ICTJ in the News

June 2003

Transitional Justice: Conflict Closure and Building a Sustainable Peace

Dispute Resolution Magazine

By Paul van Zyl

Transitional justice embodies an attempt to build a sustainable peace after conflict, mass violence, or systemic human rights abuse.

Success requires a comprehensive set of strategies that must deal with the events of the past but also look to the future in order to prevent a recurrence of conflict and abuse. Transitional justice involves prosecuting perpetrators, revealing the truth about past crimes, providing victims with reparation, reforming abusive institutions, and promoting reconciliation. Because transitional justice strategies are often crafted in situations where peace is fragile or perpetrators retain real power, they must carefully balance the demands of justice with the realities of what can be achieved in the short term. Striking this balance requires great sophistication, sensitivity and subtlety.

Prosecution

International law, the demands of victims, and common decency require that persons responsible for terrible crimes be prosecuted and punished. The prosecution of perpetrators can serve to deter future crimes, be a source of comfort to victims, reflect a new set of social norms, and begin the process of reforming and building trust in government institutions. It is important, however, to recognize that criminal justice systems are designed for societies in which violation of the law is the exception and not the rule. When violations are widespread and systematic, involving tens or hundreds of thousands of crimes, criminal justice systems never have the time and resources to prosecute all perpetrators while maintaining a scrupulous commitment to fairness and due process.

A few statistics serve to illustrate the point: The International Criminal Tribunal for the former Yugoslavia (ICTY) has a staff of more than 1100 and has spent more than $500 million since its establishment in 1991, but it has secured fewer than 20 final convictions. The International Criminal Tribunal for Rwanda (ICTR) has been in operation for approximately seven years and has a budget of about $100 million per annum, but has secured fewer than 10 final convictions. The Special Court for Sierra Leone is unlikely to convict more than 30 people during its first three years of operations. The Serious Crimes Panels in East Timor have to date convicted 32 individuals (before appeals), and it is not likely that they will be able to more than double that number during their remaining period of operations.

Recognizing criminal justice systems' structural inability to cope with mass atrocity should not be construed as a criticism of the role of prosecution or punishment in dealing with past crimes. Notwithstanding their high costs and slow progress, the ICTY and ICTR have made important contributions to the progressive development of international criminal law, and the establishment of the International Criminal Court would have been extremely difficult, if not impossible, without them. It would be absurd to discount the importance of the Nuremberg trials because only a small fraction of Nazis were punished. Similarly, the importance of the recent indictments of top Indonesian officials in East Timor should not be diminished based on a head count of the accused. It is important to recognize and accept that prosecution can never be more than a partial response to dealing with systematic human rights abuse. The overwhelming majority of victims and perpetrators will never encounter justice in a court of law, and it is therefore necessary to supplement prosecutions with other complementary strategies.

Truth-seeking

Establishing the truth about gross violations of human rights is important not only for victims, but also for nations and future generations. It is valuable not only to establish widespread knowledge that human rights abuse has occurred, but also for governments, citizens, and perpetrators to acknowledge the wrongfulness of this abuse. Establishing an official truth about a brutal past can help inoculate future generations against revisionism and empower citizens to recognize and resist a return to abusive practices. In recent years, truth commissions have been established in an increasing number of countries and settings as part of a truth-seeking strategy.

Because these commissions are proliferating so rapidly and are very much in vogue, it is important to sound a cautionary note. While there is much to learn from the experience of others, each truth commission should be based on thorough local consultation and designed according to local needs. Transplanting models from one context to another without critical thought simply will not work, particularly when the model to be replicated is the South African TRC. In addition, truth commissions should be established to genuinely try to uncover the truth and pursue justice, not for ulterior motives such as attempting to discredit political opponents or meet preconditions for donor support. Truth commissions should not serve as substitutes for justice or as politically convenient compromises between accountability and impunity.

Notwithstanding these caveats, bona fide truth commissions can play a number of important and powerful roles. Commissions can provide victims with a voice in public discourse, and their testimony can help rebut offi- cial lies and myths regarding human rights abuse. The testimony of victims in South Africa has made it impossible to deny that torture was officially sanctioned and that it happened in a widespread and systematic fashion. The commissions in Chile and Argentina rebutted the myth that opponents of the military regimes fled these countries or went into hiding. These commissions conclusively established that opponents were "disappeared" and killed by members of the security forces as part of an official policy.

Truth commissions can also help facilitate and add impetus to the transformation of state institutions. By demonstrating that past human rights abuse was not an isolated or atypical phenomenon, commissions can strengthen the hand of those inside and outside a new government who wish to implement real reforms to ensure the promotion and protection of human rights. Conversely, a failure to examine or identify abusive institutions can allow them to continue past practices and, in the process, entrench their power and deepen distrust and disillusionment amongst ordinary citizens.

Truth commissions can also allow victims to tell their stories and begin the process of achieving psychological closure in relation to past traumatic events. While it is important not to overstate the emotional and psychosocial benefits to be derived from a process of testimony, it is widely recognized that attempting to repress or simply forget profoundly traumatic experiences tends to increase the risk of long-term psychological harm.

