Key Debates & Implementation Challenges
Last Updated: March 17, 2009
As a dynamic and rapidly expanding field, transitional justice is the subject of many debates.1 Strong normative commitments and ideals of justice do not always coincide with the imperatives of peacebuilding or face practical constraints at the implementation stage. This section is focused on six main dimensions of the discussion:
- The extent to which transitional justice in general and its mechanisms in particular actually contribute to peacebuilding; as well as the management of the tensions between the two;
- The persistent gap knowledge about the field; historically, the study and practice of transitional justice have rested more upon value-based judgments than actual empirical analysis; a related difficulty concerns the need to better monitor and assess the impact of transitional justice mechanisms.
- The possible convergences and divergences between global and local approaches (in particular in terms of norms, priorities and needs);
- The question of compatibility, complementarity and sequencing between different transitional justice mechanisms;
- The need to actually engender the field of transitional justice; while this imperative has been increasingly stressed in both the academic and policy literature, in practice, gender dimensions of violence and justice mechanisms remain obscured. Girls and women are usually rendered invisible or are marginalized within transitional justice processes.
- The situation of former child soldiers and childrens involvement in conflict and transitional justice mechanisms is another issue that has received increased attention but remain insufficiently integrated in actual practices.
Does transitional justice advance peacebuilding?
The broader debate
There is a broader debate about whether transitional justice in general hinders or supports peacebuilding in post-conflict societies. As a recent study summarizes: "At first glance, the case for transitional justice seems incontrovertible. Principles of fundamental justice require holding individuals accountable for the worst transgressions of universal human rights, including genocide, war crimes and crimes against humanity. Transitional justice proponents also assert that it offers other benefits, including promoting reconciliation and psychological healing, fostering respect for human rights and the rule of law; and helping establish conditions for a peaceful and democratically governed country."2
Go to Transitional justice and peacebuilding processes
Skeptics challenge these claims, arguing that "digging up the past" and identifying perpetrators can trigger renewed conflict by sharpening societal divisions or provoking a backlash from the targets of transitional justice investigations. Some critics also argue that transitional justice activities may reduce the chances of negotiating peace settlements in the first instance, particularly in cases where powerful actors capable of blocking such settlements fear punishment for past actions.3 Skeptics generally advocate a sequential approach. Go to Complementarity and sequencing
One line of critique holds that transitional justice may actually undermine rather than promote peace. The basic argument is that transitional justice can undermine peacebuilding in fragile post-conflict contexts by producing serious conflicts. Disputes about basic transitional justice questions (whether to prosecute, to uncover the truth, to provide reparations, whether to vet public institutions) can destabilize rather precarious post-conflict arrangements where the original causes that led to the violent conflict are still salient. Scholar Chandra Lekha Sriram uses the critiques of liberal peacebuilding--the idea that democratization and economic liberalization promote peace in post-conflict societies--to argue that a similar "liberal" theory underpins contemporary transitional justice. This line of inquiry questions the premise that transitional justice processes inherently support the consolidation of peace in post-conflict societies.4 She argues that the opposite may be true: "transitional justice processes and mechanisms may, like liberal peacebuilding, destabilize post-conflict and post-atrocity countries, and may also be externally imposed and inappropriate for the political and legal cultures in which they are set up."5
Scholar Rama Mani argues that transitional justice as currently conceived (approaches that address past human rights violations) is ill-suited to the needs of post-conflict societies. As she argues: "Transitional justice as currently practiced through trials and truth commissions, therefore, fails to deliver reconciliation and cannot provide a bridge between past and future. Neither trials nor truth commissions can aspire to meet the goals of either individual or national/societal reconciliation, for two reasons. First, they divide rather than unite victims and perpetrators. Second, they exclude rather than include bystanders, beneficiaries and populations that were structurally and indirectly, rather than directly, affected by war. They fail to provide a sufficient bridge from the divided past of 'perpetrators versus victims' to a united future of all survivors of conflict, regardless of their past role."6 Rather, Mani calls for a broader framework that she calls "reparative justice," which encompasses transitional justice, reforming of justice institutions, and addressing structural inequalities. Along the same lines, in a recent piece on the contribution of religions to transitional justice, scholar Daniel Philpott contrasted the prevailing "liberal peace" approach to religious approaches, one of the distinct features of religious approaches being their holism -- i.e., an ability to conceive of transformation as a project for the whole of a society and its members.7
One problem with this debate is that both sides tend to lump together all transitional justice mechanisms as if, collectively, these constitute a coherent, monolithic framework. While surely there are a range of approaches commonly referred to as "transitional justice," this field is in fact quite diverse and rather complex. There are also many internal debates about the relative benefits or shortcomings of particular transitional justice mechanisms.
Criminal accountability and its discontents
The benefits of criminal prosecutions have been variously assessed. Criminal prosecutions are intended to stigmatize perpetrators, foster the rule of law, establish a historical record, restore the dignity of victims, individualize guilt, promote social reconciliation, and deter future human rights violations.8 Above all, they are supposed to provide a significant measure of accountability for gross human rights violations and advance national and international criminal jurisprudence. Instead, they have also spawned a great deal of criticism and debate, in particular in their international forms--namely, the ad hoc tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR), and, more recently, the International Criminal Court (ICC).9 A generalized disenchantment arose during the 1990s with regard to international justice, particularly the ad hoc tribunals for the former Yugoslavia and Rwanda.10 Part of the critiques directly relate to the international character of these experiments. An important aspect of the criticism that surrounds the ICC today is also directly due to the fact that its cases to date concern the African continent.11
Go to global and local approaches
However, criminal prosecutions are also debated because of their narrow focus on punishing perpetrators, which provides inadequate responses to the varied and complex needs of post-conflict societies.12 In their comprehensive study of various post-mass violence societies, Eric Stover and Harvey M. Weinstein conclude that "there is no direct link between criminal trials (international, national, and local/traditional) and reconciliation."13 Critics argue that, by targeting individual perpetrators of mass violence or gross human rights violations, trials can promote a "myth of collective innocence."14 Yet, individuals, however heinous or unimaginable their crimes, rarely act in a vacuum. Instead, they are embedded in and products of a broader political, social and cultural context that produce mass violence.15 This larger context usually implicates a wide array of culpable people with varying degree of responsibility. While this surely does not mean that every member of a particular group was responsible for or participated in mass violence, it does suggest that there are larger structural, cultural, and institutional causes that trials fail to capture. As a result, trials may inadvertently encourage societies or groups to "scapegoat" a few leaders for the past violence and thus discourage societies from reckoning with their past, which may perpetuate political myths of group innocence and victimhood.
