Transitional Justice in Comparative Perspective

Preconditions for Success

Samar El-Masri, Tammy Lambert, Joanna R. Quinn, Samar El-Masri, Tammy Lambert, Joanna R. Quinn

• Publisher: Palgrave Macmillan
• Year: 2020
• Print ISBN:
  9783030349165
• eBook ISBN:
  9783030349172
• Topic: Politics & International Relations
• Subtopic: Civil Rights in Law
• Index: Politics & International Relations

What if we could change the conditions in post-conflict/post-authoritarian countries to make transitional justice work better? This book argues that if the context in countries in need of transitional justice can be ameliorated before processes of transitional justice are established, they are more likely to meet with success. As the contributors reveal, this can be done in different ways. At the attitudinal level, changing the broader social ethos can improve the chances that societies will be more receptive to transitional justice. At the institutional level, the capacity of mechanisms and institutions can be strengthened to offer more support to transitional justice processes. Drawing on lessons learned in Colombia, Democratic Republic of the Congo, The Gambia, Lebanon, Palestine, and Uganda, the book explores ways to better the conditions in post-conflict/post-authoritarian countries to improve the success of transitional justice. 

© The Author(s) 2020

S. El-Masri et al. (eds.)Transitional Justice in Comparative PerspectiveMemory Politics and Transitional Justicehttps://doi.org/10.1007/978-3-030-34917-2_1

Begin Abstract

1. Changing the Context: Can Conditions Be Created That Are More Conducive to Transitional Justice Success?

Samar El-Masri^{1, 2} , Tammy Lambert¹ and Joanna R. Quinn¹

(1)

The University of Western Ontario, London, ON, Canada

(2)

Dalhousie University, Halifax, NS, Canada

Samar El-Masri (Corresponding author)

Tammy Lambert

Email: [email protected]

Joanna R. Quinn

Email: [email protected]

End Abstract

The field of transitional justice has emerged as a complex response to post-conflict societies that are working to redress past injustices using a range of mechanisms, such as trials, truth commissions, and reparations. Despite normative and moral justifications for transitional justice, the literature tells us that many of the transitional justice measures that are put in place in the period following conflict and repression fall well short of their intended purpose.¹ Societies that are in the waning stages of conflict and abuse often share a set of characteristics such as instability, division, institutional weakness, and distrust. The impact, of course, is that “moving forward”—or just moving, at all—is difficult and the outcomes of any kind of activity are uncertain, at best.

This book explores whether any given context could be effectively changed to produce conditions that could be more conducive for transitional justice to succeed. This suggests that the dynamism of the stage preceding transitional justice be given more consideration. Indeed, the argument is that efforts to change the underlying context before transitional justice practices are established may increase the success of transitional justice itself.

The transitional justice scholarship has recognised that context matters.² While the early literature sought to demonstrate similarities across cases,³ the ensuing literature has clearly demonstrated that each case has its own particularities and that these are important in how transitional justice is carried out in each case. Elements like the distribution of power,⁴ cultural applicability,⁵ political will,⁶ or institutional capacity,⁷ for example, have been shown to be variable across cases, and arguments are frequently made that their relative absence or presence has aided in the failure or success of the transitional justice that is ultimately established.

What Is Transitional Justice?

Transitional justice is defined as “the range of judicial and non-judicial mechanisms dealing with a legacy of large-scale abuses of human rights and/or violations of international humanitarian law.”⁸

At its heart, transitional justice is about helping individuals and communities come to terms with a past that has involved authoritarianism, repression, civil war, or large-scale human rights abuses and atrocity. It has several goals. First is to “satisfy people’s needs both to know what happened and to establish a clear break with the past.”⁹ Second is to somehow institutionalise revenge and deter future wrongdoing.¹⁰ And third is to “remember” and “rectify” historical injustice.¹¹

Transitional Justice Mechanisms

There is by now a fairly standard set of transitional justice mechanisms that are routinely employed after conflict. The mechanisms that are used may include trials, truth commissions, amnesties, reparations (both material and symbolic), lustration, and informal/local/traditional practices—or a combination of these. Each is outlined below.

