Transitional justice is most often viewed in terms of single countries, or more specifically, the mechanisms by which societies emerging from a destructive period reach and implement a balance between accountability and reconciliation. However, transition is not always a single-country affair. The aftermath of a multi-party war, or even a civil conflict in which outside countries played a role, is also a transitional period, and poses many of the same issues of justice and peace-building. Given the special status accorded to states under customary international law, however, transition across borders can be especially challenging, especially where the rights or interests of the people of one country conflict with those of another.
Three recent cases, two of them involving warfare between states, point up the difficulty of achieving equity in this situation. On December 19, 2005, the Ethiopia-Eritrea Claims Commission, operating under the auspices of the Permanent Court of Arbitration at The Hague, ruled that Eritrea was guilty of aggression against Ethiopia and was liable for damages caused by the war. On the same day, the International Court of Justice issued a binding decision in the Democratic Republic of Congo's claim against Uganda, holding that the latter was an occupying power during the Congolese civil war and is therefore liable for human rights violations in the Ituri province. Both decisions have sound basis in law. However, they also open Uganda and Eritrea to damages potentially totaling in the billions of dollars, which they and their people can ill afford.
The potential effect of these rulings can be illustrated by the DRC's claim that it is entitled to $8 to $10 billion in compensatory damages. This is 130 to 150 percent of Uganda's GDP and, as the Kampala Monitor pointed out in the wake of the ICJ judgment, fourteen times its annual revenue collection:
Given the fact that Ugandás foreign debt stands at over $4 billion, (the recently announced debt relief can take several years to implement, according to donor sources) the amount the country would have to compensate the DRC would treble the total debt burden. Currently Uganda spends about $200 million per year to service the debt, and at that rate would need 50 years to pay off the Congo fine without paying any of the other creditors. If all Ugandás tax and non-tax revenue totaling to $700 million per year were to be devoted to paying off the Congo fine, it would take the country 14 years without the government buying a single aspirin or paying a single worker.
Seen another way, the amount Congo wants in compensation is enough to build at least 20 power dams of Bujagalís size. Consequently, each of the 27 million Ugandans, including babies in the IDP camps in the north must contribute Shs680,000 to the compensation bill. Added to the existing debt, every Ugandan would now be owing a million shillings to external creditors.
In other words, while the Congolese have unquestionably suffered damages, the remedy to which they are entitled could potentially beggar a neighboring country that is itself poor and going through a transitional phase. The same is likely to result from the DRC's pending claim against Rwanda (concerning which the ICJ has yet to rule) as well as the war claims against Eritrea. In all three countries that have been or are likely to be found liable, the people had little or no say in the decision to go to war, but it is they who might now suffer for their governments' misdeeds.
Another developing situation that illustrates the challenges of international transitional justice is today's inauguration of an elected president and legislature in Liberia. The inauguration, which followed successful elections last October, marks a turning point in Liberia's recovery from devastating civil war and misrule. However, difficult decisions about how to deal with the war's legacy still face the new government, and those choices are likely to be complicated by the similar transition process in neighboring Sierra Leone.
The Sierra Leoneans, who are recovering from its own civil war, began their transitional process a couple of years before the Liberians did, and have opted to empanel a special court to try those who committed war crimes during the conflict. Among those indicted by the court is Charles Taylor, who is accused of assisting certain Leonean armed factions while president of Liberia. The trouble here is that Liberia has not yet decided whether to choose war crimes trials or a general amnesty, and given the power of Taylor associates in the new legislature, its government will face pressure to go the amnesty route and invite Taylor home. So Liberia now faces a catch-22: if it gives amnesty to Taylor, then it will impair the Sierra Leoneans' right to justice and come into conflict with the United Nations, but if it doesn't grant amnesty, then its own democratic transition may be in danger.
It isn't at all clear whose rights should prevail in these circumstances, and the only certain thing is that the proposed cures might prove to be worse than the disease. Moreover, the ordinary methods by which citizens can make democratic choices between accountability, reconciliation and recovery aren't available in the international context, and the ability of diplomatic processes to balance these considerations is untested. Given the interests at stake where transitional justice issues cross borders, the international community may have to get involved in the negotiation and funding of remedies if it wants to preserve regional stability.
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