Students on our Master of Science in Public Policy and Human Development (MPP) were asked to write a critical opinion about a dispute resolution mechanism — and how it might protect both human rights and development.
Below are two essays on transitional justice, covering a range of critical issues from around the world. The authors trace the links between human rights, development and transitional justice, while considering achievements, limitations and the path to sustainable peace.
How transitional justice can foster human rights and development by Nadia Feldkircher
After the end of an armed conflict, many countries find themselves unable to regularly prosecute the crimes that occurred. In the fragile period after a conflict, a country needs to deal with a wide range of problems: the disarmament of fighters, displacement of people, reconstruction, re-establishment of the rule of the law. The lack of resources, missing information and non-functioning institutions make prosecution difficult, yet one of the most important needs of communities that have experienced gross human rights violations is to receive justice and feel safe again: the perpetrators must pay for their crimes, despite the current inadequacy of the justice system.
To address this need, many countries have used transitional justice. Transitional justice is a broad concept that covers several measures, such as creating truth commissions, prosecuting serious crimes, offering financial reparations, planning institutional reforms, and documenting crimes for posterity. These measures are not mutually exclusive but complementary. According to the UN Secretary-General, transitional justice aims at ensuring accountability, serving justice and achieving reconciliation. Together, these measures can help a society cope with what has happened.
While the International Criminal Court usually prosecutes genocide, crimes against humanity, war crimes and crimes of aggression, there are however a wide range of crimes that – while not as heinous as the abovementioned – do take a toll on the population.
For example, looting, the burning of houses and of land, and the destruction of infrastructure can seriously impair post-conflict development. To address these crimes, some countries have used community-based solutions. For example, Timor-Leste has relied on a Community Reconciliation Process (CRP) in which perpetrators have been able to confess what they have done, ask the victims for forgiveness, and receive a punishment aimed at ‘restoration’ – for example community service or reparation. The hearings were public so everyone could participate, and victims had the chance to ask questions and make comments. More than 1300 perpetrators participated, on a voluntary basis.
This process has been particularly important for victims in Timor-Leste. The conflict they experienced started in the 1970s when Indonesia invaded the newly-independent, former Portuguese colony — a conflict that would last more than 20 years. The presence of pro-Indonesian and pro-independence factions created a divide in society: reconciliation meant overcoming that divide.
Community reconciliation processes help communities regain trust and look at the future. Including all actors and giving everyone a chance to speak about what has happened increases the agency of people and legitimises decisions that results from it. Furthermore, those CPRS can increase citizens’ trust in the institutions since they are generally mandated by the State; this is particularly important in countries that have experienced bad governance in the past.
While transitional justice addresses individuals’ faults, the question remains on how to solve systematic, structural, and institutionalised discriminations aimed at particular groups of people. When discriminations are institutionalised, punishing a single person does not eliminate the chance of them occurring in the future. Discriminations may be ingrained in the law, customs, and physical spaces where community life takes place. If transitional justice is meant to be truly restorative, then it needs to examine the social roots of those discriminations, and work to eradicate them. This is important precisely because inequality, lack of resources, lack of economic development, gender disparities and oppression of minorities are catalysts for conflict.
Transitional justice therefore needs to expand its focus and include development in its approach. In Timor-Leste, the Commission for Reception, Truth and Reconciliation found that “the freedoms which are essential to exercise the right of participation were repressed under both the Portuguese colonial system and the Indonesian regime of occupation”, and that the system of representation of Timor-Leste served the interests of those in power. To readdress these issues, Timor-Leste underwent a comprehensive reform of its ruling system. The Commission also recognised that during the Indonesian occupation forced displacement was a common practice motivated by economic interests in certain resource-rich areas. The Commission recognised this as an infringement of the right to land and requested an inquiry into land disputes. Another right which was denied to the Timorese people before the conflict was the right to education, which was a vehicle for propaganda during the Indonesian occupation, and broadly lacking during Portuguese rule. By looking beyond the conflict, Timor-Leste was able to improve on many of those aspects.