Questions are also raised as to whether trials deter future violence or support democratization. This aspect of the debate is well known in Latin America where part of the history of transitional justice has been written in the 1980s. The authors of a recent empirical study assessing the relationship between trials and democratization in the region argue that "holding human rights trials has not undermined democracy or led to an increase in human rights violations or conflict in Latin America."16
In the last several years, there has been a more contentious and controversial dimension to the debate about the merits of trials with the role of the International Criminal Court (ICC) in a number of ongoing conflicts, particularly in northern Uganda and Sudan/Darfur,17 where the ICC has indicted such figures as the LRA's leader Joseph Kony and, more recently, Sudanese President Omar al-Bashir. Critics of the ICC argue that its efforts to try leaders for international human rights crimes stand in the way of peace negotiations and agreements that could end armed conflict and pave the way toward peace. Moreover, critics argue that it will be hard to persuade leaders, through incentives and guarantees, to exit from power via negotiated settlements that eschew criminal accountability because, as the case of former Liberian leader Charles Taylor demonstrated, that can be reversed by institutions that enforce international justice. Such leaders, therefore, would be unlikely to end armed conflict by way of peace agreements because of a fear that, whatever the terms of the agreement may be, they will end up in The Hague--a phenomenon one observer has termed the "Charles Taylor" effect.18 In sum, the ICC's intervention in ongoing conflicts is viewed by some an obstacle to the quest for peace.
Go to Traditional and Informal Justice Systems Cases study: Northern Uganda
Amnesties as the most debated component of reconciliation
Amnesties are sometimes perceived as essential instruments of peacebuilding because they lead to political bargains that allow for the building of institutions that protect the rule of law and manage political disputes peacefully.19 Amnesties, their proponents claim, are primarily designed to promote reconciliation (usually meaning national and political, rather than individual or community, reconciliation).20 They present the advantage of not dwelling on the past where violence and victimhood are marked by shades of gray, and where any form of justice (particularly criminal trials) is bound to be highly imperfect, inadequate, and may even produce new grievances and conflicts. Amnesties, so the argument goes, are fundamentally forward-looking: they place a premium on the reconstruction of post-conflict societies, a task which demands the cooperation and participation of all sections of society and of all categories of people (victims, perpetrators, accomplices, bystanders, beneficiaries).21 Moreover, amnesties are said to be important peacebuilding instruments because they ensure safe transitions from war to peace and secure ex-combatants' buy-in to the peacebuilding process, thus enhancing the prospects of sustainable peace. However, they are also perceived by survivors and activists as a denial of the universal right to justice, a right that has been constantly claimed by the United Nations, although the organization has helped broker peace agreements which included some amnesty provisions.The ambiguities of truth
One expert on truth commissions observes that "At the dawn of the twenty-first century, the truth commission has become a staple of postconflict peacebuilding efforts."22 Truth commissions have been celebrated as an effective middle ground between criminal accountability and impunity, as a realistic and superior form of transitional justice ideally suited for societies recovering from mass violence.23 By being more centered on victims than on perpetrators and primarily concerned about the rebuilding of social relations, truth commissions are thought to be the most effective mechanisms for promoting peacebuilding.Yet, the proliferation of truth commissions has spawned a wave of critical and empirically-driven scholarship.24 The general criticism is that conventional wisdom expects too much from truth-seeking and truth-telling activities. "The problem lies not with the truth, per se, or even with the search for or dissemination of the truth. The problem is that the truth neither is nor does all that we expect of it."25 In general, truth commissions are thought to establish an authoritative historical record, help victims, make recommendations for reform, and promote accountability and reconciliation. Scholar Erin Daly finds that to date truth commissions have been wanting in all these respects.26
According to critics, the first--and perhaps the main--erroneous expectation is that a truth commission will provide a single, authoritative account of the past. However, "no period of a nation's history can be described by a single, elegant truth narrative."27 Instead, usually there are different and provisional (and perhaps even conflicting) versions of history at any given moment in time.28
The second problem is that truth commissions, whatever their achievements, may not be able to capture the most important element of the story for victims. As Daly explains, "Perhaps the biggest problem with the truth is not that there are too many truths but rather that there is not enough truth. Often the truth that victims and others most want to hear is not the forensic truth, nor the historical or dialogic truth, but the psychological truth. Why did the perpetrator do this? Why did the government try to erase my people? How could the world stand by and let it happen? To these questions, there are no answers. No truth commission report can explain in a convincing and satisfying way the mysteries of human nature, the banality of evil. The most important part of the story may very well remain untold."29 A related criticism is that, by seeking to provide the version of the past, truth commissions may promote a new orthodoxy or a dominant political myth about the past that would stifle democratic debate and deliberation.
