Transitional Justice Forum

On returning to first principles, part 1

This is a forum on transitional justice or, as its founder has stated, "the challenges of justice during transitions to a better world." The creation of a forum on this topic presupposes an agreement on exactly what transitional justice is. It's far from clear, however, that any such agreement exists, which means that the function of this forum must be not only to discuss transitional justice issues but to return to first principles and determine what the transitional justice field encompasses.

No less an institution than the International Center for Transitional Justice acknowledges that there is no firm consensus on the definition of the term. In a 2004 address in Ottawa, ICTJ president Alex Boraine noted some of these disagreements:

Some prominent scholars have rejected the term itself, preferring instead to speak of post-conflict justice. But “post-conflict justice” doesn’t address the complexities and processes of political transitions, whether through conflict, negotiation, or state collapse. Certainly it would exclude our transition from apartheid in South Africa. For while we did experience low-level, horrific violence, apartheid’s violent strategies never amounted to conflict per se.

Others define transitional justice as an extension of regular criminal justice systems that rely exclusively on legal remedies to rectify grievances. This fails to account for the limits of law, particularly in cases of mass crimes such as genocide, ethnic cleansing, and crimes against humanity. In trying to come to terms these types of crimes, not only does our moral discourse appear to reach its limit, but it also emphasizes the inadequacy of ordinary measures that usually apply in the field of criminal justice.

In many cases, the definition of "transitional justice" is simply assumed, and most such treatments tend to focus on accountability. The two classic transitional justice mechanisms - the war crimes tribunal and the truth commission - both advance accountability in different ways. Criminal prosecution brings individuals to account for their deeds through judicial findings and imposition of punishment. Truth commissions hold entire societies to account by chronicling past abuses, hearing testimony from the victims and forcing the perpetrators to make full confession as the price of immunity.

The ICTJ formulation of transitional justice is consistent with the focus on accountability. Indeed, the ICTJ's mission statement is to "assist countries pursuing accountability for past mass atrocity or human rights abuse." The means by which it does so are divided into "five main areas... prosecutions, truth-telling, reconciliation, reparations, and institutional reform."

A focus on accountability to the exclusion of other components of democratic transition, however, may be too narrow a conception of transitional justice. The term "justice" itself has many possible meanings. One of them - possibly the one that most often comes to mind when the word is uttered - is legal justice: the use of legal procedures to collect evidence, make findings of fact and impose remedies. But legal justice is a means rather than an end, and its purpose is to advance substantive justice: to achieve an outcome that is fair and equitable to all parties. Transitional justice can be viewed in either of these terms, but broadly conceived, it encompasses all efforts to transform a society that is less fair and equitable into one that is more so. Transitional justice, in other words, is the study of just transitions.

As such, the topic of transitional justice involves far more than holding individual criminals or corrupt societies to account. Transitional justice means fairness to the victims: addressing their psychological traumas, restoring their nationality and civil rights, resolving their property claims and providing them with an opportunity for closure and memory. Transitional justice means fairness to the perpetrators, who themselves have a moral right to be called to account for their actions and assisted in rehabilitating themselves. And transitional justice means fairness to society, cleaning up the damage left by the period of abuse.

The damage suffered by abusive societies is far more than the sum of the injuries to the individual victims. An unjust society damages the rule of law and destroys the institutions and norms through which people can govern themselves and resolve disputes peacefully. Unjust societies ignite and inflame conflicts between social classes and religious and ethnic groups, which continue long after the policies that gave rise to them. Societies of this kind commonly pursue reckless economic and environmental policies that replace the independent private sector with crony capitalism and strip the country's resources (especially in poorer and politically powerless regions) for the benefit of the well-connected. This can have long-term impact on a country's public health, food security and ability to rebuild a functioning economy, all of which are crucial to making a successful transition to democratic self-rule.

Transitional justice must therefore include the resolution of the social injustices left over from the pre-democratization period. Environmental cleanup is as much a transitional justice issue as prosecution for crimes against humanity, and the establishment of a level economic playing field and impartial dispute resolution system are as much so as dealing with the traumas of the survivors. Also, as Dr. Boraine noted, transitional justice includes not only the resolution of the immediate problems caused by unjust regimes but the creation and reform of institutions to ensure that the transition becomes permanent. Any and all of these things can, and should, be the focus of this forum.