I think it’s important, occasionally, to take a step back from what we’re working on in the world of Transitional Justice to see the bigger picture, and to better understand just where our small little piece of the puzzle fits. In a forum at The University of Western Ontario last week, those of us engaged in TJ discussed our own research projects, in areas as varied as humanitarian intervention and the responsibility to protect (commonly referred to as R2P), voting behaviour in newly-democratic states, post-conflict justice mechanisms, truth commissions, and demobilization and reintegration of ex-combatants. As one sage participant remarked, “Sometimes the “justice” in Transitional Justice is a bit misleading!”
Using that somewhat broadened lens, I have been reminded again and again in the past few days just how many parts of the world are engaged in some form or other of TJ. The list of countries and issues posted along the right margin of this site is impressive. But that list barely scratches the surface. In its short history, the ICC has been referred four cases: Sudan, Congo, CAR, and Uganda. Monthly, the ICTJ posts developments in TJ-related issues around the world. And decisions are made daily as to whether or not to contribute support to conflict and post-conflict states, such as the heated debate currently raging in The Netherlands about whether to send troops to Afghanistan.
Remarkably, the first-ever truth commission only issued a final report in the mid-1980s, and the ICTY and ICTR were only established in the early 1990s. As such, the field of Transitional Justice is relatively new. And yet, as my friend reminded us, it’s about more than simply justice as we normally think about it. In order for the mechanisms created in the pursuit of whatever end goal or outcome is desired – and that, too, is seemingly always up for debate: justice, peace, democracy, human rights – a number of other institutions must also be implemented and then girded with on-going support. By that, I mean that policing must be reinforced, legislation must be passed, free and fair elections must be held and their results upheld, and so on. It’s not just “justice.”
These are huge issues you're dealing with here! But also, the really important ones for the field. I think part of what of what you're getting at here-- certainly in post-conflict situations-- is the need for solid institution-building (or -rebuilding) if any "justice" goals are to be met. This is also largely in line with the conclusions Roland Paris reached in his important recent book "At War's End; Building Peace after Civil Conflict", in which he studies many recent UN efforts in this regard and ends up advocating an approach he calls "Institutionalization before Liberalization". To my mind, it's definitely a must-read work.
Part of the problem with the TJ field as currently constituted, in my humble opinion, is that so far it has been monopolized too much by lawyers who have lacked the breadth of vision to appreciate wisdoms generated by other disciplines including anthropology, religious studies, and above all political science and history, history, history. Please note I'm not saying all lawyers lack this breadth of vision... But those like Jontahan Edelstein who have it are far too rare in a field that is dominated by the discourse of highly technical legal jargon.
One result of the lack of attention paid to history and political science is that the political/historical context in which TJ approaches are considered, advocated, or applied, are far too little understood by most participants in the "mainstream" TJ field.
Take truth commissions. The context in which they have been applied has changed fairly radically even in just the short time they've been used in their currently recognizable form. In this historical listing that I pulled together last year it is evident that a process originally used mainly as part of (or after) a transition out of authoritarian rule to greater democracy-- and mainly in Latin American and East European countries that already had a pretty good institutional infrastructure-- later came to be proposed and applied in very different circumstances: in countries that were (1) extremely poorly infrastructured and (2) struggling to recover from massive, extremely debilitating, inter-group violence. The needs of these societies were so very different-- but far too many people in the TJ field thought you could simply take a Latin American-style remedy and apply it almost anywhere...
There has also been a real problem with lack of attention to sequencing issues (attributable, perhaps, to a lack of familiarity with the rhythms of a historical process.) For example, I believe that the current attempts to launch/conduct war-crimes trials regarding the situations in Iraq and northern Uganda are quite dangerous because they actively impede the processes of inter-group peacemaking that both these societies so desperately still need.
Which relates centrally to the question of "what is justice?" For many lawyers of the narrow-minded variety, "justice" is reducible to something like the orderly conducting of a well-procedured trial. Period. But if we ask the actual stakeholders in deeply pauperized societies struggling to escape from recent, atrocious violence how they define justice, then the most common answer received has nothing to do with holding an orderly war-crimes trial. It has to do much, much more and more fundamentally with the bare basics of social stabilization and family survival: the revival of agriculture, markets, and the physical and social infrastructure of community survival and eventual flourishing. That, to the vast majority of such people-- certainly in war-traumatized African countries-- is what "justice" means to them.
And they know well that such "justice" needs have almost no chance of being met if the conflicts that have torn their societies apart cannot be ended... Which is why they put the needs of peacemaking and peacebuilding so strongly ahead of the needs of the technical-legal form of "justice" which is all that most northern lawyers understand.
Anyway, I guess I'm going on a bit here. But I am desperate to have these issues discussed more fully... So I'd love to hear from anyone else who wants to jump in.
Posted by: Helena Cobban at February 2, 2006 10:38 PM
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