Go to Memorialization, historiography and history education
Another contentious issue is the purported link between truth and reconciliation. Some argue that truth commissions, if properly functioning within an overall conducive environment, can contribute to societal reconciliation. However, "despite claims of truth-telling advocates, we actually know very little about the impact of truth-telling or truth-seeking on peace. Claims about the peace-promoting effects of formal truth-telling mechanisms rest far more on faith than on sound logic or empirical evidence."30
One of the few empirical studies that attempted to test the link between truth and reconciliation, in the case of South Africa, portrays a mixed reality. However, the author points out that even though this may be "a disappointing finding...truth does not contribute to irreconciliation either"--a fear many had when gruesome testimonies were being made.31 Indeed, in post-conflict environment one must "take into consideration the society's ability to sustain the pressure and tension of exposing difficult truths without collapsing into renewed violence."32 This had lead to a general fear that both truth commissions and trials may potentially "set back the process of reconciliation when all parties concerned view themselves as victims."33 This could even potentially serve as a base for dangerous ideologies. "In divided societies emerging from violent conflict, the truth can be a source of danger. Often legitimate truths can become fodder for dangerous hypernationalism, especially for the victims of crimes. Some of the most dangerous forms of nationalist ideas are self-victimization myths...Even if based on truth, they can be an excuse for cruelty, maltreatment, and violence that can lead to war."34
Some critics even doubt whether truth is an urgent need in post-conflict societies. As Priscilla Hayner, a leading scholar of truth commissions, points out, "it is easy to imagine that...reconciliation...may be more affected by other factors quite apart from knowing or acknowledging the truth about past wrongs."35 Especially in post-conflict societies marked by widespread poverty, reparation packages and improvement in socio-economic conditions may be more important for peacebuilding, at least in the short-term, than truth-telling activities.36
Even supporters of truth commissions caution against being overly-optimistic about the peacebuilding power of truth commissions. As scholar Tristan Anne Borer notes: "Does truth-telling contribute to sustainable peace?...The answer to the above question is an extremely modest 'it depends.' While an unqualified yes or no would surely be more satisfying, the truth is that reality is rather more nuanced...Under certain circumstances, if all the right variables are in place, certain types of mechanisms might lead to certain types of truth, which might lead to some aspects of sustainable peace."37 It is also important to keep in mind that it may be more helpful to regard truth commissions as one component of transitional justice in post-conflict societies: "Truth telling alone can never be a single guarantor of sustainable peace; it is but one of the many factors required for such peace. Most transitional justice scholars argue that it is a necessary precondition for peace. It will never, under any circumstance, however, be a sufficient one."38
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The knowledge gap
Transitional justice is marked by a significant knowledge gap despite its momentous growth as a field of study and practice in the last decade. While there are numerous transitional justice projects underway today in many post-conflict societies, the actual effects of such endeavors are still largely unknown.Historically, the study and practice of transitional justice have rested upon value-based judgments about what is good or bad for countries moving from war to peace. Some scholars argue that, since its inception, the field of transitional justice has embraced a set of core assumptions which remain largely untested, in particular that: (1) punishing perpetrators enhances the durability of peace, and (2) that sustainable peace cannot be based on distortions or myths about the past. The widespread though unspoken belief is that transitional justice would be an inherently good thing for post-conflict or democratizing societies.39
In the last several years, however, the field of transitional justice has been undergoing a major shift: from normative to more empirically-based arguments about the role of transitional justice in post-conflict societies. Moreover, scholars are increasingly interested in applying empirical research methods for developing, monitoring, and evaluating transitional justice activities.40
The reality, however, is that there is still little empirical evidence to know whether transitional justice obstructs or advances the pursuit of peace. As a recent survey of the field concludes, "there is still insufficient evidence to support strong claims that transitional justice mechanisms have had positive or negative effects on political violence, respect for human rights, the rule of law, democratization, or popular perceptions of regime legitimacy."41 The study also concludes that at present the existing empirical evidence does not enable policy-makers to make empirically informed decisions about "when, where and how to promote transitional justice."42 Furthermore, one recent study that sought to evaluate the effect of transitional justice mechanisms on the duration of peace concluded that transitional justice mechanisms "may contribute to peace duration, but the results are weak and inconsistent."43
A key challenge is that transitional justice does not easily lend itself to empirical measurement. As scholar Ellen Lutz writes, "While we can count the number of alleged perpetrators who are tried and found guilty, it is much harder to calculate victim or societal satisfaction with the process. While we can claim that deterrence is an important transitional justice rationale, it is hard to determine in what way transitional justice processes contribute to non-recurrence. While we might believe that transitional justice processes contribute to the solidification of democratic civil society institutions, there are so many other independent variables that are part of any transition process that it is hard to isolate what role accountability measures played."44 The increase in the number of ethnographic studies of how individual and communities have been conceiving of and carrying out local processes of transitional justice should help form a better understanding of issues that require analysis through transdisciplinary lenses.45
The need to better monitor and asses the impact of transitional justice mechanisms has been increasingly recognized by practitioners themselves.46 "The field is moving from an initial period of excitement about the ideals and tools transitional justice represents, to a more sober accounting of what these tools have really been able to accomplish."47 One key question for practitioners is: what are criteria for success? While this concern is common to other dimensions of the peacebuilding agenda, it is particularly acute in the transitional justice field as it is still relatively recent and under-studied. The limits of "success stories" such as South Africa have also shown their limits.
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Global and local approaches
With the expansion and diversification of transitional justice mechanisms--multiple types of processes occurring at multiple levels and carried out by multiple actors--one key debate concerns the possible convergences and divergences between global and local approaches. The two main dimensions of the debate concern, on one hand, the norms that should be applied (i.e. the possibility of a universalist understanding of justice vs. the importance of culturally embedded answers); on the other hand, the priorities and needs that should be acknowledged.Needs and priorities: towards a locally-driven agenda?
