Transitional justice processes and mechanisms have been critiqued for being prescriptive and top-down – created and supported by the international community and national elites rather than tailored to the specific society. The prevailing policy options of criminal prosecutions and truth commissions (sometimes simultaneously) have resulted in an ‘almost prescriptive approach to “best practices” in dealing with the past’ (Fletcher et al., 2009, p. 210). Such a mechanical design and implementation of transitional justice in the immediate aftermath of violence may not resonate with local needs, meanings and practices, undermining a sense of legitimacy and ownership (Ramji-Nogales, 2010; Garbett, 2012; Gready & Robins, 2014; USAID, 2014; Robins & Wilson, 2015). A study on local perceptions of various ad hoc tribunals, hybrid courts and truth commissions around the world finds that failure to incorporate local preferences in design processes has often resulted in a disconnect between the mechanism and local populations and in some cases widespread rejection of the particular mechanism (Ramji-Nogales, 2010).
Local ownership is thus essential to effective transitional justice initiatives. Commentators suggest that, to build national ownership into such initiatives, it is necessary to understand and integrate existing traditions and cultures and to take into account the needs, views and attitudes of local populations at all stages (see van Zyl, 2005; Lutz, 2006; Fletcher et al., 2009; Garbett, 2012). While relying on universal standards of justice and human rights, it is essential to consider what is perceived as justice locally (Valji, 2009). For example, while legal trials may ‘honour’ victims in Western terms, such structured processes for eliciting victims’ testimony may not be appropriate in all settings. Other forms of storytelling may be more fitting (Barsalou, 2005).
It is important for academics and policy-makers to learn about local preferences and perceptions of transitional justice (Ramji‐Nogales, 2010; AIV & CAVV, 2009). This can be facilitated through empirical studies of the perceptions of local populations, focus groups and surveys of local traditions (Ramji-Nogales, 2010). Before the Commission for Reception, Truth and Reconciliation in Timor-Leste was established, for example, a steering committee underwent various consultations throughout the country to determine what kind of truth commission would most suit local needs (Triponel & Pearson, 2010). An understanding and incorporation of local preferences in transitional justice strategies can help determine the most appropriate mechanism(s), and could increase the legitimacy of transitional justice (Ramji‐Nogales, 2010).
National processes and international actors have often neglected spontaneous community initiatives to address local impacts of violence (Gready & Robins, 2014). It is important to study existing practices at the local level. In Guatemala, a range of local mechanisms were implemented in the aftermath of conflict. These included memorialisation initiatives, psycho‐social interventions, exhumations and conflict resolution based on Mayan methods. Such local practices should not replace national or international initiatives, but they can provide essential guidance on what would or would not resonate at a national level, what forms of reconciliation have already occurred and what remains to be done (Arriaza & Roht‐Arriaza, 2008).
Working with traditional actors is not, however, risk free. Localised justice is also a product of local power structures and dynamics, which may in some cases oppress certain groups (women, minorities), perpetuate inequalities and violate human rights (Valji, 2009; Andrieu, 2010; World Bank, 2012; Gready & Robins, 2014). It is important to critically evaluate local practices – to ask whom these practices serve and whether they have been compromised over time (Valji, 2009).
There may also be practical limitations to local mechanisms in the context of mass violence. Community-level justice mechanisms were often not developed to address the scale or types of atrocities committed during such conflicts (Valji, 2009; Allen & Macdonald, 2013). As such, they should be evaluated and considered on a case-by-case basis (World Bank, 2012).
- AIV (Advisory Council on International Affairs), & CAVV (Advisory Committee on Issues of Public International Law). (2009). Transitional justice: Justice and peace in situations of transition (No. 65, AIV/No 19). The Hague: AIV and CAVV.
- Allen, T., & Macdonald, A. (2013). Post-conflict traditional justice: A critical overview (JSRP Paper 3). London: LSE.
- Andrieu, K. (2010). Civilizing peacebuilding: Transitional justice, civil society and the liberal paradigm. Security Dialogue, 41(5), 537–58.
- Arriaza, L., & Roht‐Arriaza, N. (2008). Social reconstruction as a local process. International Journal of Transitional Justice, 2(2), 152–72.
- Barsalou, J. (2005). Trauma and transitional justice in divided societies. Washington, DC: USIP.
- Fletcher, L. E., Weinstein, H. M., & Rowen, J. (2009). Context, timing and the dynamics of transitional justice: A historical perspective. Human Rights Quarterly, 31(1), 163–220.
- Garbett, C. (2012). Transitional justice and ‘national ownership’: An assessment of the institutional development of the war crimes chamber of Bosnia and Herzegovina. Human Rights Review, 13(1), 65–84.
- Gready, P., & Robins, S. (2014). From transitional to transformative justice: A new agenda for practice. International Journal of Transitional Justice, 8(1), 339–61.
- Lutz, E. (2006). Transitional justice: Lessons learned and the road ahead. In N. Roht‐Arriaza, & J. Mariezcurrena (Eds.), Transitional justice in the twenty‐first century: Beyond truth versus justice (pp. 325–42). Cambridge: Cambridge University Press.
- Ramji‐Nogales, J. (2010). Designing bespoke transitional justice: A pluralist process approach. Michigan Journal of International Lawm, 32(1), 1–72.
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- Valji, N. (2009). Tensions between peace and justice in transitional contexts. In Rights-based approaches and humanitarian interventions in conflict situations (pp. 27–37). London: UK InterAgency Group on Rights.
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- World Bank. (2012). Report on development, fragility, and human rights. Washington, DC: World Bank.