What does ‘justice’ mean to a victim of a human rights violation compared to a government attempting to transition beyond such violations? And how do differing views of justice affect the way peace is sought out and negotiated?
In June, ICTJ and the Barcelona International Peace Resource Center teamed up to teach an intensive course on the place of transitional justice in peace processes. This year’s course brought together 25 participants from 15 different countries, with the aim of introducing them to the basics of transitional justice while also exploring the challenges and implications of different approaches to justice through an in-depth analysis of ongoing experiences in Colombia, South Sudan and the Philippines.
Instructors included Paul Seils, Vice President of International Center for Transitional Justice; Marcie Mersky, Director of Programs at ICTJ; Ruben Carranza, Director of the Reparative Justice Program at ICTJ; and guest instructors Katia Papagianni, Director of Policy and Mediation Support at Humanitarian Dialogue; David Marshall, Law and Policy Advisor at the UN Office of the High Commissioner for Human Rights; and Juanita Goebertus, Coordinator of the Transitional Justice Group of Colombia’s High Commissioner for Peace.
Over the course of the week, ICTJ’s digital strategist Marta Martinez interviewed instructors and participants to offer an inside look into the discussions that were taking place in Barcelona. Watch them below, and join us for next year’s course!
What is Transitional Justice?###
ICTJ’s Vice-President Paul Seils discussed the basic concepts of transitional justice and its relationship with certain forms of reconciliation. Seils stated that transitional justice has been an “important plank” in peace-building, both in past experiences like Guatemala and South Africa to today’s situations in Colombia and South Sudan. It only now seems like a “hugely topical issue,” as Seils described it to be, due to the increasing number of peace processes around the world.
When asked about the importance of the four pillars of transitional justice – criminal justice, truth seeking, reparations and institutional reform – Seils clarified that although the pillars are essential to post-conflict nations, he adamantly opposes a process that he says can be “too mechanistic.” What works for some countries in terms of achieving justice for its victims may not necessarily work for other nations. He explained: “We shouldn’t think that unless you can do all of them, you should do none of them.” Instead, transitional justice has "to be critical and reflective of what makes sense, to be careful in our analysis and understanding” of a nation’s post-conflict situation, according to Seils.
But how do we reckon with the differing notions of reconciliation when working with transitional justice principles in a peace negotiation? Though we may all have different conceptions of reconciliation, Seils concluded that transitional justice is not meant to make everyone agree with or love each other; rather he believes “it might mean we can live in a slightly more peaceful and tolerant society and differ peacefully as opposed to violently”.
Truth-Seeking and Peace Agreements###
Marcie Mersky, ICTJ’s Director of Programs, delved into truth-seeking experiences and the expectations of a truth commission. Mersky asked: “What is the role of truth in post-conflict or post authoritarian situations, or even periods where there is a political opening to think about what’s happened?” Besides the classic who, what, and when that truth commissions answer, she said that a good truth commission provides a voice to victims, gives visibility to vulnerable marginal groups, builds an alternative narrative to past events rather than a consensus, and lastly provides a form of moral condemnation – especially when there is not an opportunity for large-scale prosecutions. In other words, truth commissions are able to provide a sense of closure for the victims and their families.
Mersky also analyzed the 1984 Argentinian truth commission, CONADEP, often overshadowed by the South African truth commission and rarely considered. The truth commission mobilized victims and allowed them to contribute to the fact-finding. Today’s truth commissions often turn the experiences into statistics, dehumanizing the victims and their experiences. As Mersky explained, these contemporary commissions are often driven more by international concern than domestic demand. “If it’s fundamentally externally driven, it’s much more difficult, on the one hand to do a good job, and on the other hand to produce something that is meaningful for the people.”
The Different Forms of Reparations###
ICTJ’s director of the Reparative Justice program, Ruben Carranza, addressed reparations and how its ambiguous meaning can influence the form reparations take. When one victim wants “justice”, it is not always the same justice that someone else may want and this may be one of transitional justice’s greatest challenges when it comes to helping a nation implement post-conflict reform. “When we talk about reparations, it can come in different forms,” Carranza said. He emphasized during the session that reparations are not just monetary compensation, but rather come in different forms of acknowledgment of victims and their rights. It is important for transitional justice to locate its concepts in the language, culture, and history of a nation.
Carranza argued that the prioritization of reparations depends on how well maintained the infrastructure and access to basic services is during a post-conflict period. The competition between reparations and development is what results in reparations being overlooked, especially when governments only see reparations as monetary compensation. He said there are different ways to combine both reparations and development, but still prioritize marginalized communities in order to provide a degree of justice. In the end, Carranza noted, “for many victims, when they say justice it also means subsistence; being able to live from day to day.”
The Art of Mediation###
Katia Papagianni, director of Policy and Mediation Support at Humanitarian Dialogue, discussed the gradual change in the notions of mediation between the 90s – early 00s and today, especially due to fragmentation. She said that, after the end of the Cold War, there was a greater “unity of purpose” on how to end long-standing conflicts. This began to change with the increase of regional/global state competition and disagreement on the best approaches to resolve conflict.