After more than two decades of experimentation with post-conflict transitional justice, there seems to be a growing consensus in favor of tailoring transitional justice processes to the existing needs, capacities, and aspirations of post-conflict societies. The UN Secretary General's Report The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies (hereafter UNSG report) underscored this point by emphasizing the importance of building up national judicial capacities. Indeed, some critics argue that the enormous sums of money spent on the ad hoc tribunals could have been better used to shore up domestic justice systems, provide reparations to victims, or address other pressing reconstruction needs. The two international tribunals have been criticized for being extremely slow and expensive. Hybrid criminal courts have also been criticized in this regard. It is estimated that the Special Court of Sierra Leone will have spent over 200 million dollars by the end of its mandate in 2010, a massive sum of money for the worlds poorest country.48International justice has also been criticized for being removed from and irrelevant to the realities of building peace in post-conflict societies. International experts are also regularly criticized by local stakeholders for willing to impose their model. The UNSG report acknowledged past mistakes by noting that the international community had rushed to prescribe a particular formula for transitional justice, emphasizing either criminal prosecutions or truthtelling, without first affording victims and national constituencies the opportunity to consider and decide on the proper balance.49 It also stated that "Pre-packaged solutions are ill-advised. Instead, experiences from other places should simply be used as a starting point for local debates and decisions."50 As a consequence, Diane Orentlicher, a prominent transitional justice scholar, notes that professional practitioners of transitional justice are more aware than ever before that there cannot be a one-size-fits-all approach to transitional justice.51
Norms: the role of cultures
The tension between global and local norms of justice has been present since the inception of transitional justice, although recently there has been a marked shift from universalist to more cultural understandings of transitional justice. The universalist approach is largely explained by the fact that the transitional justice agenda has been driven by international lawyers and human rights advocates. In that view, transitional justice, like human rights, can and should be universal--that is, applicable to and enjoyable by all. Yet, scholars and practitioners have increasingly come to question the universal applicability of transitional justice processes, arguing that instead of imposing standardized transitional justice processes, it would be important to pay attention to local practices and understandings of justice and social reconstruction.This critique has been articulated with regard to criminal accountability, for example. Some argue that an excessive focus on trials may be inappropriate in some post-conflict political and cultural contexts, where local practices of social reconstruction exhibit a more rounded approach, of which retribution is but one component.52
Critics have also questioned the purportedly universal nature of truth-telling as a means to individual healing and social reconstruction. Ethnographic studies on Sierra Leone, for example, seem to reveal the divergences between global discourses and local practices. In her study of social recovery in Sierra Leone, Rosalind Shaw shows that victims and survivors, instead of verbalizing their stories, considered it best to leave the past unexplored. Survivors relied on the practice of "social forgetting" to rebuild their lives and their communities.53 In a study of Sierra Leones Truth and Reconciliation Commission, Tim Kelsall observes that "public truth-telling--in the absence of strong ritual inducement--lacks deep roots in the local culture of Sierra Leone."54 On the basis of his observations of the TRCs proceedings in one community, he concludes that the final reconciliation ceremony "did not signify or commemorate a reconciliation that had come about by means of telling the truth. It enacted, or brought about a reconciliation, with the help of an emotional effect unleashed by its ritual form."55
A closely related topic is the perceived collision of international criminal accountability versus local forms of justice. According to conventional wisdom, international justice is essentially retributive, whereas local justice is essentially restorative. Yet, contrary to conventional wisdom, local practices are not solely interested in restorative justice. Though they privilege the restoration of communal stability and order, they exhibit a wider array of components that includes retribution, acknowledgement of wrongdoing, compensation, forgiveness, and reconciliation. In short, local justice practices often adopt a holistic approach to transitional justice.56 This debate has been particularly acrimonious in recent times, especially given ongoing developments in northern Uganda, with the indictment of Lord's Resistance Army (LRA) leaders by the International Criminal Court (ICC).
Proponents of traditional justice accuse those who unequivocally call for international justice of "international law fundamentalism."57 The chief criticism is that proponents and practitioners of international justice are more interested in upholding universal human rights and advancing international jurisprudence than in addressing the needs of conflict-affected or post-conflict societies. As a prominent scholar put it: "If victims' agency is a crucial value, does it not follow that victims should be able opt out of these international norms if, say, in their culture and immediate circumstances they would prefer to reintegrate rebels who have committed atrocities into their community through a traditional ceremony of reconciliation than to prosecute them?"58 Indeed, many rituals documented so far in these contexts are meant to heal, reintegrate/reconcile and also reaffirm the social norms to be obeyed by everybody in the community. Go to Case Studies: Trauma, mental health and psycho-social well-being
Advocates of international justice, on the other hand, argue that local justice processes basically mean impunity because they are perceived to allow serious perpetrators of past abuse to get off easily. This debate, it seems, tends to neglect the fact the ICC is but one component of transitional justice in post-conflict societies, and that, because the ICC can only prosecute those most responsible for international human rights crimes, there will inevitably be "impunity gaps." However, other transitional justice processes can help to address those impunity gaps. Therefore, it is important to situate the ICC within the broader context of multiple transitional justice mechanisms at multiple levels of operation.59
The insiders-outsiders tension
In this context, discussions about the role of external actors (outsiders) in post-conflict justice tend to be highly charged, as reflected in some of the online discussions and blogs.60 Local actors (insiders) may feel that outsiders are only--or mainly--interested in furthering international justice and applying universal solutions and that they dont really care about what happens at the local level in post-conflict societies. They also at times express feelings of being dispossessed and disempowered by outside experts coming to tell them what they should do or what they do wrong, without necessarily having enough knowledge and understanding of what is going on on a daily basis. Outsiders, on the other hand, may believe that they are in a position to provide "best practices" and "lessons learned" that may enhance the quality of transitional justice in post-conflict contexts.Despite this ongoing tension--laden as it is with layers of misperceptions and misunderstandings--there is, at the same time, greater discussion about complementarity of global and local approaches. Proponents of complementarity argue that transitional justice in post-conflict societies may require a multi-layered approach where international and local processes function simultaneously and in a mutually reinforcing way. There may also be opportunities for mutual learning and adaptation. As Erin Baines argues, it is important to explore "how local approaches to justice and reconciliation inform and shape international approaches. This might involve adapting aspects of local justice that meet international standards, but will also require that international strategies be transformed to fit local sociocultural and economic realities."61
Go to Actors and Activities: the interaction between insiders and outsiders
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Complementarity and sequencing
Complementarity
Historically, transitional justice has been framed in dichotomous terms: "truth versus justice" or "peace versus justice." But in the two decades, there has been a growing recognition that "either/or" choices about transitional justice processes are no longer relevant in an age of complex peacebuilding, where security, political, economic, judicial and psychosocial issues must be addressed in a holistic fashion. This major shift is largely due to a broader recognition that no single transitional justice alone can address a post-conflict societys array of complex needs and realities. If in the past transitional societies had to choose between trials or truth commissions--as if these two were somehow mutually exclusive--today transitional justice processes are underway at multiple levels in post-conflict societies.
