Transitional Justice Theories

Susanne Buckley-Zistel, Teresa Koloma Beck, Christian Braun, Friederike Mieth, Susanne Buckley-Zistel, Teresa Koloma Beck, Christian Braun, Friederike Mieth

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781135055059
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Transitional Justice Theories is the first volume to approach the politically sensitive subject of post-conflict or post-authoritarian justice from a theoretical perspective. It combines contributions from distinguished scholars and practitioners as well as from emerging academics from different disciplines and provides an overview of conceptual approaches to the field. The volume seeks to refine our understanding of transitional justice by exploring often unarticulated assumptions that guide discourse and practice. To this end, it offers a wide selection of approaches from various theoretical traditions ranging from normative theory to critical theory. In their individual chapters, the authors explore the concept of transitional justice itself and its foundations, such as reconciliation, memory, and truth, as well as intersections, such as reparations, peace building, and norm compliance.

This book will be of particular interest for scholars and students of law, peace and conflict studies, and human rights studies. Even though highly theoretical, the chapters provide an easy read for a wide audience including readers not familiar with theoretical investigations.

Part I

Theorising transitional justice

Chapter 1

Transformative justice, reconciliation and peacebuilding¹

Wendy Lambourne

Introduction

What is the purpose of transitional justice? The answer to this question has too often been assumed rather than explicitly articulated in the theory and practice of transitional justice. From the perspective of those recovering from mass violence and gross human rights violations, justice may be sought as redress for crimes, but it may also be sought as a way of coming to terms with the past and building a peaceful future. Justice, reconciliation and peace are seen as inextricably intertwined (Lambourne 2002). And yet, relatively few transitional justice scholars consider the goals of peace and reconciliation, instead continuing to focus primarily on the promotion of human rights, democracy and the rule of law without situating their research in a peacebuilding context.²

I argue that analysing and evaluating transitional justice in terms of its contribution to peacebuilding enables a more holistic perspective that takes into account the expectations of affected communities as well as the links between dealing with the past and building peace and reconciliation for the future. In determining the specific path to take in any particular transitional justice context, it is therefore critical to take into account the needs, expectations and experiences of the perpetrators, victims, survivors and other members of society directly affected by the violence and who are intimately involved in reconciliation and peacebuilding.

My research has focused on understanding how local affected communities view transitional justice in the context of peacebuilding after mass violence. Drawing on these research findings and theories of conflict transformation, reconciliation and peacebuilding, I have developed a model of transformative justice that requires rethinking our focus on ‘transition’ as an interim process that links the past and the future, to ‘transformation’ that implies long-term, sustainable processes embedded in society. It involves recognising and addressing the multiple justice needs of the local population in a way that draws on the various cultural approaches that co-exist with the dominant Western worldview and practice. In addition to transitional legal justice mechanisms, transformative justice requires a transformation in social, economic and political structures and relationships. By proposing a syncretic or integrated approach to restorative and retributive justice,³ it seeks to avoid compromise whilst also acknowledging that the process is inevitably messy and inadequate to deal with the enormity of the psychological and physical pain and destruction of war and other mass violence.

Reconciling retributive and restorative justice: a syncretic approach

The Western, liberal tradition of accountability for crimes promotes an adversarial, prosecutorial, retributive model of formal legal justice (Findlay and Henham 2005). Based on this model, in the context of transitional justice, the international community has pursued prosecutions through ad hoc international criminal tribunals, hybrid domestic/international courts and the permanent ICC (Cassese 2003; Romano et al 2004; Schiff 2008). Meanwhile, proponents of restorative justice promote the use of truth and reconciliation commissions or informal customary mechanisms where the focus is on rebuilding or restoring relationships and community (Tutu 1999; Hayner 2010; Isser 2011).⁴ More recently, the international community has recognised that Western legal trials and a truth commission, perhaps incorporating traditional, indigenous rituals, may be seen as complementary strategies to support both retributive and restorative justice in transitional societies such as in East Timor and Sierra Leone (Roht-Arriaza and Mariezcurrena 2006). But this pluralistic solution is also inadequate because it fails to break out of the dominant Western worldview of justice and to question the ‘standardization of transitional justice goals and methods’ driven by external interventions (Lutz 2006: 333).⁵

