Justice Mosaics: How Context Shapes Transitional Justice in Fractured Societies

Roger Duthie and Paul Seils
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Over the years ICTJ has witnessed with growing concern a tendency among transitional justice practitioners to disregard local circumstances and to expect the same kinds of results from transitional justice efforts in radically different contexts. Practitioners would turn to similar strategies whether they worked in relatively well-developed countries with strong institutions or in chronically under-developed countries with barely functional institutions; if they were operating amidst relatively limited repression or full-scale civil war or genocide. ICTJ therefore conducted a multiyear research project to examine and emphasize the challenges and opportunities of pursuing transitional justice in different—and difficult—contexts. The edited volume presents these findings, ultimately arguing that, rather than a set of tools, transitional justice efforts could be viewed more like a series of mosaics, or processes arranged according to the circumstances in play.

The project argues that, rather than a set of tools, transitional justice efforts could be viewed more like a series of mosaics, or processes arranged according to the circumstances in play.

A Syrian refugee from Idlib, and her son with disabilities, living in Lebanon’s Bekaa Valley, January 30, 2017 (DFID) ### Transitional Justice and Context States are obligated to respond to serious violations of international humanitarian, human rights, and criminal law in different ways and in different circumstances, including during armed conflict and in times of peace. Accountability, acknowledgement, and reform for such violations can therefore be justified as an obligation- and rights-based policy: ensuring human rights by responding to their violation has an inherent value and does not necessarily need to be justified by its instrumental value in bringing about other outcomes—that is, in contributing to broader change.

The protection and vindication of victims’ rights is the most direct objective of transitional justice processes and should not be subsumed under other policy objectives. Nevertheless, societies have grappled with the question of how to respond to atrocities and other serious human rights violations in a range of very different contexts in which broader changes are underway.

Understood as a particular subfield of human rights work or as a distinct field altogether, the notion of transitional justice has not just been about responding to human rights; it has also been inherently about the contexts of those responses. Transitional justice can, arguably, be distinguished from other responses to human rights violations by the fact that the violations it responds to are massive and systematic and the context in which it occurs is one of transition, most typically through a change of government. The scale and nature of the violations is important from a contextual perspective because even in ideal circumstances it is highly unlikely that an effective remedy could be provided for every victim or that every perpetrator could be held accountable.

The fact that context varies is important because the broader context affects the objectives of transitional justice efforts as well as the processes through which they develop, which in turn affect the specific responses that are most appropriate and feasible in each setting.

The transitional context is important for three reasons: 1) it opens up opportunities to respond to violations that may not have existed under an authoritarian regime or during an active armed conflict; 2) the responses are seen to make a potential contribution to certain objectives, such as the vindication and protection of human rights, reconciliation, democratization, rule of law, or peacebuilding, depending on the context of transition; and 3) at the same time, a transition presents specific obstacles or constraints, whether they be political, institutional, or material. These opportunities and constraints may ebb and flow over time.

In his chapter in this volume, Lars Waldorf points out the many problems associated with the term transition, but usefully describes them as “‘critical junctures’ involving attempted democratization or attempted peacebuilding... typically initiated by extraordinary legal moments.” The context presents therefore a critical set of variables in identifying the objectives, challenges, and opportunities for initiating and shaping transitional justice processes. It is also relevant for assessing the flaws, limitations, and value of the concept of transitional justice and its relation to broader notions such as “dealing with the past” or “transformative justice.” Calls for transitional justice to be more context specific, to be more attuned and aligned to national and local context, are common. While it is true that some of the boundaries of the field have been pushed in response to practical difficulties faced in new political contexts, we still need a better understanding of how transitional justice processes unfold in a range of contexts.

This collection of papers attempts to further demonstrate and categorize some of the contextual factors that are most relevant in places where transitional justice processes are advocated, designed, and implemented. It identifies four main categories of contextual factors—the nature of institutions, the nature of conflict and violence, the nature of political settlements, and underlying problems of economic and social structures—and the implications of these for transitional justice.

The institutional context includes national and formal institutions, such as justice systems and constitutions, and more-local institutions, such as community-based justice and reconciliation practices. In transitional contexts, institutions are often fragile and/or corrupt. Transitional justice processes can both shape and be shaped by these institutions, which create challenges as well as opportunities to contribute to rule-of-law reform and other kinds of institutional reform.

The nature of armed conflict includes variations in the armed actors involved and their motivations and the type and scale of violence and human rights violations that are committed, all of which affect the justice responses that are appropriate and the kinds of trust they seek to restore. In addition, while violence can be widespread during war, it can persist in different forms in the aftermath of war, which can present challenges for accountability, acknowledgement, and reform. Contexts of armed conflict raise questions about how transitional justice processes relate to conflict resolution and peacebuilding.

The political context brings both changes in and contestation over power dynamics, with significant implications for the form and feasibility of responses to massive violations. The political context generally makes tradeoffs an inherent element of transitional justice, but it also usually contains spaces in which justice and change can be advocated and the past can be addressed in ways that can lead to more comprehensive processes in the future. Considering the political context means looking at the interests and incentives of a range of actors, including not just the state but also non-state armed groups, political parties, civil society actors (such as victims’ groups, labor unions, and religious actors), and international donors.

Underlying social and economic structural problems often constitute contexts of gross inequality, marginalization, and discrimination, which both facilitate massive human rights violations and create obstacles for responding to them. They may also be important drivers of conflict. Notions such as development, resilience, and transformation are useful in thinking about the extent to which transitional justice processes are affected by and can at the same time address root causes and contribute to broad change.

