Transitional Justice - Trends and Challenges

Trends and Challenges

States in times of transition to democracy, since the early 1980s, have been using a variety of transitional justice mechanisms as part of measures to account for the past and build a future democratic state. Mechanisms, such as trials, truth commissions, reparations, lustration, museums, and other memory sites have been employed either single-handedly or in a combined form to address past human rights violations. Diverse studies ranging from the decision-making process of a choice of strategy through to the implementation of the transitional justice policy and impacts on the transition and future stability of the society in question have been produced by scholars in recent years. But perhaps, one illuminating study that has documented the dramatic new trend of transitional justice and democratization is by Kathryn Sikkink and Carrie Booth Walling (2006). In their research paper described as the "justice cascade", Sikkink and Walling conducting analysis of truth commissions and human rights trials occurring throughout the world from 1979 to 2004 revealed a significant increase in the judicialization of world politics both regionally and internationally. Of the 192 countries surveyed, 34 have used truth commissions, and 50 had at least one transitional human rights trial.

More significantly, well over two-thirds of the approximately 85 new and/or transitional countries during that period used either trials or truth commissions as a transitional justice mechanism; over half tried some form of judicial proceedings. Thus, the use of a truth commission and/or human rights trials among transitional countries is not an isolated or marginal practice, but a very widespread social practice occurring in the bulk of transitional countries.

Since its emergence, transitional justice has encountered numerous challenges such as identifying victims, deciding whether to punish superiors or middle agents, avoiding a "victor’s justice", and finding adequate resources for compensation, trial, or institutional reform. Also, the transitional period may only result in a tenuous peace or fragile democracy. As has been noted in the discourse on transition to democracy, the dilemma has always been for new regimes to promote accountability for past abuses without risking a smooth transition to democracy. In addition, existing judicial system might be weak, corrupt, or ineffective and in effect make achieving any viable justice difficult. Observers of transitional justice application and processes, such as Makau W. Mutua (2000) emphasized on the difficulties of achieving actual justice through one of the most prominent mechanisms of transitional justice, trials. Commenting on the international tribunal established in Rwanda in 1994, he argued that it “serves to deflect responsibility, to assuage the consciences of states which were unwilling to stop the genocide... largely masks the illegitimacy of the Tutsi regime”. In sum, Matua argues that criminal tribunals such as those in Rwanda and Yugoslavia are “less meaningful if they cannot be applied or enforced without prejudice to redress transgressions or unless they have a deterrent effect such as behavior modification on the part of would be perpetrators”.

More recently, Lyal S. Sunga has argued that unless truth commissions are set up and conducted according to international human rights law, international criminal law and international humanitarian law, they risk conflicting or undermining criminal prosecutions, whether these prosecutions are supposed to be carried out at the national or international levels. He contends that this risk is particularly pronounced where truth commissions employ amnesties, and especially blanket amnesties to pardon perpetrators of serious crimes. On the other hand, criminal prosecutions should be better tailored to focus on victims and to place events in proper perspective. Sunga therefore proposes ten principles for making truth and national reconciliation commissions fully complementary to criminal prosecutions in a way that conforms fully to international law.

This type of critique of transitional justice mechanisms could cause some scholars and policymakers to wonder which of the objectives outlined above are most important to achieve, and even if they are achievable. Truth commissions could be characterized as a second-best alternative and also an affront to rule of law, because of the possibility that amnesty and indemnities will be made exchange for truth. These sets of challenges can raise critical questions for transitional justice in its application. Questions and issues, such as: Can the "truth" ever really be established? Can all victims be given compensation or a public platform? Can all perpetrators be held accountable? Or is it sufficient to acknowledge that atrocities were committed and that victims should be compensated for their suffering?

Also, one might argue that too narrow a focus on the challenges of the field runs the risk of making it seem meaningless. It aims at an ongoing search for truth, justice, forgiveness, and healing, however, and efforts undertaken within it help people to live alongside former enemies. Simply put, “the past must be addressed in order to reach the future”. Thus, even if the impact or reach of transitional justice seems marginal, the end result is worth the effort.

Another way of assessing attempts at transitional justice is to say that decisionmakers may have less control over the methods used to pursue such policies than they imagine. In fact, whatever their wishes, they may not be able to prevent such policies at all. As A. James McAdams has demonstrated in his book, Judging the Past in Unified Germany (2001), West German policymakers such as former chancellor Helmut Kohl wanted to close public access to the files of East Germany's secret police, the Stasi but pressures from East German dissidents prevented them from doing so.

Another challenge is the tension between peace and justice, which arises the conflicting goals of achieving peace and justice in the aftermath of a society’s emergence from conflict. Though it is generally unanimous that both goals are integral to achieving reconciliation, practitioners often disagree about which goal should be pursed first: justice or peace? Proponents of the “justice” school of thought argue that if all perpetrators of human rights abuses do not stand trial, impunity for crimes will continue into the new regime, preventing it from fully completing a transition from conflict. The "peace" school of thought, however, argues that that the only way to effectively end violence is by granting amnesties and brokering negotiations to persuade criminals to lay down their arms. Examples such as Northern Ireland illustrate how selective amnesties can cease conflict.

Recent trends in the post-conflict field have tended to favor the “justice” school of thought, maintaining that only if justice is dutifully served to victims of the conflict can civil war will be prevented from recurring. A 2011 debate in The Economist determined in its concluding polls that 76% of the debate participants agreed with the motion that achieving peace can only occur through implementing justice mechanisms.