From repressive governments to full-blown national and international conflicts, ordinary people are frequently the victims of abuses – and on a massive scale. This can mean tens of thousands being deliberately disappeared and their families not knowing their fate. It may mean that hundreds of thousands, sometimes millions, are forcibly displaced from the land and homes they have occupied for generations, ruining the lives of children who lose the chance of an education, setting back economies for generations and putting massive numbers on the brink of serious illness and starvation. It can mean systematic targeting of women for rape and sexual violence. It can mean mass murder and even genocide. For any society to get to this stage speaks of profound and systemic failure.
Transitional justice is about trying to answer the question of what can be done in these terrible circumstances to redress victims and prevent violations from happening again. It may seem obvious, but what should be done and what can be done will depend very much on the context in question. We cannot hope to simply impose a set of principles or practices borrowed from another context, perhaps a very different one, and expect the same kind of results.
This does not mean surrendering in the face of opposition to justice. Opposition is present in every context. We often say that transitional justice is an art, not a science. Part of the art is in understanding the context, including the opposition to justice, weighing the pursuit of dignity and rule of law against the threats of those who would deny it, and adopting the best strategies to pursue justice and reform in those circumstances.
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. Edited by Roger Duthie and Paul Seils, the project’s findings are available in a volume, entitled Justice Mosaics: How Context Shapes Transitional Justice in Fractured Societies, which contains 12 essays, and a final report.
The project tried to find answers to some of the critical questions that people designing and applying transitional justice policies must ask themselves: What is a transitional justice context? When and where are transitional justice processes relevant and feasible? What should those processes address? What should they look like? How much should we expect them to achieve? Why is transitional justice so difficult to implement?
Looking at the human rights challenges the world faces today, these questions become more relevant than ever. What might transitional justice look like in Syria, where millions of people are displaced and a political transition to end the conflict is difficult to envision? Or in Mexico – a complex case that does not conform to traditional ideas of “transition” but where violence that may include crimes against humanity is seen through a framework of organized crime rather than armed conflict, and the rule of law can be said to be severely damaged if not collapsed in many regions? Or in Sri Lanka, where many of those responsible for crimes committed during the civil war are still in positions of government? Or in South Sudan or the Central African Republic, where weak institutions, poverty, and ongoing violence makes for extreme fragility?
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.
The Transitional Justice Principles
In countries like Argentina and Chile, military regimes ruled through state repression, targeting opponents with torture and disappearances. In others like Liberia and Sierra Leone, civil wars between weak states and rebel groups led to widespread violence, destruction of homes and infrastructure, and large-scale displacement. In trying to address the legacies of these violations, the former countries have been able to draw upon relatively strong institutions and economies. The latter, in contrast, have had to do so with more fragile institutions and amidst widespread poverty.
In countries like South Africa and Guatemala, where war and repression mixed with profound racial discrimination, efforts to address the past have played out against backdrops of inequality, corruption, and persistent criminal violence. Today, countries as different as Nepal and Colombia are attempting to confront the wrongs committed during 10-year- and 50-year-long civil wars, and Tunisia those of more than 50 years of repression, corruption, and marginalization.
Out of these different experiences, and within a framework provided by international humanitarian and human rights law, the field of transitional justice consolidated around a series of principles and measures that were seen to work best in combating impunity for massive violations and preventing them for happening again. The principles were justice, truth (or the right to know), reparation, and non-recurrence, and they often took shape as criminal prosecutions, truth commissions, reparations programs, and reform of constitutions, laws, institutions and organizations.
As these measures became recognized as a coherent response to abuses, three strains of discourse developed. One school of thought proposed measures, especially truth commissions, as an alternative to prosecutions. A second, more nuanced position argued for a “holistic approach” to transitional justice. It held that there is more to justice than criminal prosecutions, and that it is not a question of “either or” but rather understanding the different values and contributions of each of these measures. And thirdly, there was the notion that the different components of the justice response add up to more than the sum of its parts. In short, that there is an added value in adopting an “integrated approach” to transitional justice, where these measures constituted essential elements of design if not simultaneous application.