One of the major challenges faced in the field is what has been called the “implementation gap,” meaning the frequency with which measures to address past human rights violations are proposed and even designed but go unimplemented or only partially implemented. This volume illustrates some of the explanations for this implementation gap, while suggesting ways of reducing it. One of the key points it makes is that implementation is difficult because contextual factors change slowly and incrementally. Institutions and structural inequalities can take decades to change, and political contexts can carry divisions and violence over from conflict to peace. Transitions bring both change and continuity. The tension between human rights principles and contextual opportunities must always be kept in mind. It is argued here that while the concept of transitional justice has value in part because it emphasizes its context, the practice of transitional justice needs to do more to adapt to that context.

(Carlos Reusser Monsalvez/Flickr) ### Conclusions

Transitional justice practitioners and policy makers are often called on to take context into greater consideration. This edited volume examines some of the main contextual factors for transitional justice: the institutional context, the nature of conflict and violence, the political context, and economic and social structural problems. These factors have important implications for those seeking accountability, acknowledgement, and reform for massive human rights violations.

Defining transitional justice contexts: Responses to massive human rights violations often depend on a context that is transitional to a certain extent, but those advocating such efforts should not wait for such contexts to be ideal before beginning. Transition is significant because it brings about some form of change, which is often necessary for there to be opportunities to develop and shape processes that may not have existed during ongoing armed conflict or repression. But transition should not be defined strictly around peace agreements and regimes changes, because change is pushed for and often begins before such events and persists long after them. Experience has shown that limited steps can be taken toward justice while conflict and repression are ongoing. Furthermore, even during immediate political transitions, continuity with the past as well as new challenges will create constraints on transitional justice efforts. In many cases, these constraints will persist for years or decades. Transitions mean both opportunity and constraints for addressing injustice, both of which are integral to the notion of transitional justice.

Identifying and understanding contextual constraints: Due both to continuities with the past and new challenges that accompany change, transitional contexts are “imperfect.”108 Weak or nonexistent institutions, widespread corruption, massive numbers of victims and perpetrators, different types of violence, necessary political tradeoffs, a wide array of actors with different interests and organizational capacities, and broad structural problems such as poverty, inequality, and discrimination—all of these factors make for difficult contexts. Transitional justice processes, therefore, can be ambivalent, contested, and contingent, functioning necessarily in an “imperfect manner,” and should be understood in the long term.109 Whether it takes place during conflict, as part of an immediate transition, or even decades afterwards, issues of scale and fragility will present challenges. Transitional justice processes that are out of sync with the institutional, security, political, social, and economic contexts are less likely to achieve their objectives. Assessing these contexts, then, is necessary but difficult for external actors.111 While this does not mean that advocates of justice should back down in the face of risk and instability, such constraints should inform expectations and assessments of transitional justice processes.

Focusing on direct objectives and processes over measures: Given the importance of context, it is important to promote the direct objectives of accountability, acknowledgment, and reform, and to understand and react to the different processes through which these objectives may be achieved. There may be good reasons to support measures such as criminal trials, truth commissions, reparations programs, and vetting, but in practice contextual factors may sometimes make such measures unfeasible or inappropriate. Rather than promoting a formula, toolkit, or blueprint, it may be more effective to focus on process: look for opportunities to advance discussions, shape the ways in which past injustice is in fact being dealt with, keep the issues on the agenda, try to create spaces or entry points, and develop innovative ways of dealing with the legacies of past violations according to changing circumstances When specific measures are appropriate, sequencing in some form may be more appropriate than attempting a simultaneous implementation of multiple measures, given that different measures have different contextual preconditions. Guarantees of non-recurrence are a promising and underemphasized notion that overlaps with transitional justice and combating impunity, but even that is often thought of in terms of specific measures, rather than general principles or objectives.

Contributing to broader objectives according to context: While objectives such as accountability, acknowledgment, and reform may be fairly consistent, the broader context in which these are sought will affect broader policy objectives, which will affect the processes that are most feasible and appropriate and the contribution they may make to change. Transitional contexts differ widely, with objectives that include vindication and protection of human rights, rule-of-law reform, peacebuilding, conflict resolution, conflict transformation, development, state-building, good governance, and democratization, among others. Transitional justice efforts can potentially contribute to or be in tension with these broader objectives in different ways. They should be shaped and assessed according to these objectives. Furthermore, however transitional justice processes play out, they should seek to complement other transitional interventions or at least to minimize the tensions between them, such as demobilization and reintegration programs for ex-combatants, humanitarian assistance and durable solutions for displaced persons, and development programming to reduce marginalization and poverty. Context also affects the more direct goals and outcomes of justice processes—for example, in terms of whether they are meant to foster trust and reconciliation between citizens and state institutions and/or between citizens themselves and between groups.

Supporting the actors, institutions, and conditions that can facilitate transitional justice: Given the relevance of context, it may be possible to indirectly support or shape justice processes by supporting the actors, institutions, and conditions that more directly enable them. For example, rule-of-law reform may build the capacity and integrity of justice-sector institutions that carry out criminal prosecutions. Support to civil-society actors, particularly those working to empower victims and groups, can help them to advocate for justice processes that are appropriate to local needs and political dynamics and that ensure the participation of victims and marginalized groups. However different processes unfold, they may be more likely to promote resilience when designed and implemented by local actors and in ways that accentuate the existing strengths of the social system, and those local actors may be more likely to support processes if they participate in their design. International interveners, in contrast, often lack the capacity, expertise, and legitimacy to make the right political judgments.Support can also go towards increasing the likelihood that political parties facilitate, rather than hinder, legitimate transitional justice processes, through the creation of parties based on crosscutting interests and rooted in society and broad-based coalitions that can foster consensus.

Finally, reducing social and economic structural problems, like gross inequality, can be an important step towards ensuring that transitional justice processes both achieve their immediate objectives and contribute to long-term social change.