Morung #1 Transitional Justice in Conflict Resolution

THE MORUNG EXPRESS
http://www.morungexpress.com

COMMENTARY
Transitional Justice in conflict resolution
by Patrick J. Pierce

Transitional Justice is a relatively new term, and regardless of what field it gets placed in – law, anthropology, human rights, sociology, and international relations – like "peace" and "reconciliation" the topic is most relevant for societies that have experienced severe conflict. The field of Transitional Justice has benefited from the information exchange that has come with globalization, and once isolated societies can now learn lessons from other societies that have endured military rule, ethnic conflict, and a litany of human rights violations … and then come out on the other end trying to build a just and democratic society. While each society has its unique aspects, one general lesson seems to be universal: that if the legacy of human rights violations is not addressed, a society will fail to achieve justice and reconciliation.

In this first monthly column on Transitional Justice, I will define Transitional Justice more clearly and introduce the mechanisms that societies have employed to achieve justice following major conflict.

Transition deals specifically with the development of a democratic society after war or authoritarian rule. Societies are constantly changing, and changes on a relatively small scale occur in democracies when there is a shift in political leadership. A far more significant transition occurs when a society changes not only its leaders but its type of government. A move from authoritarian to democratic rule is full of difficult challenges about how to deal with the legacy of past abuses, but it is also ripe with hope for creating a better society based on the will and vision of the people.

Truth, in the Transitional Justice context, deals with the human rights abuses of the past. At the most basic level, it is about factual truth – who did what to whom. But it gets more complicated with questions of how and why abuses were committed. For many people, the truth about what they have suffered is well known to them and others in their communities. What becomes important in a transition is for that truth to be acknowledged in an official way. Such acknowledgement, a kind of "healing truth," often has been the salve a society needs for reconciliation. When the truth of someone’s suffering is not acknowledged, or worse, denied, the conflicts of the past are bound to haunt the present day.

Justice in this context also is related specifically to past human rights abuses. Just as societies use particular mechanisms to address issues of criminal and social justice, countries in transition also create specific Transitional Justice mechanisms to deal with past human rights abuses. A society in transition will have to address other forms of justice as well. Through criminal justice mechanisms and institutions, such as the court system and the police force, the society will have to address non-political crimes such as theft and murder. To create equality across a diverse population, a society will use social justice mechanisms, such as governmental education and health ministries, to institutionalize justice.

Transitional Justice is related specifically to past human rights abuses – how to deal with a legacy of suffering. While Transitional Justice overlaps with the categories of criminal and social justice, its focus is specifically on the unique legacy of past human rights abuses. Are there any consequences for the perpetrators? If victims are still suffering from the violations they’ve suffered, is there anything that can be done to assist them? How will the past be remembered and acknowledged? Transitional Justice mechanisms provide forums for addressing these kinds of issues.

At first glance, Transitional Justice may seem to be a choice between revenge and impunity. In the past, authoritarian regimes have insisted on a blanket amnesty before they would transfer power to a democratic government. An amnesty is a provision by which a person becomes legally free from prosecution for any alleged criminal behavior, and a blanket amnesty restricts any inquiry into the past abuses. This tendency to impose a forgive-and-forget approach usually has led to further conflicts and renewed conflict over the past. A vengeful approach – killing past perpetrators through "victor’s justice" often perpetuates the cycle of violence and hinders reconciliation in a society. By considering the following five Transitional Justice mechanisms – investigations, prosecutions, civil sanctions, reparations, and commemorations – a more complex and nuanced view of Transitional Justice emerges. For example, conditional amnesty can be granted to a perpetrator. The conditions vary in different countries, but, for example, a perpetrator may only be granted amnesty if s/he provides full disclosure about past human rights violations and if those violations were not extreme in nature. If these conditions are not met, the perpetrator may be prosecuted. Used in varying combinations, these mechanisms enable a society to seek truth, gain justice, and put an end to impunity.

Investigations form the basis for all other Transitional Justice mechanisms by establishing an accurate historical record – the truth – about what happened in the past. Investigations take many forms. One is a truth commission, a forum providing victims and perpetrators the opportunity to give public or private testimony about the past. The search for missing people and the exhumation of bodies from mass graves also constitute investigations. Many countries also have relied on the previous government’s own files to learn the truth about the past.

Civil Sanctions are steps to restrict the role former perpetrators may have in society, such as purging the military and barring perpetrators from public office or government work. Through such acts, a society may guard against continued abuses without the threat of incarceration for the perpetrator. Because of the potential efficiency of such measures, civil sanctions are usually used to deal with a high number of low- and mid-level perpetrators, using a lower standard of due process.

Commemorations or "symbolic reparations" function as public reminders of past abuses and are used in the hope that by remembering the past, future abuses can be averted. In this way, commemorations "repair" a past wrong in a public, symbolic way. Commemorations also help establish a collective understanding of the victims’ identities as victims or survivors – people who suffered unjustly – rather than as insurgents or enemies of the state as they may have been cast by the previous non-democratic regime. Effective commemorations also draw attention to the legacy of abuses and call on the public to guard against a recurrence of authoritarian rule.

Through varying combinations of these five mechanisms, a growing number of societies are seeking to address their legacies of human rights violations. Germany is still dealing with its Nazi past, as Holocaust survivors continue to seek reparations and concentration camp guards’ identities get uncovered, even 60 years later. In Zimbabwe and Burma, still under authoritarian rule, the leaders must be cowering as they read news of former Serbian president Slobodan Milosevic standing trial in The Hague and former Chilean dictator Augusto Pinochet losing his immunity from prosecution, as well as the assets in his secret bank accounts. And when those gains are made, the people of Nagaland, Burma, and Zimbabwe have cause to celebrate along with the people of the Balkans and Chile.

(Patrick J. Pierce is the Transitional Justice Program Director at the Human Rights Education Institute of Burma (HREIB) and editor of the "Transitional Justice in the News" newsletter of the International Center for Transitional Justice (ICTJ). He received his Master of Arts in Applied Anthropology from American University in Washington, DC and has been working on Burma-related human rights issues since 1998. This is the monthly column on Transitional Justice by Patrick Pierce. This month’s column is more of an introductory to the issue of Transitional Justice. The following monthly columns will be focused on more current issues.)