This article from the Human Rights Quarterly questions the presumption that trials and/or truth commissions should be an early response in initiating a transitional justice process. A multi-factorial, qualitative analysis of seven case studies suggests the need for a fuller appreciation of the dynamic system in which transitional justice interventions occur. It is important to consider what the affected society wants and how a response can be tailored to the particular cultural, social, and economic contexts.
Transitional justice involves processes of transformation that may be initiated or supported by particular interventions. While it has been expedient to institute trials (local or international) and/or truth commissions, neither mechanism is guaranteed to resolve these underlying structural and social causes that led to the violence. Attention to the underlying socioeconomic disparities and inequalities in the country, in conjunction with structural change in the way that the country is governed, may be the most important first steps in developing an appropriate response to perpetrators of violence.
The principal factors that influence the choice and timing of trials and truth commissions are: (1) a country’s capacity for autonomous resolution of conflict and self-determination with regard to transitional justice mechanisms; (2) the legacy of colonialism, and (3) the cultures and traditions of a country. Other issues raised include the following:
- Transitional justice policy and implementation is usually ahistorical or decontextualised, but history and current context exert a profound influence on the ability of a society to respond to state repression or mass violence.
- There is a divide between ‘self-reliant’ and ‘internationally-reliant’ countries that raises questions about a universal approach to justice—in particular in the form of criminal trials—in the immediate aftermath of a period of repression or mass violence.
- When compared to the mixed results of the rushed responses in internationally-reliant countries, ‘self-reliant’ countries seem to have benefited from proceeding slowly, with greater internal political stability and support. Open-ended processes of reckoning that develop over time may not only be inevitable, but welcome.
New thinking is required about the relationship of justice to societal transitions; the current analytical framework through which transitional justice measures are promoted should be reframed. The following guiding principles are recommended:
- Better modelling of dynamic social systems is needed to track developments in countries over time.
- Trials and truth commissions do not bring about the rule of law but are important symbols of the importance of and fealty to the rule of law; legitimacy of domestic legal systems is critical to the success of transitional justice. Where trials and truth commissions are instituted, it is important to capitalise on their potential to impact law reform more generally.
- Histories of external intervention impact transitional justice initiatives and need to be considered at all phases of the process. The need for the rule of law is greatest in countries in which colonialism and foreign intervention has been problematic. Indigenous alternatives to foreign models of reckoning should be considered while guarding against their cooption by governmental agendas or reification of distorted local power relationships.
- Sustained focus on the underlying causes of the conflict is essential. The role of international involvement in this area should vary depending on the context but be guided by the need to strengthen internal processes to address power imbalances without dictating their pace or outcome.