Go to Justice and Rule of Law: Introduction
For example, Sierra Leone had the Truth and Reconciliation Commission and the Special Court for Sierra Leone roughly during the same period. Similarly, in East Timor there was the Commission for Reception, Truth and Reconciliation (CAVR) that provided a historical record of the past and conducted community-level reconciliation process, and the Special Panels for Serious Crimes Cases, a hybrid mechanism for criminal accountability. Rwanda offers an even more complex case of post-conflict justice, with an international ad hoc tribunal based in Arusha, Tanzania, a national judicial process for perpetrators of serious crimes, and gacaca courts that tried perpetrators of lesser crimes and purportedly aimed at fostering grassroots reconciliation, and a truth commission. The articulation between those different mechanisms is far from easy, but this complex reality seems be the norm today.
The greater focus on this multiplicity stems from a pragmatic recognition that adopting any one mechanism to the exclusion of others is bound to create more problems and even fuel further conflict. There is also an emerging consensus that peacebuilding entails the consolidation of peace and the pursuit of justice. As the UN Secretary Generals report The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies states, "Justice and peace are not contradictory forces. Rather, properly pursued, they promote and sustain one another." 62 Similarly, the "complementarity of peace and justice" is the first principle of the Nuremberg Declaration on Peace and Justice (adopted at the end of an international conference over 450 officials and experts from over 80 countries in Nuremberg, Germany, in June 2007).63 Go to Justice and Rule of Law: Introduction
This complementarity can be defined as "the idea that the presence of some instruments can provide the necessary support for others--that transitional justice simply cannot be about the use of one approach or instrument in isolation."64 In fact, there are two levels of complementarity:
- the complementarity of transitional justice mechanisms or processes (trials, truth commissions, reparations, vetting, amnesties); and
- the complementarity between the levels of transitional justice (international, hybrid, national, local).
In practice, however, complementarity has proven very complicated and challenging. The experiences of post-conflict societies such as East Timor, Peru, Rwanda, Sierra Leone have not borne out the central assumption underpinning the present push for complementarity--the idea that the different transitional justice processes can support rather than obstruct one another. Indeed, complementarity is more than just about the existence of multiple transitional justice processes at multiple levels. It presupposes the presence of beneficial interaction among the types and levels of transitional justice.
Sequencing
A related and increasingly trendy topic is "sequencing." Indeed, as stated in the UN Secretary Generals report The Rule of Law and Transitional Justice in Post-Conflict Societies states, once complementarity is recognized, "the question, then, can never be whether to pursue justice and accountability, but rather when and how."66 Sequencing is a relatively new topic in transitional justice, and it is in part derived from the field of democratization, where it is a lively and contentious topic.67 Sequencing and complementarity are closely related but distinct approaches to transitional justice in post-conflict contexts. While complementarity is about the simultaneous existence of two or more transitional justice processes in a given context, sequencing is about the order in which transitional justice processes are undertaken.The appeal of sequencing derives in part from the widespread belief that, for a host of political and material reasons, post-conflict societies cannot undertake all types of transitional justice processes at the same time. It also stems in part from the idea that not all transitional justice mechanisms may exert a potentially salutary effect on peacebuilding at all times. Rather, some mechanisms, if implemented at inopportune moments, may actually undermine the prospects of sustainable peace. This observation is usually advanced in reference to criminal prosecutions, especially in the immediate post-conflict period. As such, advocates of "sequentialism" contend that post-conflict states would do well to arrange their transitional justice efforts in such a way that enhances, rather than undermines, the consolidation of peace. The conventional idea is that post-conflict societies should sequence activities in the following order: (1) secure the peace; (2) uncover the truth, (3) implement justice (accountability) processes; and then provide for (4) reparations and reconciliation.68 In this view, one strategy would be to provide amnesties or establish truth commissions (that is, less retributive and more restorative measures) in the immediate post-conflict period, when peace is often thought to be precarious, and to pursue criminal accountability once peace has been consolidated and the existing political order is less (or no longer) vulnerable to a return to violent conflict.
The sequencing model is borne out of some analyses of the experience of new democracies. As one study notes, "countries do not select either accountability or amnesty, but rather sequence their adoption of these transitional justice mechanisms over time and in relationship to shifting political climates."69 The same study also notes that "new democracies adopt transitional justice mechanisms in sequence. They begin with minimalist strategies and only later adopt moderate or maximalist ones. The timing of accountability measures suggests that the minimalists may accurately characterize the choice of transitional justice to be based on the potential risk of a political backlash, and not on the depth of the justice norm. On the other hand, the existence of that norm is pushing more and more democracies to adopt accountability mechanisms years after the transition is over. It thus appears that in many cases peace and justice can occur--peace leads and justice follows."70 The authors of another study that also supports the existence of sequencing write that "It is time to put false dichotomies behind us and begin a more nuanced debate about transitional justice. The choices are not between truth and justice, between trials and democracy, or between idealists and pragmatists. Instead it is much more interesting to examine under what conditions trials can contribute to improving human rights and enhancing rule of law systems, or what sequencing or judicious combination of transitional justice mechanisms can help build democracy and resolve conflicts."71
Sequencing seems to presuppose that transitional justice processes may be ordered in a neat and beneficial fashion. A key challenge to sequencing, however, is that, while the impact of such an approach is better known in post-dictatorial contexts, there is often a short time frame to properly assess post-conflict contexts in which the number of variables at work is also larger.
