Transitional Justice and Accountability

Transitional Justice and Accountability

Hello and welcome. My name is Chihiro Isazaki and I am a law fellow here at the Public International Law and Policy Group. This training module will provide you with an introductory overview of transitional justice and accountability. Let's begin. Let's start with the basics. What is transitional justice?

Transitional justice is a set of processes meant to address the consequences of conflict or repressive regimes and establish sustainable peace. Let's explore this definition in more depth. First, it is important to acknowledge that the term transitional justice can mean very different things to different persons, depending on their backgrounds, work, communities, and lived experiences.

Generally speaking, transitional justice refers to the set of judicial and non judicial measures that can be used in a society to redress and remedy a legacy of human rights abuses. Transitional justice implies a process of achieving justice during or after a transition from periods of conflict or violence into peace.

Next, let's look at why transitional justice is significant for a society grappling with a legacy of human rights violations. At its core, transitional justice aims to promote reform and reconciliation, prevent future conflicts, strengthen democracy, and establish the rule of law. Ignoring a history of abuse can make building lasting peace more difficult.

Acknowledging and reckoning with the governmental structures and societal divisions that allowed the abuses to occur is the first step towards rebuilding a peaceful society. Remember that transitional justice is an approach to justice rather than a type of justice. Various types of just transitional justice mechanisms may be included under this broad umbrella.

Common transitional justice mechanisms include, but are not limited to prosecutions, truth seeking mechanisms, institutional reform, reparations, and memorialization. Now let's look at the different ways in which transitional justice mechanisms are established. Transitional justice mechanisms can be established through a variety of different techniques.

When designing and implementing a system of transitional justice, states can combine various mechanisms to create a transitional justice program that responds to the specific circumstances and abuses in that state. Different transitional justice mechanisms can operate simultaneously and in tandem.

Ideally, all of these mechanisms will complement and reinforce each other throughout transitional justice processes. Broadly speaking, transitional justice mechanisms may be established through four primary means. Firstly, it may be established through agreements reached between parties to a conflict.

For instance, the International Crimes Division, a special division in the High Court of Uganda, was established in accordance with the Comprehensive Peace Agreement between the government and the Lord's Resistance Army, which is an opposition group. Second, it can be established domestically by the state's own government.

Depending on the context, this might be a transitional government, a newly established permanent government following a political transition, or the government that existed prior to the conflict, among others. For instance, following post electoral violence in Côte d'Ivoire in 2010 to 2011, the Dialogue, Truth, and Reconciliation Commission and National Truth Commission was established to investigate violations.

It can be established locally by affected stakeholders. For instance, the Buganda community in Uganda has instituted the practice of Kitawuliza, a part judicial, part reconciliation process as a means of transitional justice. Fourth and finally, it can also be established by intervention of the United Nations Security Council, such as through the establishment of an ad hoc international tribunal for the prosecution of war crimes.

For instance, the International Criminal Tribunal for the former Yugoslavia was established through a UN Security Council resolution.

It is important to remember that transitional justice processes can and have been put in place before complete peace has been achieved. Of course, ongoing conflict presents a series of challenges for the establishment and operation of transitional justice mechanisms, such as an uncertain political and security environment.

flawed institutions, or insufficient resources. Similarly, transitional justice mechanisms that do operate during conflict may be biased or be perceived as biased. They may also have difficulties connecting with witnesses, victims, or repentant perpetrators who fear retribution from at large perpetrators, or who lack the resources to participate in transitional justice processes.

However, these challenges will not necessarily apply to each situation or to the same extent in each locality, area, or state experiencing conflict. Even during conflict, transitional justice processes can and do move forward. If we examine past state practice, we will see that all recognized transitional justice mechanisms, from international prosecutions to traditional justice processes, have been employed during conflict.

Given the various challenges that operate during conflict, there are certain key considerations to be mindful of when considering the structure of a transitional justice process. Thinking through these considerations may lead to a more successful process. For prosecutions, think about whether a fair trial is possible despite the state of conflict.

Are fair trial standards being respected? Are courts still functioning? And are arrest warrants being executed? Is there local ownership of the trial process? For reparations, consider how a lack of resources may impact the success of a reparations program. Additionally, think about whether victims actually stand to benefit from the proposed programs.

Do victims have faith in the proposed programs? For truth seeking, think about whether the process is fair and inclusive. Are the commissioners neutral parties who are selected through neutral processes? Were victims and witnesses adequately consulted? For memorialization, will the memorial disproportionately advantage some narratives of the conflict while silencing others?

In all cases, ongoing conflict can make the operation of transitional justice mechanisms more complicated. Tensions run higher, bias is more likely, and resources are less available. So, while designing transitional justice processes during conflict, it is doubly important to focus on ensuring that the process is fair, inclusive, and free from bias.

Remember that even if it is not possible to fully implement transitional justice mechanisms during ongoing conflict, the preparation and planning for the mechanisms can begin prior to the resolution of conflict. For instance, even if a particular piece of legislation on reparation for victims cannot be passed by the government until the conflict has been fully resolved, it is possible to create drafts, Generate advocacy and solicit public feedback prior to the resolution of the conflict.

Adequate planning and preparation prior to implementation can help set the stage for successful implementation once peace has been achieved. Therefore, transitional justice does not need to come to a standstill as communities await peace. Transitional justice can and does continue, but requires more conscious and informed decision making.

As noted by former UN Secretary General Ban Ki moon, the most successful transitional justice experiences owe a large part of their success to the quality and quantity of public and victim consultations. Ensuring open lines of communication between the government and local and victim communities is key to designing a successful, comprehensive, and inclusive transitional justice framework.

Ideally, transitional justice processes should reflect the experiences, needs, priorities, and entitlements of those affected. It is crucial that government actors conduct comprehensive community needs assessments, and based on the results of these assessments, design transitional justice platforms that respond to particular transitional justice needs.

And equally, strategic advocacy by civil society at this stage can be very effective in ensuring an inclusive dialogue. As transitional justice processes are implemented, it is important that sustained engagement between government and civil society actors continues, and that community feedback continues to be incorporated.

Engaging with affected communities means ensuring that affected persons are empowered and feel a sense of ownership and can put their faith and trust in the transitional justice process.

In terms of how community feedback can continue to be beneficial as transitional justice platforms are being developed and implemented, it is important to consider the following. Community feedback could feed into the design of specific aspects of transitional justice mechanisms and projects. For instance, Community input about the situation of displaced persons could help civil servants identify potential avenues for legislation on displacement.

Do displaced women need special protection under the law? What about displaced children? How would legislative protections for displaced persons fit within the larger transitional justice framework? Forums for community input could trigger important debate within communities and amongst community actors, not just between governments and communities.

For instance, discussions on a proposal for institutional reform could spark conversations among community actors about complex questions such as the relationship between customary law and judicial reform. Even after the basic frameworks of transitional justice mechanisms have been built out, two way dialogues between the community and the government can be helpful in identifying potential shortcomings.

For instance, inviting public feedback on a draft bill on reparations could help bring to light communities that have conventionally been excluded from reparations programs. Public discussions on topics such as judicial accountability can renew wider public interest and engagement in transitional justice as a whole and can help re energize previously stalled processes.

This concludes our module on transitional justice and accountability. I hope it provided a clear picture of what transitional justice entails and the key principles of designing a successful transitional justice mechanism. Thank you for watching.