Advocates of an alternative restorative justice model for modern Western societies, building on the traditional, informal, restorative model of communitarian justice practised by indigenous peoples, often simplify and generalise the benefits of this approach to crime (Zehr 1990; Braithwaite 2003). I argue that the distinction between retributive justice in the Western formal legal system and restorative justice in indigenous, informal justice mechanisms is oversimplified and serves to mask rather than illuminate the multiple, complex human needs, expectations and experiences in relation to justice and reconciliation.⁶ Not only do the traditions of different societies vary in the relative weight placed on restorative and retributive components of justice, in many cases these distinctions may in fact be merged or conceived in very different terms (Dinnen 2003; Sriram and Pillay 2009).⁷ Traditional informal justice mechanisms and indigenous reconciliation rituals can thus provide examples of approaches that treat restorative and retributive justice as interdependent rather than mutually exclusive processes.⁸ For example, the traditional gacaca community justice in Rwanda required the offender to ‘appreciate the gravity of the damage s/he had caused’ and the agreed outcome was construed as a form of punishment albeit not one so severe that it would interfere with the primary goal of reconciliation (Molenaar 2005: 14).⁹ Thus gacaca could be experienced as both retributive and restorative at the same time.¹⁰ As argued by Joanna Quinn, ‘while the more formalized Western models often allow for only one form of justice – retributive, restorative, or reparative – these traditional institutions seek to combine various of these and other elements in keeping with the values of the community’ (Quinn 2005: 10).

Thus the idea that informal customary law practices might be more appropriate as a transitional justice model for genocide and other serious crimes against humanity is misleading and may be seen as imposing an unfair burden on survivors to accept restorative justice as sufficient when retributive justice would otherwise be expected.¹¹ And vice versa, imposing primarily retributive legal justice mechanisms may also be seen as inadequate by failing to take into account local community needs for restorative justice and reconciliation. Instead, we should look at creative and locally relevant ways to incorporate principles of both restorative and retributive justice in accountability mechanisms, as well as structures and relationships to support future respect for human rights and the rule of law.¹² Rather than following the pluralist approach of separate institutions, I propose that a more successful approach might be to take a lead from indigenous traditional customary practices in order to design a more syncretic transitional justice mechanism that combines retributive and restorative elements.¹³

My research and that of others who study traditional justice in different cultural contexts suggests that such a hybrid approach is possible. The pervasive influence of colonisation and globalisation is evident in the apparent synthesis of Christian and animist rituals and beliefs in the reconciliation ceremonies of Bougainville and East Timor, for example (Tombot 2003; Babo-Soares 2005). This syncretic approach to justice after mass violence is incorporated in the model of transformative justice which I develop in this chapter, placing transitional justice in the context of conflict transformation, peacebuilding and reconciliation.

Transitional justice and peacebuilding

As defined by the UN, peacebuilding encompasses a wide range of political, developmental, humanitarian and human rights programmes and mechanisms designed to prevent the outbreak, recurrence or continuation of armed conflict (United Nations Security Council 2001). Peacebuilding has short-term as well as long-term objectives aimed at ensuring sustainability in the security, political, economic and justice spheres. These include the promotion of democracy and accountable governance, as well as eradication of poverty and sustainable development, and respect for human rights and the rule of law (United Nations Security Council 2001; Jeong 2005). Justice as part of peacebuilding must therefore be seen as more than transitional: it must set up structures, institutions and relationships to promote sustainability.

Sustainable peace requires pursuing the twin objectives of preserving ‘negative peace’ (absence of physical violence) and building ‘positive peace’ (presence of social justice), and alleviating if not eliminating the underlying causes of conflict (Galtung 1969). This holistic perspective suggests that peacebuilding and transitional justice involve promoting socioeconomic and political justice, as well as legal justice that combats a culture of impunity and sets up structures to ensure ongoing respect for human rights and the rule of law.

This holistic and comprehensive approach to peacebuilding implies a commitment to establishing the security, legal, political, economic, structural, cultural and psychosocial conditions necessary to promote a culture of peace in place of a culture of violence. As argued by John Paul Lederach (2000), peacebuilding requires a transformation in relationships between people as well as the ending of violence and construction of the conditions for peace. Rama Mani similarly proposes that peacebuilding is a dynamic process that is essentially a political task, but also a ‘social and associative process that rebuilds fractured relationships between people’ (Mani 2002: 15). It is this theory of peacebuilding as transformative that I have applied to the justice and reconciliation sector of peacebuilding, hence leading to a proposed reconceptualisation of transitional justice as transformative justice incorporating political, economic and psychosocial as well as legal dimensions.

I propose the term ‘psychosocial justice’ to encapsulate the dimensions of justice that address the need for truth in terms of both knowledge and acknowledgement of the violation and its human and relational impact: knowledge of who was responsible, how it happened, where the bodies or remains are located, and acknowledgement of the loss, pain, hurt and suffering caused. Both knowledge and acknowledgment can contribute to a psychological process of healing and building of inner peace. Combining this inner transformation with relational transformation provides the foundation for reconciliation and a sense of psychosocial justice. Reconciliation is thus seen as a process of relationship-building as part of conflict transformation, as well as an outcome that is part of the experience of sustainable peace (Lederach 1997).