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The need to engender the field of transitional justice
Gender dimensions of transitional justice have, until recent times, been largely ignored. There is a growing literature on engendering transitional justice and more particularly truth commissions but still insufficient practical experience in this regard.72 Girls and women are usually rendered invisible or are marginalized within judicial processes, including war tribunals, when they seek justice in response to gender-specific violence. In the aftermath of armed conflicts, "gender injustice perpetuates inequality, violates fundamental human rights, hinders healing and psychological restoration, and prevents societies from developing their full potential."73 The general lack of access to justice for survivors of sexual assault is a major problem. Women and girls run also the risk of being "re-victimized" by the lack of adequate healthcare and support structures for assisting victims of sexual violence. "The shame and psycho-social stigma that survivors of rape suffer is another form of re-victimization. Thus, simply reaching out for help is problematic. Programs to assist survivors of sexual violence have to be designed so that women and girls can access them without that very help serving as another marker of victimization."74
Go to Human rights promotion and protection and Bibliography: gender and transitional justice
Two major issues are therefore generally stressed: the acknowledgement of and seeking justice for womens experiences of sexual violence in conflict situations; and the securing of increased representation of women in policy- and decision-making bodies on post-conflict issues and transitional justice mechanisms.75 Rule of law and justice structures in the recovering society must lay the foundations for long-term protection to women and retribution for any wrongs done to them. Identically, "truth commissions must ensure that issues of gender equality and gender-based violence are thoroughly addressed. To encourage women to seek justice, the composition of truth commissions and judicial panels must be gender balanced, and police and judiciary personnel properly trained, with the provision of safe space for testimony and evidence."76 But scholar and practitioner Nahla Valji also stresses the importance of going beyond these tenets to discuss the specific needs of women within post-conflict systems that are male-orientated, and examines the assumptions of the transitional justice field from a gendered perspective. She highlights "the need to move beyond a focus on individual incidents of sexual violence in conflict to addressing the context of inequality which facilitate these violations as well as the continuum of violence from conflict to post-conflict which becomes visible through a gendered analysis."77 In agreement with other colleagues who have recently published on the subject, she recommends engendering the field of transitional justice, a process which "will entail a fundamental rethinking of the goals, structures and foundational assumptions upon which the field is built as well as the future incorporation of a gendered perspective in all levels of planning and implementation."78
Go to Judicial and legal reform/(re)construction and Bibliography: gender and transitional justices
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The situation of former child soldiers and children's involvement in conflict and transitional justice mechanisms
The past decade has seen dramatic progress in the way the situation of former child soldiers and children's involvement in conflict and transitional justice mechanisms more broadly are approached. Separate disarmament, demobilization and reintegration (DDR) programs for under-18s and in the improvement in of family tracing and reunification programs have played a decisive role in that perspective. But from Sierra Leone to Nepal, DRC to Sudan and Sri Lanka, the complexities in applying the current models of accountability to a group in which many "were victims as well as perpetrators,"79 the differential impact of trauma, the legacies of violence remain insufficiently integrated in transitional justice practices.80 Most practitioners also stress the need to help children and youth construct a positive reality and fully participate and be empowered in the process. In various countries, youth organizations have also been involved in discussions about transitional justice mechanisms. For instance, in June 2004 a children's summit was held in Rwanda and "the children stated that Gacaca (traditional judicial system) did not include the participation of children. Children mentioned that they saw what happened during the genocide of 1994 and knew that some of the adults were not telling the truth. The children wanted to be involved as protected witnesses. As a result, UNICEF has been discussing child participation with the Ministry of Justice."81 Young individuals have also appeared as witnesses at the United Nations or tribunals of inquiry, such as the Northern Ireland youth delegation to the International Tribunal for Children's Rights in Colchester, UK, in 2000. These are "constructive examples of youth utilizing and developing their skills in meaningful peace building activity: in this case awareness-raising advocacy."82 The UN Secretary General has recently published a guidance note to that respect.83Go to Empowerment of Children and Youth
Interestingly, among the rare true "success stories" of reintegration and reconciliation of former child soldiers are those occasions where the communities themselves have utilized local resources in order to reinterpret traditions and rituals of reconciliation, forgiveness, and healing to support the healing and reintegration of former combatants, in particular former child soldiers. These communities generally approach return as a process not just of reintegration into the community, but as further reconciliation between families, clans and sub-clans which are integrally tied up in the reintegration and reconciliation process.84 In those ceremonies, children and young people are generally re-introduced in a local order (which may sometimes include a hierarchy) but they are not only treated as victims, and are rather considered as true actors and full members of the community.
Go to Trauma, mental health and psycho-social recovery case studies: Mozambique: Community reintegration of child soldiers and traditional rituals and Uganda: mato oput ceremonies
1. For a good summary of the debates in transitional justice, see Siri Gloppen, "Roads to Reconciliation: A Conceptual Framework," in Roads to Reconciliation, eds. Elin Skaar, Siri Gloppen, and Astri Suhrke (Lanham, MD: Lexington Books, 2005); for a critical assessment of the goals of transitional justice, see Bronwyn Ann Leebaw, "The Irreconcilable Goals of Transitional Justice," Human Rights Quarterly 30, no. 1 (February 2008): 95-118.
2. Oskar N.T.Thoms, James Ron, and Roland Paris, The Effects of Transitional Justice Mechanisms: A Summary of Empirical Research Findings and Implications for Analysts and Practitioners (University of Ottawa, Canada: Centre for International Policy Studies, April 2008), 9, 11-12.
3. Ibid.
4. For discussions about liberal peacebuilding, see Roland Paris, At War's End: Building Peace After Civil Conflict (Cambridge: Cambridge University Press, 2004); Oliver P. Richmond, "The Globalization of Responses to Conflict and the Peacebuilding Consensus," Cooperation and Conflict 39, no. 2 (2004): 129-150; Oliver P. Richmond, The Transformation of Peace (New York: Palgrave Macmillan, 2005).
5. Chandra Lekha Sriram, "Justice as Peace: Liberal Peacebuilding and strategies of transitional justice," Global Society 21, Issue 4 (October 2007), 579.
6. Rama Mani, "Rebuilding an Inclusive Political Community After War," Security Dialogue 36, no 4 (December 2005): 511-526.
7. Daniel Philpott. "Religion, Reconciliation, and Transitional Justice: The State of the Field." In SSRC Working Papers, 2007 and personal communication with the author, 14 November 2008.
8. For a summary of the purported benefits of criminal prosecutions, see David Bloomfield, Teresa Barnes, and Luc Huyse Reconciliation After Violent Conflict: A Handbook (Stockholm, Sweden: International Institute for Democracy and Electoral Assistance, 2003), 97-98.
9. For a critique of criminal trials, see Laurel E. Fletcher and Harvey M. Weinstein, "Violence and Social Repair: Rethinking the Contribution of Justice to Reconciliation," Human Rights Quarterly 24 (2002): 573-639; see also Helena Cobban, Amnesty after Atrocity? Healing Nations after Genocide and War Crimes (Boulder, CO: Paradigm, 2007); Helena Cobban, "Think Again: International Courts," Foreign Policy, May 8, 2006.
10. Naomi Roht-Arriaza, "The new landscape of transitional justice," in Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice, eds. Naomi Roht-Arriaza and Javier Mariezcurrena (Cambridge: Cambridge University Press, 2006), 7.
