Transitional Justice: Getting to the Basics

1. Transitional Justice: Getting to the Basics Assist.Prof.Dr. Jared O. Bell Visiting Scholar, University of the Gambia

2. How Do you Define Transitional Justice? • In your own words, how do you define transitional justice? • What are some Transitional Justice Contexts that you may know of?

3. What is Transitional Justice? • Transitional Justice is a response to systemic or widespread violations of human rights. It seeks recognition for victims and promotion possibilities for peace, reconciliation, and democracy. • Transitional justice is not a form of justice, but justice adapted to societies transforming themselves after a period of pervasive human rights abuses. (International Center for Transitional Justice, 2009, p. 1)

4. Brief History • The origins of the transitional justice field can be traced back to the post-World War II period in Europe with the establishment of the International Military Tribunal at Nuremberg and the various de-Nazification programs in Germany and the trials of Japanese soldiers at Tokyo Tribunal. • These trials extended by the victorious allied forces doled out criminal justice to Japanese and German soldiers and their leaders for war crimes committed during the war, marked the genesis of transitional justice.

5. Brief History (Cont.) • The field gained momentum during the 1980s and onwards, beginning with the trials of former members of the military juntas in Greece (1975), and Argentina (Trial of the Juntas, 1983). • The focus of transitional justice in the 1970s and 1980s was on criminal justice with a focus on human rights promotion.

6. Pillars of Transitional Justice • Truth ( Finding out what happened and why?) • Justice (Give closure to victims, Acknowledge crimes, bring perpetrators to justice) • Reparation ( repair harms to individuals and communities) • Guarantees of Non-Recurrence (ensuring peace and reconciliation, institutional reforms) Can other things be added? If so why?

7. Political Dimensions • Truth telling, justice seeking, and reconciliation are inherently political processes heavily influenced by conflicting interests and access to resources (Barsalou, 2005).

8. Influences on Transitional Justice • How those in power define their interests • Restoration of basic security • The institutional, professional, financial, and cultural resources at the disposal of the affected country • The extent to which the international community is interested and involved. (Barsalou, 2005)

9. Peace Versus Justice Debate • “Of the many challenges that arise when negotiating a transition to peace and an end of war, one of the most difficult can be the tension between prioritizing peace and insisting equally on justice for crimes of the war. Should peace take precedence over justice in situations involving massive human rights violations and war crimes?” (International Center for Transitional Justice, 2009, para.1)

10. Three Main Approaches to Transitional Justice • Retributive Method • Restorative Method • Reparative Justice What do you think these things mean?

11. Retributive is…. • The theory of retributive justice emphasizes the need to hold perpetrators accountable and ensure some form of punishment for their crimes. • The central idea is that the offender has gained unfair advantages through his or her behavior, and that punishment will set this imbalance straight (Maiese, 2003, para.1).

12. Retributive Mechanisms • Prosecution and sentencing domestic courts and special tribunals, international tribunals, in joint international and domestic tribunals or in foreign courts (Schuttenberg, 2008, p.3).

13. Example: International Criminal Court for the Former Yugoslavia • T he International Criminal Tribunal for the former Yugoslavia or ICTY established in 1993, is a body of the United Nations established to prosecute serious crimes committed during the Yugoslav Wars, and to try their perpetrators. The tribunal is an ad hoc court which is located in The Hague, Netherlands.

14. Positives and Negatives Positive Negative May cause even more divisions. Determining who to punish can be tricky. • My help victims find closure • Establishes a new sense of rule of law • My serve as a deterrence for further communal violence

15. Restorative Justice is…. • Restorative justice is a conflict theory of justice that emphasizes repairing the harm caused by criminal behavior. It is best accomplished when the parties themselves meet cooperatively to decide how to do this, thus leading to transformation of people, relationships and communities (Prison Fellowship International, n.d., p.1).

16. Positive and Negatives Positive Negative Maybe seen as trivializing mass atrocities. Victims may not feel vindicated. May not help to establishing rule of law or respect for rule of law in post-conflict situations. • Helps restore victim offender relationships • Puts a greater context on understanding the crimes and their impact. • More future oriented of a process.

17. Restorative Mechanisms • Truth Commissions • Victims-Offender Circles • Amnesties

18. Example: South Africa Truth Commission • The Truth and Reconciliation Commission (TRC) was a court-like  body assembled in South Africa after the abolition of apartheid in 1994. • Witnesses who were identified as victims of gross human rights violations were invited to give statements about their experiences, and some were selected for public hearings.

19. Reparative Justice is….. • Reparative Justices aims to acknowledge the legal obligation of a state, or individual(s) or group, to repair the consequences of violations — either because it directly committed them or it failed to prevent them (ICTJ, 2018)

20. Example: Morocco Following Years of Lead • The Moroccan government at the behest of Equity and Reconciliation Commission decided to award reparations to those who suffered during the “Years of Lead” under King Hassan the second. • Within 18 months, the commission had distributed $85 million USD to between 9,000 and 16,000 individuals. The government developed community reparations programs, which included the cooperation of 250 organizations, both governmental and non-governments. • As of 2009, the government had distributed $2.57 million USD to various communities across Morocco as a part of this program. (United States Institute of Peace, 2018)

21. Mechanism of Reparative Justice • Direct Payments to victims • Community development projects for communities impacted • Social-Psycho-rehabilitation • Memorials/ Monuments • Public holidays • Official Apologies • Official Acknowledgments

22. Positive and Negatives of Reparative Justice Positives Negatives Quantifying suffering is hard to do. Deciding who should reap the benefits of a reparations program is tough. Reparations programs maybe too expensive to implement for transitioning states. Symbolic reparations are controversial. • Material reparations may help people rebuild their lives and communities. • Victims may feel vindicated. • Those with emotional and psychological scars may be able to get the treatment they need. • Memorials and other symbolic reparations may help victims or their loved ones feel acknowledge

23. Approaches Connected to Goals Source: S. Parmentier and K. Vanspauwen, 2006

24. Global Prevalence of Transitional Justice Mechanisms (Olsen, Payne, Reiter ,2010.p.39)

25. Hybrid Approaches • There maybe hybrid approaches to Transitional Justice as well. • Transitional Justice Mechanisms can be both retributive and restorative. • No one approach will be a panacea for the healing a post-conflict society.

26. Other Elements to Consider • Structural/Institutional Reform • Transforming legal frameworks • Oversight • Disarmament, demobilization, and reintegration • Education

27. Hybrid Approach Example: Rwanda • To respond to the crimes committed in Rwanda an International Tribunal was established in Tanzania in 1994 and closed in 2015. • Crimes were also tried in domestic courts. • Besides the judicial mechanisms Rwanda also employed community based  Gacaca courts, which brought victims and offenders together to face the past.

28. Which Approach is Better? • From your own opinion which do you think is better thus far?

29. Dilemmas to Consider in Transitional Justice • How do we assign justice that is translatable to everyone? • What is truth? How can we develop a sense of truth that tells everyone’s story? • How do we counter the reality versus expectations of transitional justice • How do we measure the impact of transitional justice mechanisms?

30. Questions? • Please any ask feel free to ask any questions or comments you may have!