Reparation

States bear an obligation under international law to provide reparation to victims of gross violations of human rights. Reparation can take many forms, including material assistance (compensation payments, pensions, bursaries, and scholarships), psychological assistance (trauma counseling), and symbolic measures (monuments, memorials, and national days of remembrance). Some countries have devised comprehensive reparation programs. For example, victims of the "dirty war" in Argentina received a total of $3 billion in the form of various forms of assistance. Other countries, such as South Africa, have provided victims with far less reparation than they deserve.

The formulation of a comprehensive reparation policy is often both technically complex and politically fraught. Those charged with formulating a just and equitable policy will have to decide whether to differentiate between categories of victims and among victims in each category. For example, they will have to decide whether it is possible or desirable to provide different forms and quantities of reparation to victims who have experienced various forms and degrees of torture and whether to use means testing to differentiate between wealthy and poor victims. Each decision has significant political and financial implications.

A central question intrinsic to the provision of reparation is the definition of "victim." It is necessary to decide whether reparation should be paid only to victims of "gross violations of human rights" (such as torture, killings, and disappearances) or whether to provide reparation to a broader class of victims (e.g., those who have suffered racial discrimination or who have lost land or other property as a result of unjust policies). A just and sustainable reparation policy should not create or perpetuate divisions among different categories of victims, and it should be feasible and financially realistic.

A reparation policy should also take into account other forms of recourse available to victims. In some contexts, victims eligible for reparation may also be able to pursue civil claims in domestic courts and seek further redress from international human rights enforcement mechanisms. For example, the Inter-American Court and Commission have played a pioneering role in setting standards and articulating reparation obligations. Their rulings have assisted those campaigning for reparation, but have also potentially created significant complications by ordering levels of compensation in individual cases that are impossible to sustain when multiplied across the tens of thousands of victims who are potentially eligible.

Institutional reform

In responding to mass atrocity, it is necessary-but not sufficient-to punish perpetrators, establish the truth about violations, and provide victims with reparation. It is also necessary to fundamentally change, or in some cases abolish, those institutions responsible for human rights abuse. Newly established governments have primary responsibility in this regard, but truth commissions can also play an important role. Truth commissions are usually empowered to make recommendations in their final reports regarding legal, administrative, and institutional measures to prevent the recurrence of human rights abuse. Commissions should devote more energy to this task and ensure that their recommendations are as detailed and specific as possible. Too often commission reports include general recommendations (e.g., "The government should ensure that the security force respect human rights") that are so broad and obvious that they have little practical impact. Through their public hearings, truth commissions can focus governmental and public attention on particular institutions such as the media, prisons, health care institutions, and the judiciary, thereby catalyzing a public debate about the role these institutions played in the past and the measures that should be taken to enhance their capacity to promote and protect human rights.

Governments might also consider adopting vetting programs, which seek to ensure that persons responsible for human rights abuse are either removed from public service or prevented from being employed in government institutions. Vetting programs should scrupulously protect the due process rights of persons under scrutiny and be used to target only those responsible for human rights abuse, rather than political opponents of the new regime or those who may hold different views and beliefs.

Reconciliation

Reconciliation is an important concept with a controversial pedigree. In some contexts, victims oppose "reconciliation" because they associate the concept with enforced forgiveness, impunity, and amnesia. In many Latin American countries, those responsible for human rights abuse, particularly military leaders associated with dictatorial regimes, have cynically invoked the concept of reconciliation to avoid responsibility for their crimes. If reconciliation is understood in this way, then it should rightfully be rejected.

There is, however, a different conception of reconciliation that is important to consider and embrace. Societies that emerge from periods of mass atrocity and widespread conflict often contain deep suspicions, hatreds and animosities. These divisions almost always endure post-conflict and create the potential for a return to violence and a recurrence of human rights abuse, particularly when conflicts have assumed an "identity" dimension in which categories such as religion, language, race, region or ethnicity have been used to sow division and justify human rights abuse. These divisions will not magically disappear under a new democratic order, nor will they necessarily heal with the passage of time.

Overcoming divisions will often require that persons in positions of leadership, inside and outside government, take proactive steps to demonstrate the importance of peace and the benefits of celebrating and protecting diversity rather than using difference as a source of conflict. If these measures are to be effective, they cannot ignore the past, deny the suffering of victims, or subordinate the demand for accountability to an artificial notion of "national unity."

For example, in Northern Ireland, political prisoners from both sides of the conflict have come together in an initiative called "Healing Through Remembering" in which they discuss their pasts and examine their actions and crimes in order to help build a better understanding in both communities of their respective perspectives of the conflict. In so doing, they do not aim to achieve a false consensus about the past, nor about which side bears greater responsibility for past injustices; rather, they seek to create the social space for differences about the past to be dealt with through dialogue instead of violence.

Confronting the past

In scores of societies throughout the world that are struggling to come to terms with a legacy of human rights abuse, leaders and citizens have come to realize that adopting a proactive process to deal with the past strengthens the process of building a sustainable peace. Those who argue that it is too divisive to confront the past fail to realize that they have little choice in the matter. Historical experience demonstrates that victims and the communities in which they live cannot simply forgive and forget. Ignoring the past often compounds animosities and anger that cannot be forgotten. All too often, this anger resurfaces through the politics of revenge or aggressive nationalism. Unscrupulous leaders can manipulate past grievances to sow divisions and justify conflict. It may be risky to confront the past, but is it far riskier to ignore it and increase the chance that it will come back to haunt nations that have already endured untold suffering and hardship.