11. Comment by Nahla Valji, 28 November 2008.
12. See Cobban, Amnesty after Atrocity? Healing Nations after Genocide and War Crimes; see also Rama Mani, Beyond Retribution: Seeking Justice in the Shadows of War (Cambridge: Polity/Blackwell, 2002); and Fletcher and Weinstein, "Violence and Social Repair: Rethinking the Contribution of Justice to Reconciliation."
13. Eric Stover and Harvey M. Weinstein, "Conclusion: A Common Objective, A Universe of Alternatives," in My Neighbor, My Enemy: Justice and Community in the Aftermath of Mass Atrocity, eds. Eric Stover and Harvey M. Weinstein (Cambridge, Cambridge University Press, 2004), 323.
14. Fletcher and Weinstein, "Violence and Social Repair: Rethinking the Contribution of Justice to Reconciliation," 580.
15. Batrice Pouligny, "Building Peace in Situations of Post-Mass Crime," International Peacekeeping 9, no. 2 (Summer 2002), 201-20.
16. Kathryn Sikkink and Carrie Booth Walling, "The Impact of Human Rights Trials in Latin America," Journal of Peace Research 44, no. 4 (March 2007), 428.
17. For a compilation of analyses on the role of the ICC in the African context, see Nicholas Waddell and Phil Clark, eds., Courting Conflict? Justice, Peace and the ICC in Africa (London: Royal African Society, March 2008).
18. For a discussion about the so-called "Charles Taylor" effect, see Stephanie Nolen, "Africa's unjust deserts," Globe and Mail, June 14, 2008.
19. See Jack Snyder and Leslie Vinjamuri. "Trials and Errors: Principle and Pragmatism in Strategies of International Justice," International Security 28, no. 3 (Winter 2003/04): 544.
20. See, for example, Jack Snyder and Leslie Vinjamuri, "A midwife for peace," International Herald Tribune, September 26, 2006; see also Snyder and Vinjamuri, "Trials and Errors: Principle and Pragmatism in Strategies of International Justice."
21. Cobban, Amnesty after Atrocity? Healing Nations after Genocide and War Crimes.
22. Eric Brahm, "Uncovering the Truth: Examining Truth Commission Success and Impact," International Studies Perspectives 8, no. 1 (2006): 16.
23. See Martha Minow, Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence (Boston: Beacon Press, 1998), 52-90.
24. See Erin Daly, "Truth Skepticism: An Inquiry into the Value of Truth in Times of Transition," International Journal of Transitional Justice 2 (2008): 23-41; Brahm, "Uncovering the Truth: Examining Truth Commission Success and Impact," 16-35; David Mendeloff, "Truth-Seeking, Truth-Telling, and Postconflict Peacebuilding: Curb the Enthusiasm?" International Studies Review 6 (2004): 355-380; Leebaw, "The Irreconcilable Goals of Transitional Justice."
25. Daly, "Truth Skepticism: An Inquiry into the Value of Truth in Times of Transition," 23.
26. Ibid, 27-39.
27. Ibid, 25.
28. Bernard Doray and Jean-Clément Martin "Methodological and ethical problems: A trans-disciplinary approach," in After Mass Crime: Rebuilding States and Communities, eds. Batrice Pouligny, Simon Chesterman and Albrecht Schnabel (Tokyo/New York: United Nations University Press, 2007).
29. Daly, "Truth Skepticism: An Inquiry into the Value of Truth in Times of Transition," 27.
30. Mendeloff, "Truth-Seeking, Truth-Telling, and Postconflict Peacebuilding: Curb the Enthusiasm?" 356.
31. James L. Gibson, "Overcoming Apartheid: Can Truth Heal a Divided Nation?" Politikon 31, no. 2 (November 2004): 129-155.
32. Karen Brouneus, "Reconciliation and Development: Study Prepared for Workshop 8 -- 'Reconciliation,'" Building a Future on Peace and Justice, International Conference. Nuremberg, Germany (June 25-27, 2007), 8.
33. Judy Barsalou, Trauma and Transitional Justice in Divided Societies (Washington DC: USIP, 2005), 7.
34. Mendeloff, "Truth-Seeking, Truth-Telling, and Postconflict Peacebuilding: Curb the Enthusiasm?" 371.
35. Priscilla B. Hayner, Unspeakable Truths: Facing the Challenge of Truth Commissions (New York and London: Routledge, 2002), 6.
36. Daly, "Truth Skepticism: An Inquiry into the Value of Truth in Times of Transition," 31-32.
37. Tristan Anne Borer, "Truth Telling as a Peace-Building Activity: A TheoreticalOverview," in Telling the Truths: Truth Telling and Peace Building in Post-Conflict Societies, eds. Tristan A. Borer (Notre Dame, IN: University of Notre Dame Press, 2006), 43.
38. Ibid, 42-43.
39. Ellen Lutz, "Transitional Justice: Lessons Learned and the Road Ahead," in Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice, 339.
40. See Phuong Pham and Patrick Vinck, "Empirical Research and the Development and Assessment of Transitional Justice Mechanisms," International Journal of Transitional Justice 1, no. 2 (July 2007): 231-248. Hugo van der Merwe, Victoria Baxter, and Audrey Chapman, ed. (Eds.). Assessing the Impact of Transitional Justice: Challenges for Empirical Research. (Washington, DC: USIP Press Books, 2009).
41. Thoms, Ron, and Paris, The Effects of Transitional Justice Mechanisms: A Summary of Empirical Research Findings and Implications for Analysts and Practitioners, 14.
42. Ibid, 5.
43. Tove Grete Lie, Helga Malmin Binningsbo, and Scott Gates, "Post-Conflict Justice and Sustainable Peace," (Washington, D.C.: World Bank, Post-Conflict Transitions Working Paper No. 5, April 2007), 15.
44. Lutz, "Transitional Justice: Lessons Learned and the Road Ahead," in Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice, 339.