Katia revealed how the armed struggles around weak state borders, fragmentation of military and political alliances, and proliferation of armed groups further challenge peace processes. "It’s not easy," she admitted, especially as third parties must seek new ideas on how to control and manage the various actors and their goals. However, while fragmentation may complicate the peace negotiation, Papagianni emphasizes that “activists all over the world have a lot of opportunities to enter into the processes," thereby giving them a voice in peace negotiations.
South Sudan’s Fragile Peace Agreement###
David Marshall, Law and Policy advisor at the UN office of the High Commissioner for Human Rights, examined the case study of South Sudan’s peace agreement in relation to The New York Times op-ed signed by the President and Vice-President of South Sudan, Salva Kiir and Riek Machar in June (which Machar has since claimed he did not sign). The op-ed stated their intention to limit reconciliation to truth seeking. Marshall said that due to the leaders’ public commitment to end violence and prosecute those involved in the mass crimes, their op-ed obviously comes as a “shock”, undermining their previous commitments.
Marshall explained that those in the field have learned that victims need to be at the center when shaping what accountability for atrocity crimes should look like. Marshall says that it is striking that that these lessons are nowhere to be found in chapter 5 of the South Sudan’s peace agreement, signed in 2015. He said, “We have elements of a transitional justice process that undermine all the lessons that we’ve learned to make sure processes are meaningful and effective for victims, their families, and survivors.”
By “arresting, detaining, beating, killing civil society, the democratic space of civil society is being limited by the rampant national security apparatus,” said Marshall. Though initially invited, actors from civil society were later pushed way from participating in the peace process, giving them no meaningful role whatsoever. According to Marshall, this marginalization of civil society and key governmental players in the peace negotiations has led to “a dead end” for any sort of accountability for atrocity.
“The peace process is potentially at risk,” he said.
Colombia: Putting Victims at the Center of a Peace Negotiation###
Juanita Goebertus, coordinator of the transitional justice group of Colombia’s High Commissioner for Peace, briefly went over the complex context of the Colombian peace process and how victims’ participation was key to the Colombian negotiations. Learning from previous peace processes, Goebertus described the limits of those involved in the process in terms of global actors, stating that the Colombian peace process was a direct peace negotiation between the government and the guerilla rebel group FARC. Based on previous global negotiations, it was important for Colombia to only have to deal with the interests of the two negotiating parties, said Goebertus.
Most importantly, victim participation has been key to the Colombian negotiations. To create meaningful participation, Goebertus said the three mechanisms used were proposals, public forms, and expert advice. According to Goebertus, more than 63,000 proposals for all agenda items were submitted, and of those, 27,000 were related to the victims’ agenda item.
Goebertus described the difficulty in selecting the sixty victim representatives who would join the negotiations, as “no group of victims is representative of the 7.9 million victims” that were affected during the 52 year-old armed conflict. Goebertus concluded by addressing Point 5 of the agreement, known as the Victims’ Agreement. Based on the principle of conditionality, it is an independent and impartial system that involves victims’ participation along the entire process, and judicial and extrajudicial mechanisms – fully encompassing the elements of transitional justice to fulfill victims’ rights to truth, justice, reparations and guarantees of non-repetition.
She explained, “We needed to address victims’ rights … It’s is most likely that we would have not been able to reach the agreement that we reached on a comprehensive transitional justice system if we had not listened to victims as we did.”
Participant Feedback###
Reflecting over the week-long course, participants shared a sense of excitement to return home with a more nuanced understanding of transitional justice that they could integrate into their everyday work. Maureen Nahwera, senior governance advisor for the Swedish International Development Cooperation Agency in Uganda, commented: "The course deepened my understanding of the different concepts of transitional justice processes and also provided experiences of different countries.”
Iftikhar Ali, human rights officer at the United Nations’ Mission for Iraq, said his main takeaway had to do with early policy integration. "We have to find some entry point where we can apply some of the tools and elements of transitional justice to start the process because it’s a longer process—it takes a lot of effort,” he said.
Participants felt especially grateful for the diverse group of participants and instructors. “I found it to be extremely helpful to hear experiences of what you do with theory and these principles", Kathleen Mahoney, a professor of Law at the University of Calgary, said. Although, coming from an academic background, Mahoney admitted that the most rewarding part of the course was the simulation exercise, which she thought was quite special. “We became negotiators on a difficult case and we had a chance to interact ...you began to see just how difficult these processes are because everyone was very knowledgeable in their own context," she said.
It seemed what really enriched the experience was the diversity in the room – with 25 participants from 15 different countries, all coming from various fields of work paired with experienced instructors, the course was imbued with a wide perspective on the different ways transitional justice can play an essential role in negotiating peace. The main lesson learned by the participants and adamantly emphasized by the instructors was that justice does not come in a one-size-fits-all approach. The ideas around justice in forms of reparations, criminal justice, truth-seeking initiatives, and peace processes transform from each situation to the next, but the best way to give the victims what they need is by keeping them in the conversation and listening to their needs.
Photo: Participants in ICTJ's Barcelona Peace Course