Trials are a standard means of dealing with the perpetrators of crimes, of fighting impunity, and of promoting accountability. Trials have occurred at the national level, such as the case of Samir Geagea in Lebanon explored by El-Masri in Chap. 4, or others including the trials of the so-called NIA 9 in The Gambia explored by Kersten in Chap. 7. Sometimes, national trials work in a hybrid arrangement with the international system, which provides any number of supports including funding or technical assistance, as was the case with the Special Court for Sierra Leone (2002–2013), or the Extraordinary Chambers in the Courts of Cambodia (2003–present). Trials have also taken place at the international level alone, through the ad hoc tribunals established after the atrocities that occurred in the Former Yugoslavia and in Rwanda, respectively, through the International Criminal Tribunal for the Former Yugoslavia (1993–2017) and the International Criminal Tribunal for Rwanda (1995–present), modelled in part on the international tribunals that took place after the Second World War, the International Military Tribunal (1945–1946) in Germany and the International Military Tribunal for the Far East (1945–1948) in Japan. A permanent court , the International Criminal Court, was established in 2002 to hear cases that arise when states are either unwilling or unable to prosecute.¹²

Truth commissions are another means of coming to terms with the past. Truth commissions are bodies established to look at widespread human rights violations that took place during a specified period of time, on a temporary basis, by the state, often in conjunction with opposition forces and/or the involvement of the international community. Although the first truth commission was established in Uganda in 1974,¹³ truth commissions became significantly more mainstream in the years following the end of the Cold War.¹⁴ Clustered largely in Latin America and Africa to start, truth commissions were seen as a way to gather information about past atrocity from a large number of people without getting bogged down in the formal requirements of the legal system; as a bonus, they were considered to cost far less and to deal with a much wider array of crimes. Truth commissions have been established in more than 40 countries, including Sierra Leone and the Democratic Republic of the Congo, as outlined by Freedman in Chap. 6, and in The Gambia, as detailed by Kersten in Chap. 7.

Amnesties are another response to the restrictions of formal court processes and the complications that arise from punishment and sentencing, particularly in situations where the perpetrators are still visible in society and may still wield considerable power and influence. As Jeffery notes, “amnesties are instruments of politics.”¹⁵ By granting immunity from prosecution for perpetrators of past atrocity, it is understood that societies can move past what Minow calls “impediments to justice.”¹⁶ Amnesties are sometimes granted to those who are seen as having been most responsible, as with the amnesty passed by the Lebanese Parliament in 1991, as discussed by El-Masri in Chap. 4. In other cases, as in Uganda, amnesties have been granted to the rank-and-file members.¹⁷ In still other cases, as in South Africa, amnesty is granted in exchange for other information.¹⁸

In other cases, states award reparations as a remedy for the harm that has been suffered. These may be either material or symbolic; material reparations may take the form of restitution or compensation, while symbolic reparations may be given in the form of an apology. Roht-Arriaza notes that “states are obliged to provide remedies for violations, both as a matter of treaty law and as part of the general rules of state responsibility. Starting in 1989, the U.N. Human Rights Commission and its Sub-Commission … outline[d] restitution, rehabilitation, compensation and satisfaction as interlinked but distinct obligations on states.”¹⁹ Minow, however, notes the “inevitable shortfall” of financial compensation but argues that “the return to a symbolic dimension seems crucial.”²⁰ Reparations have been provided in a number of different cases, including to Indigenous people living in Canada who suffered significant physical and sexual abuse in state-mandated residential schools.²¹ Reparation can also be made by means of an apology. Apologies for past actions have been made by states in a number of cases, including an apology made by the government of Germany in 2004 for the genocide of the Herero people in what is now Namibia by the German army between 1904 and 1908.²²

Lustration is another means that is often used to deal with the past. It involves the vetting of public officials, often resulting in “the mass disqualification of those associated with the abuses under the prior regime.”²³ By purging those who may have b...

Table of contents

• Cover
• Front Matter
• 1. Changing the Context: Can Conditions Be Created That Are More Conducive to Transitional Justice Success?
• 2. Tractionless Transitional Justice in Uganda: The Potential for Thin Sympathetic Interventions as Ameliorating Factor
• 3. The Role of Democratic Uncertainty in the Interplay Between Transitional Justice and Democratisation
• 4. The Importance of Modifying the Context Before Introducing Amnesty and Prosecutions: The Case of Lebanon
• 5. Victims of Language: Language as a Pre-condition of Transitional Justice in Colombia’s Peace Agreement
• 6. Transitional Justice in the Wake of Resource Wars
• 7. “Some Reasons Are Obvious, Some Are Not.” The Gambian Experience with Transitional Justice
• 8. Institutional Trustworthiness, Transformative Judicial Education and Transitional Justice: A Palestinian Experience
• 9. Moving Forward: The Possibilities That Obtain from Ameliorating the Context to Create Conditions for Success
• Back Matter