To be sustainable, this transformative process must be based on recognition of the particular cultural and conflict context and the effective participation of civil society. Or as Lederach (2000: 55) puts it: a realistic peace process requires ‘the tools of contextualization and empowerment’. Stover and Weinstein (2004) also stress the importance of social reconstruction being contextualised and adapted to each unique post-war setting and being informed by the opinions, attitudes and needs of the local population. Peacebuilding and transitional justice thus become transformative when they emphasise the principles of local participation and empowerment. Furthermore, I suggest that transformation requires a transdisciplinary mindset that incorporates insights and lessons from many disciplinary perspectives and experiences in order to create new ways of thinking about peacebuilding and transitional justice theory and practice. As argued by Luc Reychler (2006), the narrow disciplinary mindset of peacebuilding theory is a conceptual impediment to developing a comprehensive understanding of sustainable peacebuilding architecture.

From this analysis emerges a transdisciplinary model of transformative peacebuilding that involves a transformation of relationships as well as structures and institutions: what Reychler (2006) refers to as the ‘software’ and ‘hardware’ of sustainable peacebuilding architecture. The sustainability of this transformative process requires attention to the needs and expectations of local affected populations, as well as a co-ordinated focus on the multidimensional or multidisciplinary aspects of peacebuilding incorporating attention to all the dimensions of human security. It requires attention to psychosocial as well as political, economic and law and order aspects of peace and justice. In the next section, I will explore further how this model of transformative peacebuilding can be applied to the transitional justice sector.

Towards a theory of transformative justice

I developed this model of transformative justice based on field research conducted in Cambodia in 1999, Rwanda in 1998 and 2005, East Timor in 2004 and Sierra Leone in 2006.¹⁴ All of these countries experienced mass violence that was ended some years before my interviews were conducted,¹⁵ and genocide, crimes against humanity and/or war crimes were committed. The approaches taken to peacebuilding and transitional justice by the international community and national governments in each case varied markedly.

In Cambodia, a government policy of ‘national reconciliation’ and amnesties was accompanied by a lack of accountability for the crimes of the Khmer Rouge at the international level. Thirty years after the genocide of 1975–79,¹⁶ the culture of impunity was ended with the establishment of a hybrid UN-Cambodian tribunal, the Extraordinary Chambers in the Courts of Cambodia (ECCC), which began trials of key surviving Khmer Rouge leaders in 2009. By contrast, the UN established the International Criminal Tribunal for Rwanda (ICTR) and the Rwandan government instituted domestic trials almost immediately after the 1994 genocide. The Rwandan government subsequently created a National Unity and Reconciliation Commission (NURC) and adapted traditional gacaca community justice to deal with the large numbers of accused and promote both justice and reconciliation. Truth commissions, in addition to legal trials, were established following the 1991–2002 civil war in Sierra Leone and the mass violence that took place in Timor Leste between 1975 and 1999. The Serious Crimes Unit in Timor Leste and the Special Court for Sierra Leone, like the ECCC, have been described as hybrid UN-national transitional justice mechanisms. The Timorese Commission for Reception, Truth, and Reconciliation (known as CAVR from its Portuguese acronym) conducted community reconciliation processes based on traditional nahe biti throughout the country,¹⁷ while the Sierra Leone TRC incorporated some traditional practices in its public hearings.

In each country, I interviewed a cross-section of the population in urban and rural areas, except for Cambodia where I was only able to conduct interviews in the capital, Phnom Penh.¹⁸ My interviewees included victims and survivors, perpetrators and accused, and representatives of transitional justice bodies, international and government institutions, NGOs and civil society more generally. These comments should not be taken as representative of the views of the whole population in each case, but should be seen as indicating the views of some people in each country who can provide an insight into transitional justice processes and how they are being experienced by different sectors of the general population and the non-government sector.¹⁹

Based on my field research in these countries, and building on existing theories and models of transitional justice and the principles of transformative peacebuilding outlined in the previous section, the model of transformative justice I have developed proposes four key elements or aspects of justice: accountability, or legal justice; psychosocial justice, including truth and healing; socioeconomic justice; and political justice.

Four elements or aspects of transformative justice

Accountability or legal justice

My research in Cambodia, Rwanda and East Timor suggested that accountability and/or legal justice were important components of transitional justice. In Cambodia, interv...