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The Concept of Transitional Justice (Part Two)

By Nichola Dominic Mandil

In the first episode on transitional justice, we looked at the “origin and concept” of transitional justice. In this second episode, we shall look at the context, which includes; political, social and legal conditions.

Before going further, let us deepen the understanding of transitional justice by looking at how experts explain the concept of this process in simple terms. Conflict experts argue that transitional justice is not the way to fix everything that is wrong in the society.

They say the long-term social and political struggles for justice and equal opportunities might be assisted by measure of transitional justice but not solved by it. They further say transitional justice is not a particular type of justice like restorative justice, distributive justice or retributive justice.

In a nutshell, the experts say transitional justice is the application of a human rights policy in particular circumstances. They also say transitional justice is not “soft justice”. It is the attempt to provide the most meaningful justice possible in the political conditions at the time. If it is simply an effort to evade meaningful measures of justice it is then what they dub “sophisticated impunity.”

As we learned, it is important to take the time to carry out the necessary analysis and ensure that what is done responds to an informed understanding of the conditions in the country where there is need for justice in the aftermath of an armed conflict like in South Sudan. All these conditions dictate what need to happen in order to impact the procedures of transitional justice.

In transitional justice process, getting interventions right is paramount because of the constraints of scale, fragility which will sometimes be prudent not to try to do too many things at the same time. For that reason, there are stages in transitional justice procedures.

Avoiding transitional justice or delaying its process is equal to the famous legal saying, “justice delayed is justice denied”. In the eventuality of where transitional justice is delayed, there is need for the stakeholders to speak out and vindicate the delay.

They also need to ensure that the suspects or perpetrators don’t escape justice, because once transitional justice is delayed, some people who would be implicated when time comes for them to face justice would have  escaped, take refuge in other countries or some would have even passed on(died) and some victims would have even disappeared.

The argument here is that it is urgent that transitional justice is undertaken and justice is done to those who deserve it(victims) because they (the victims) of the conflict cannot wait, they need justice urgently so much that they heal the wounds their hearts sustain as a result of the heinous crimes committed against them and their loved ones.

Another approach in the transitional justice is participation in the process. The opportunity to address massive human rights violations signals a potentially important part in the life of any country that might have experienced armed conflict like in South Sudan.

Participation brings the possibility of openness, and new attitudes, an opportunity to engage sectors of the society, including women (the most vulnerable as we often call them) and others who have been excluded.

Conflict analysts argue that the value and sustainability of justice efforts in this context depends significantly on the participation of people beyond political and economic power structures.

It means getting beyond elite compacts and vested interests; it requires that victims and others from marginalized groups take part in the determination of how best to redress massive human rights failures to make the future safer for them.

Conflict analysts also suggest that what they call “contextual analysis” meaning getting interventions right for that context, promoting participation and innovation are the elements that they say underpin the idea of a context-driven approach to transitional justice.

In normal circumstance where peace processes seeking to end an armed conflict like the four-year-old conflict in South Sudan, parties to the conflict, or commonly known as “warrying parties” during negotiations or peace talks and others involved in the negotiations may seek to incorporate justice issues as part of the peace agreement in order to end the conflict.

Sometimes these reflect the demands of civil society and victims’ groups working on justice issues. Examples include Colombia, Guatemala, El Salvador, Sierra Leone, Democratic Republic of Congo(DRC), Liberia, the Philippines, Nepal, and the latest example being quoted world-wide these days is South Sudan, and other countries.

In some of these cases the armed conflict has taken place alongside violations of a deeply repressive regime. New governments replacing repressive regimes may also introduce and support different kinds of justice policies for mass atrocities. Examples include Argentina in the 1980s, Chile and South Africa in the 1990s, Peru and Tunisia more recently.

Chapter five of the August 2015 Agreement on the Resolution of the Conflict in the Republic of South Sudan(ARCSS), deals with transitional justice in South Sudan in the aftermath of the deadly 2013 conflict, which led to the killings and displacement of many South Sudanese.

This chapter is on the waiting list within the context of the implementation of the ARCSS. It is one of the most important chapters that need to be urgently implemented as the country battles with time as the transitional period is swiftly coming to an end in few months.

TRANSITIONAL JUSTICE ACCORDING TO ARCSS: 

As stated previously, in the last part of this article we will talk about Transitional Justice according to ARCSS.  Chapter Five of ARCSS deals mainly with this subject matter, which include; transitional justice, accountability, reconciliation and healing.

The ARCSS states that the agreed Principles for Transitional Justice as follows: that upon its inception, the Transitional Government of National Unity (TGoNU) shall initiate legislation or law for the establishment of the transitional justice institutions

 

These institutions include; the Commission for Truth, Reconciliation and Healing (CTRH); an independent hybrid judicial body, to be known as the Hybrid Court for South Sudan (HCSS), which central to the transitional justice process. Another important institution is Compensation and Reparation Authority (CRA).

 

The legislation referred to in Article 1.1, shall clearly define the mandate and jurisdiction of the three institutions including but not limited to their establishment and funding, actors, and defined processes for public participation in the selection of their respective members.

 

The agreement states that following their establishment, the three transitional justice institutions namely; “CTRH”, “HCSS” and “CRA” shall independently promote the common objective of facilitating truth, reconciliation and healing, compensation and reparation in South Sudan.

 

The peace agreement mandates the TGoNU to fully support and facilitate the operations of the CTRH and cooperate with the HCSS, and to commit itself to fully cooperate and seek the assistance of the African Union (AU), the United Nations (UN) and the African Commission on Human and People’s Rights to design, to implement and to facilitate the work of the agreed transitional justice mechanisms provided for in this Agreement.

 

In our next episode of peace-building, we shall talk about the process of establishment of these transitional justice institutions and their functions. Peace be with you!

 

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