The issue of transitional justice in post-conflict societies has become increasingly important in recent years. This paper from the Geneva Centre for the Democratic Control of Armed Forces examines forms of transitional justice. It looks at truth commissions, local courts and traditional methods of justice which have the greatest potential for local ownership. It argues that local ownership is crucial to the success of the post-conflict reconstruction process.
Reconciliation is the objective of post-conflict reconstruction processes but is often vaguely defined. National reconciliation is achieved when societal and political processes function and develop without reverting to the framework of the conflict. Individual reconciliation is the ability of each human to conduct their life without fear or hate. The distinction is central because some transitional justice mechanisms promote one type over another. There is a growing consensus of the nexus between peace and justice. The justice debates infer that justice in the form of criminal proceedings followed by punishment will not lead to reconciliation. However, certain mechanisms of retributive and restorative justice can support reconciliation in particular contexts.
Findings about the different forms of transitional justice include:
- Truth commissions give a voice to the voiceless. However, recommendations are often ignored. They are less politically sensitive because they are unable to punish and can therefore be used to avoid issues of transitional justice. The lack of accountability can undermine the transition process.
- Civil society in numerous post-conflict societies has demanded trials and retributive justice. Stability may be threatened if no action is taken. Accountability must be established from the very beginning.
- However, in some political situations trials are not possible. Local judicial systems may be unable to handle the number of cases. Moreover, local trials focus on the perpetrator not the victim and on individual guilt rather than widespread abuse.
- Traditional methods of justice are increasingly promoted as a means of reconciliation and tools of conflict resolution.
- However, they frequently deny the perpetrator a fair trial. Punishments can be against international laws and standards. They are designed to deal with minor crimes.
Three factors must be ensured in a post-conflict society, irrespective of the types of transitional justice mechanisms that are implemented. Local ownership must be assured. Needs assessments must be conducted prior to establishing or recommending the types of mechanisms. The international community should make several options available that can be implemented in a complementary manner. Specific recommendations include:
- Acknowledge truth as a difficult concept. Cover the truth commissions extensively in the media.
- Assess the use of amnesties and its consequences. Inform and educate civil society as to what a truth commission can achieve and what its objectives are. Local political willingness is essential for its success.
- Reform the judicial system and the judiciary from the beginning. Establish ad hoc solutions to address perpetrators of past human rights abuses, Develop an international transitional law based on international human rights standards, norms and laws.
- Assess traditional mechanisms before encouraging their implementation. Establish what level of crimes they can be applied to. Acknowledge the vast variations between mechanisms and assess their viability.
- Be aware of the potential effects on the judicial regime and public security forces. Educate civil society that traditional mechanisms can be complementary to formal judicial mechanisms so as not to undermine the reformed judicial system. Implement the mechanisms consistently.