An unwelcome consequence arising from the focus on “integrated approaches” is that it has led to the application of templates or tool kits without due attention to the context being paid. Connected to this, it has seen the development of justice measures frequently designed in part by external parties, often international bodies, that take insufficient account of local dynamics and conditions.
Christine Bell, one of the authors in the volume, writes: “The very label of transitional justice for mechanisms to deal with the past has perhaps created a sense of a unitary practice across authoritarian and conflict contexts, in ways which have led to a coherent study of mechanisms such as trials and truth commissions but which have at the same time obscured the very different political contexts in which such mechanisms are agreed, institutionalized, and implemented.”
Transitions can be from armed conflict towards peace or from authoritarianism towards democracy, or a mixture of both. Transitions also frequently involve economic and social changes, as countries try to reconstruct their infrastructure and address the root causes of conflict and repression.
The fact that the context in which societies often respond to past human rights violations is a transitional one is important for at least three reasons:
1. Transitions often open opportunities to respond to human rights violations that might not have existed during an armed conflict or under an authoritarian regime.
2. In addition to providing accountability for and acknowledgment of past violations, justice processes in transitions are seen to make potential contributions to broader, more long-term objectives, including reconciliation, democratization, rule of law, good governance, and peacebuilding.
3. Transitions set constraints on justice processes, due both to continuities with the past and new challenges that arise.
Our research suggest that certain categories of contextual factors have significant implications for transitional justice processes, each of which affects the aims of those processes and brings particular opportunities and challenges.
To start with, there are the institutions of a society, the rules and practices by which it is organized. At the national level, this includes judicial systems that conduct criminal trials, constitutions that create a framework for administering justice processes, and education and healthcare systems that can provide assistance in the form of reparations to victims. At the local level, community-based justice and reconciliation practices in countries such as Sierra Leone, Timor-Leste, and Uganda have been used to repair social ties and reintegrate child and adult combatants.
“It should be highlighted,” argue Lisa Denney and Pilar Domingo in the book, “that institutional maturity often does not exist within the ‘go-to’ institutions of the international community (such as formal justice systems and police forces), but resides elsewhere, in levels of governance much closer to people’s day-to-day lives.”
Institutions in transitional contexts are often fragile and corrupt, however, and even when strong tend to be resistant to change, which creates capacity and credibility challenges for the institutions responsible for implementing justice processes. Institutional corruption, for example, can hinder justice directly through active resistance or indirectly by undermining institutional trust. At the same time, though, opportunities exist for transitional justice to affect the institutional context, to the extent that it can facilitate the reform of institutions, help return them to their proper place in the democratic order, and increase their integrity and legitimacy and the trust that people have in them.
A second factor is the nature of the conflict or repression in which human rights violations occurred. Armed conflicts differ from authoritarian regimes, for example, in ways that can complicate the determination of responsibility and the examination of patterns of violence: the range of armed actors with a range of political and economic motives; the cross-border movement of combatants and displaced populations; the discourse of “terrorism” that can reinforce divisions. Most importantly, the scale and nature of violations differ in terms of the balance of horizontal (armed groups and communities fighting one another) and vertical (repressive regimes targeting often unarmed victims) violence and the overlap among victims and perpetrators.
In countries such as Colombia, prior to its recent peace agreement, transitional justice processes have been undertaken while conflict is still ongoing. This carries risks, particularly those associated with violence against victims and their advocates; an ever-expanding number of victims; gathering evidence and documenting crimes; and losing momentum and public support. But it can also help to set the stage for future peace negotiations, recognizing victims’ experiences and making their rights central to public debate. Ongoing and post-conflict situations highlight the importance of understanding the links between transitional justice and conflict resolution, peace processes, and peacebuilding, and the balance that needs to be struck between security and accountability.