45. See Béatrice Pouligny, "The forgotten dimensions of transitional justice mechanisms: cultural meanings and imperatives for survivors of violent conflicts," paper presented at the "Global Justice, Local Legitimacy" International Conference, University of Amsterdam, January 2005; and also the contributions in After Mass Crime: Rebuilding States and Communities, eds. Béatrice Pouligny, Simon Chesterman and Albrecht Schnabel (Tokyo: United Nations University Press, 2007).
46. See for instance Barsalou. Trauma and Transitional Justice in Divided Societies.
47. Personal communication with Ana Patel, 24 November 2008.
48. Craig Timberg, "Sierra Leone Special Courts Narrow Focus," The Washington Post, March 26, 2008; for a more general critique, see Cobban, Amnesty after Atrocity? Healing Nations after Genocide and War Crimes.
49. United Nations Security Council, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies Report of the Secretary General, S/2004/616 (August 23, 2004), 9, para. 25.
50. Ibid, 7, para. 16.
51. Diane F Orentlicher, "Settling Accounts Revisited: Reconciling Global Norms with Local Agency," International Journal of Transitional Justice 1, no. 1 (2007): 18.
52. Cobban, Amnesty after Atrocity? Healing Nations after Genocide and War Crimes.
53. See Rosalind Shaw, "Memory Frictions: Localizing the Truth and Reconciliation Commission in Sierra Leone," International Journal of Transitional Justice 1 (2007): 183-207.
54. Tim Kelsall, "Truth, Lies, Ritual: Preliminary Reflections on the Truth and Reconciliation Commission in Sierra Leone," Human Rights Quarterly 27, no. 2 (2005), 363.
55. Ibid., 388.
56. See, for example, Hovil, Lucy and Joanna R. Quinn. Peace First, Justice Later: Traditional Justice in Northern Uganda. Kampala, Uganda: Refugee Law Project (RLP), July 2005; see also Joanna R. Quinn, "The Role of Informal Mechanisms in Transitional Justice," unpublished paper prepared for presentation on the panel, "Transitional Justice: Local and International Dimensions," at the Canadian Political Science Association Annual Meeting, 2 June 2005. For a general reference on the subject, see: Luc Huyse and Mark Salter, eds., Reconciliation and Traditional Justice after Violent Conflict: Learning from African Experiences (Stockholm: International Institute for Democracy and Electoral Assistance (IDEA), 2008).
57. Adam Branch, "International Justice, Local Injustice," Dissent (Summer 2004): 22-26.
58. Orentlicher, "Settling Accounts Revisited: Reconciling Global Norms with Local Agency," 19.
59. Graeme Simpson, "One Among Many: The ICC as a Tool of Justice in Transition," in Courting Conflict? Justice, Peace and the ICC in Africa, 73-80.
60. See, for instance, the African Transitional Justice Research Network.
61. Erin K. Baines, "The Haunting of Alice: Local Approaches to Justice and Reconciliation in Northern Uganda," International Journal of Transitional Justice 1, no. 1 (2007), 114.
62. United Nations Security Council, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, 8, para. 21.
63. Nuremberg Declaration on Peace and Justice, Building a Future on Peace and Justice, International Conference. Nuremberg, Germany, June 25-27, 2008.
64. Joanna R. Quinn, "Chicken and Egg? Sequencing in Transitional Justice: The Case of Uganda," Unpublished paper. Accessed through the Network of Transitional Justice Researchers, 12.
65. Roht-Arriaza, "The new landscape of transitional justice," in Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice, 8.
66. United Nations Security Council, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, 8, para. 21.
67. For discussions about 'sequencing' in the democratization literature, see Thomas Carothers, "The 'Sequencing' Fallacy," Journal of Democracy 18, no. 1 (January 2007): 12-27; see also Francis Fukuyama, Thomas Carothers, Edward D. Mansfield, Jack Snyder, Sheri Berman, "The Debate on 'Sequencing,'" Journal of Democracy 18, no. 3 (July 2007): 5-22.
68. Andrew Rigby, Justice and Reconciliation after the Violence (Boulder: Lynne Rienner Publishers, 2001), 186-188.
69. Andrew G. Reiter, Tricia D. Olsen, and Leigh A. Payne, "Behind the Justice Cascade: Sequencing Transitional Justice in New Democracies," Paper presented at International Studies Association conference (March 2008), 2.
70. Ibid, 24.
71. Sikkink and Walling, "The Impact of Human Rights Trials in Latin America," 443.
72. See the analysis suggested in Gender, Justice and Truth Commissions (Washington, DC: The World Bank, 2006), 14-15.
73.Susan McKay, "Women, Human Security and Peace-Building: A Feminist Analysis," in Conflict and Human Security: A Search for New Approaches of Peace-building, IPSHU English Research Report Series 19 (2004), 157.
74. Janie Leatherman, "Sexual Violence and Armed Conflict: Complex Dynamics Of Re-Victimization," International Journal of Peace Studies 12 no. 1 (2007): 53.
75. See Nahla Valji, "Gender, Justice and Reconciliation" (Berlin: Friedrich-Ebert-Stiftung (FES), November 2007).
76. UNDP, Empowered and Equal: Gender Equality Strategy (New York: UNDP, 2007), 27.
77. See Valji, "Gender, Justice and Reconciliation."
78. Ibid, 21.
79. Neil Boothby, "Working in the War Zone: A Look at Psychological Theory and Practice from the Field" Mind and Interaction 2 (1990), 30-36.
80. Personal communication with Nahla Valji, 28 November 2008.
81. Ruth Kahuranaga, "Children Affected by Armed Conflict: Child Rights Law vs. Compliance," Fourth World Congress on Family Law and Child Rights (Cape Town, South Africa: 20-23 March 2005), 23-24.
82. Siobhan McEvoy-Levy, "Children as Social and Political Agents: Issues in Post-Settlement Peace Building," Kroc Institute Occasional Paper #21 (December 2001).
83. UN Secretary-General, UN Approach to Justice for Children, Guidance Note of the Secretary-General, NY: United Nations, September 2008.
84. See for instance in the case of Northern Uganda: Aki Stavrou and Angela Veale, "Violence, Reconciliation and Identity the Reintegration of Lords Resistance Army Child Abductees in Northern Uganda" (Pretoria: Institute for Security Studies, 2003).
