conflict.
The different agreements and standards fixed by the UN system enjoy a fair amount of legitimacy among States, so that serves as references to whom people can speak to, dialogue and debate with, and gave them a sound meaning regarding to what they are living in the local and national speheres.
More commonly the transitional justice framework includes processes for the search of truth, justice and redress of victims, but other approaches have been drawing attention to structural and historical violence, economic injustices and unequalities. For example land-distribution. In Colombia land distribution is a crucial issue as to what a transitional process refers to. Check out “Distributive Justice in Transitions” by Morten Bergsmo, César Rodríguez-Garavito, Pablo Kalmanovitz and Maria Paula Saffon. http://www.fichl.org/fileadmin/fichl/documents/FICHL_6_web.pdf
Of course i'm talking about the ideal case but, always we must begin with truth finding process....
I'd like to offer you a very nice paper by THOMAS'OBEL'HANSEN, with the title: "Transitional'Justice:'Toward'a'Differentiated'Theory'
I'm glad to offer you and all other friends here the link to our blogspot in arabic , as an arabic popular resource here in Egypt after we founded the popular legation of transitional justice in Alexandria....
Hansen paper is already translated into Arabic there....:)
Thank you all, and best regards,
In my view transitional justice is the process of availing reprieve for victims of some form of gross violation of rights.For instance the process of taking through the court process perpetrators of mass violence for the crimes they carried out.Transitional justice attempts to "repair" human rights damages done to a group of people.
Thank you so much for participating in this conversation on Transitional Justice in Practice! It has been an informative exchange and I really appreciate the time and thought you put into each of your comments. I especially want to thank Jasmina, Sufiya, Gulah and Patrick for helping me in putting this together and making it a success. I also want to think our conversation leaders who participated in this discussion: Naomi Roht-Arriaza, Daniela Ramirez Camacho, Jermaine McCalpin, Alison Cole, Ghislain Dodji Nyaku, Lucy Hovil, Humphrey Sipalla, Oola Stephen, and Salima Namusobya.
I hope you found it helpful to: reflect on what we mean by 'Transitional Justice', discuss the possibility of pursuing transitional justice without clear transition, discuss ways to keep the interests, needs and rights of victims in the foreground of transitional justice, explore ways to address socio economic injustices through transitional justice, share challenges and ideas around gender justice within transitional justice, and explore local versus global approaches to transitional justice. It was a thought-provoking exchange and I greatly appreciate your honesty and authenticity. I hope you all are taking away new ideas, resources, reflections and allies!
We will begin the process of writing a summary of the comments posted here. It will most likely take a few weeks and once we're finished, we'll post the summary on the front page of this conversation. For those of you that added comments, I'll notify you by email when the summary is posted.
The conversation leaderswere committed to participate in this discussion from May 12 to 23. Although that commitment has come to end, you can still add comments until the summary is posted. So please feel free to continue to add your thoughts, reflections, resources and stories!
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This discussion was the first of our conversation series on Seeking Justice. I hope to see you in our upcoming discussions on this topic, which include:
Kristin Antin - New Tactics Online Community Builder