“The Colombian experience illustrates that the implementation of transitional justice mechanisms during an ongoing armed conflict is very complex, because it tends to accentuate many of the risks and challenges associated with these instruments,” write Rodrigo Uprimny Yepes and Nelson Camilo Sánchez in one of the book’s chapters. “However, using these or similar measures when victims demand recognition and reparation in the midst of conflict seems unavoidable. Furthermore, in such contexts transitional justice may contribute to setting the stage for a negotiated peace.”
A third factor is the political context. Transitions tend to bring political opportunities to make justice claims, if the power balance is reconfigured, the old governing arrangements are delegitimized, and new constituencies are mobilized. But they also come with political constraints, if continuities with the previous arrangements and the potential for instability persist, while victims and their organizations retain only limited power. Transitions can be seen as contexts of political contestation, in which a range of actors approach transitional justice processes according to a range of different interests, incentives, and alliances.
Civil society and victims should play a central role in driving transitional justice processes, but sometimes lack of history of organization, may be underfunded, lack the political space to act, and sometimes compete amongst themselves for resources and influence. Religious actors and labor unions can shape justice processes according to local cultural and social dynamics, but the approach of both actors is shaped by their experiences of the past, their political alliances of the day, and the degree to which they see justice processes as being participatory. Political parties, which could potentially provide platforms for building consensus around transitional justice, in post-conflict contexts instead often reinforce war-time divisions, politicize the issue, and provide cover for perpetrators.
“Securing political consensus increases the probability of participation in and success of transitional justice processes,” says Ken Opalo in his analysis. “To this end, political parties are crucial for facilitating both elite and mass buy-in.”
Fourth, it is important to consider the social and economic structures that form the backdrop to widespread human rights violations. Problems such as poverty, inequality, and marginalization can both facilitate violations and create constraints for addressing those violations in terms of resources and access. In addition, the absence of structural change can undermine the objectives of justice processes—justice for sexual and gender-based crimes, for example, requires not just accountability and acknowledgement, but changes in the underlying conditions to end the stigmatization of victims and ensure the non-recurrence of such crimes.
A number of related concepts can help us see the relationship between transitional justice and social and economic structures: development, resilience, and transformation. The UN’s Sustainable Development Goals provide a framework for understanding the contribution that transitional justice can make to development, for example, particularly in terms of rule of law, access to justice, accountable institutions, prevention of violence, inequality, and gender empowerment.
“The international community has increasingly recognized the importance of engaging in fragile and conflict-affected states that are often the settings for transitional justice initiatives,” explains Elena Baylis in her chapter on development aid, “as well as the centrality of justice and other statebuilding components to such work.”
Similarly, the notion that a society has certain amount of resilience—which refers to its ability to return to stability after experiencing a shock or crisis—depends in part on its social cohesion, which transitional justice may increase if it can strengthen connections between groups of citizens.
“Transitional justice seems most likely to promote resilience when it is designed and implemented primarily by local people and in ways that accentuate existing strengths of the social system,” suggests Eric Wiebelhaus-Brahm. “At its best, transitional justice may help promote government responsiveness and empower marginalized populations.”
Finally, the notion of transformation emphasizes the importance of local agency in addressing past injustice. A note of caution is necessary however: while transitional justice processes can make contributions, they cannot remove root causes of violations on their own.
“The discussion about social change and transitional justice should be framed in terms of the transformative potential of transitional justice, rather than on alternative forms of justice,” argues Clara Sandoval in her chapter. “It makes an explicit acknowledgment of the difficulties faced by transitional justice mechanisms when trying to achieve their objectives and contribute to achieving broader social change, while recognizing the opportunities that exist within the confines of transitional justice to bring about structural change.”
What does it mean to think about transitional justice as a series of mosaics rather than a set of measures?
