Origin and Concept of “Transitional Justice” (Part One)
By Nichola Dominic Mandil
Before we embark on the subject matter of this episode of peacebuilding, allow me to introduce to you the subject. It is transitional justice which refers to the way countries that are emerging from periods of conflict and repression address large scale or systematic human rights violations so numerous and so serious that the normal justice system will not be able to provide an adequate response.
Transitional Justice in context of South Sudan
Chapter five of August 2015 the Agreement on the Resolution of the Conflict in the Republic of South Sudan (ARCSS) talks about Transitional justice in the country. We will talk more about this chapter in details in the coming episodes.
Transitional justice is rooted in accountability and redress for victims. It recognises their dignity as citizens and as human beings. Ignoring massive abuses is an easy way out but it destroys the values on which any decent society can be built.
Transitional justice asks the most difficult questions imaginable about law and politics. By putting victims and their dignity first it signals the way forward for a renewed commitment to make sure ordinary citizens are safe in their own countries – safe from the abuses of their own authorities and effectively protected from violations by others.
According to peace and conflict analysts, in conflict situations, mass atrocities and systematic abuses devastate societies and their legacy is likely to make conditions of the country fragile: political and legal institutions like parliament, the judiciary, the police and the prosecution service may be weak, unstable, politicised and under-resourced.
The violations themselves will have severely damaged whatever confidence might have existed in the state to guarantee the rights and safety of citizens. And communities will often have been ripped asunder in the process and social or political organisations greatly weakened.
Finding legitimate responses to massive violations under these real constraints of scale and societal fragility is what defines transitional justice and distinguishes it from human rights promotion and defense in general.
The aims of transitional justice vary depending on the context but these features are constant: the recognition of the dignity of individuals; the redress and acknowledgment of violations; and the aim to prevent them happening again.
Complementary aims may include: establishing accountable institutions and restoring confidence in them. These institutions we will talk about them in detail in the coming episodes as we tackle this important component of ARCSS.
Making access to justice a reality for the most vulnerable in society in the aftermath of violations, ensuring that that most vulnerable–women especially and marginalized groups play an effective role in the pursuit of a just society, respect for the rule of law, facilitating peace processes, and fostering durable resolution of the conflicts, stablishing a basis to address the underlying causes of the conflict and marginalisation, advancing the cause of reconciliation.
Components of Transitional Justice
Usually in the aftermath of an armed conflict, and because of the number of violations and context of societal fragility not every violation will be dealt with as it might be in normal times.
Traditionally a great deal of emphasis has been put on four types of “approaches”; criminal prosecutions for at least the most responsible for the most serious crimes, truth-seeking” or fact-finding processes into human rights violations by non-judicial bodies. These can be varied but often look not only at events, but their causes and impacts.
Another important aspect of transitional justice is reparations for human rights violations taking a variety of forms: individual, collective, material and symbolic. In chapter five of ARCSS, this is referred to as “Compensation and Reparation Authority. We shall talk about this in detail in South Sudan context.
Another important aspect of transitional justice is reformation of laws and institutions including the police, judiciary, military and military intelligence in order to help smoothen and expedite the process itself.
Legal experts on transitional justice argue that these different approaches should not be seen as alternatives for one another. For example, truth, healing and commissions are not a substitute for prosecutions.
They argue that these institutions try to do something different from prosecutions in offering a much broader level of acknowledgment and limiting the culture of denial. Likewise, reform of constitutions, laws and institutions are not an alternative for other measures but aim directly at restoring confidence and preventing the recurrence of violations.
Legal experts who deal with transitional justice, say it is important to think innovatively and creatively about these approaches and about other possibilities. For example, truth commissions and fact-finding commissions of inquiry looked into issues of endemic corruption of prior regimes in a way that did not occur in similar bodies, years back.
In some circumstances it is possible to take significant steps through commissions and law reform initiatives to address deeper issues of marginalisation. For example, law reform initiatives in Sierra Leone significantly improved the legal status of women in the early 2000s.
An imaginative attempt in South Yemen to address massive land and property expropriation was cut short due to resurgence in violence but indicates that even complex land issues can sometimes be addressed in transitional justice contexts.
Not only is it important to think creatively and innovatively about the established ways of addressing massive violations of human rights, there are also important issues to bear in mind that help increase the chances of meeting the aims of transitional justice.
In the next episode, we shall continue with components and more examples on transitional justice before we embark more aggressively on transitional justice in the South Sudan’s context.