Transitional justice contexts should not be defined strictly around formal peace agreements and changes of government, as the push for justice and resistance to it often begin before such events and persist long after. Indeed transitional justice contexts themselves may not always be readily recognizable and may exist in any situation where massive abuses are connected to a systemic failure in the rule of law. Opportunities should not be missed. The important thing is to understand the context in which any efforts can take place—which means proper analysis and assessments must be conducted to determine appropriate responses. It also means that justice-focused responses to massive human rights violations do not have to wait for conflict or displacement to end, as has been demonstrated in Colombia and now in the Syrian context by ongoing efforts to document crimes and make victims’ experiences central to discussions about how to resolve the war.
Given the difficult nature of these transitional contexts, however, the challenges facing attempts to address the past should be understood. Where institutions are fragile or corrupt, the dynamics of conflict are complex and shifting, problems such as inequality and marginalization persist, and powerful political actors are implicated in crimes, transitional justice will inherently be a struggle. This does not mean that justice advocates should back down, but rather that the difficulty of the contexts should inform our expectations and assessments of justice processes. Countries such as Argentina, Chile, and Guatemala are still holding perpetrators of crimes accountable decades after democracy was reestablished, so we should not assume that the fight against impunity has failed in countries where, for example, criminal prosecutions do not happen immediately.
Each context presents a unique mix of opportunities and challenges. Transitional justice can be seen in each case as a mosaic of responses to massive human rights violations. Holding perpetrators accountable, providing victims with redress, acknowledging the truth about what happened, and reforming the system so that it does not happen again—these are goals that can be achieved in different ways and at different times. The specific forms that justice efforts take should be the result of open and participatory processes in which victims and other local actors have a say. External support should therefore go to the actors, institutions, and conditions that advocate for and enable context-appropriate and feasible forms of justice.
In the long-term, the objectives that justice processes contribute to also depend on the context, whether it be one of restoring the rule of law, democratization, peacebuilding and conflict prevention, or development, or a combination of these. This is part of each unique mosaic.
Download your copy of Justice Mosaics: How Context Shapes Transitional Justice in Fractured Societies here. In it you'll find explorations of these questions and more:
• What is the role of religious institutions in transitional justice efforts?
• Can local communities devise ways to address large-scale atrocities and human rights violations?
• Is transitional justice possible if there is no political will?
• How do labor unions impact transitional justice processes?
You can also read ICTJ's analysis in a special report, available here.
Header image (left to right): Internally displaced persons inside a UN Refugee Agency (UNHCR) tent in Beto Timur, Timor Leste (Martine Perret/UN PHOTO); Judge Silvia Fernández de Gurmendi, President of the International Criminal Court (ICC); A woman who was abducted by the LRA as a girl teaches other formerly abducted women how to read in Gulu, northern Uganda, November 2015 (Marta Martinez/ICTJ); Tunisian activists at a protest in Tunis, July 2016 (Lina Ben Mheni); Posters of forcibly disappeared people in the streets of Guatemala City, June 2015 (Marta Martinez/ICTJ); A United Nations peacekeeper in the Democratic Republic of the Congo (MONUC) takes stock of weapons and ammunition collected during the demobilization process in Matembo, North Kivu, in the Democratic Republic of the Congo, November 2006 (Martine Perret/UN Photo). A book perforated by a bullet during the civil war in Lebanon won ICTJ’s youth photo competition (Sibylle George); Defense attorneys listen to rape victims testify against their solider clients during a mass rape trial in the town of Baraka, DR Congo on Feb. 16, 2011. (Pete Muller/AP Photo); Colombia’s President Juan Manuel Santos and FARC guerrilla leader “Timochenko” shake hands after signing the final peace agreement in Cartagena, Colombia September 2016 (Juan Pablo Bello/SIG); Drawing by a Ugandan child born in captivity during an ICTJ consultation on the redress needs for conflict-related sexual violence in northern Uganda, 2015 (ICTJ); A wrecked building in Beirut affected by the civil war in Lebanon (Haneen Tay); Nepalese women in the Terai region. (Adam Jones/Flickr); Skulls at the Choeung Ekn Genocide Memorial in Cambodia (ICTJ).