A narrow vision of transitional justice can improve the lives of individuals and even whole communities by offering them a platform to reconcile. However, a broader definition of transitional justice can help solve structural issues related to inequality that are often the very cause of a conflict. The aim of policymakers should not be to bring the country back to a pre-conflict status quo, but to look at the broader picture and recognise the origins of inequality, thus leading the way to development
Can Truth alone rebuild a nation? by Maurice Thaidigsmann
Some 25 years after the end of apartheid in South Africa, the nation remains one of the most economically unequal countries in the world. The top 1% own more than 70% of the country’s wealth. Corruption and xenophobic incidents cripple the country’s development and rule of law. After the end of apartheid, the truth and reconciliation commission was installed as a mechanism of transitional justice, giving dignity to victims and recommending new structures to avoid future abuses. The South African case highlights that the short-term success of truth commissions depends on their design, however they cannot secure sustainable peace without additional means of transitional justice.
The South African Truth and Reconciliation Commission (TRC), established in 1996 after the end of mass-abusive apartheid, is one of the most famous examples of its kind. The TRC has been described as “a staple of post-conflict peacebuilding efforts”. In peaceful transitions without a clear victory, these commissions can prevent vengeful responses of the justice system, while knowing the truth is a precondition for accountability as well as sustainable peace. The reconciliation aspect in South Africa’s commission aimed at a common, nationwide effort to achieve both. Many dimensions of commissions affect their contribution to reconciliation, including funding, mandate, composition, publicity, transparency, or legal power.
Ideally, truth commissions should play an important role in the healing process. They are less combative than legal prosecutions and focus instead on the structures behind mass human rights abuses. In the case of South Africa, there was also a clear mandate to recommend institutional reform. These reforms constitute the official step of building a new national identity around remembrance, while also preventing future abuses.
However, research suggests that truth commissions alone cannot possibly support a successful state-building process. Many current problems in South Africa can be traced back to the failure to embed the TRC in a more encompassing process of building sustainable peace, based on a new national identity, democracy, human rights.
In post-apartheid South Africa, the TRC revealed truth as a dual-use instrument. Truth and amnesties can heal and reconcile, but can also lead to frustration and even vigilante action. Political violence and violent crime are intertwined in South Africa. It was possible to contain resentment and re-emerging violence in the early post-apartheid days, but long-term peace through truth requires broad and solid democratic education. South Africa has been relatively successful in this regard – for example through free primary education and museums, but it still lacks free quality higher education, to shape new leaders from the bottom-up. Leaders able to hold the nation together, while remembering the crimes revealed by the TRC.
In addition, a credible condemnation of crimes allows for a clearer distinction from the previous regime and strengthens the rule of law, while in South Africa the masterminds behind apartheid got away – president de Klerk even served as deputy president in the new government.
However designing a truth commission as the basis for later prosecution does not work either because it limits the willingness of perpetrators to fully disclose their crimes. Alternative forms of punishment (e.g. exclusion from powerful positions) or international legal proceedings concerning only the leaders behind the atrocities – as done in the post-war Nuremberg Trials in Germany – can be a solution to this dilemma.
Truth commissions also operate in the context of existing institutions, rendering the inclusion of local and traditional courts important. They were mostly excluded from the TRC process, leading to legal pluralism with local courts more focused on retaliation.
This also shows that larger societal effort of accepting the truth for reconciliation instead of vengeance is necessary for sustainable peace. This can even include formal consensus on the narrative of what happened. The widespread opposition towards the TRC’s final report and the dissatisfaction of many victims indicate that despite a strong focus on reconciliation, the fundamental issues could not be resolved through a truth commission alone.
The TRC also had a mandate to give recommendations addressing the structural causes behind abuses. This process is highly dependent on the political will for implementation. South Africa in the 21st century lacks this commitment, leaving justice to vigilantes, breeding corruption and institutionalizing racial conflict. Moreover, the recommendation for reparations was only partially followed by the new government, dissatisfying victims and their families.
The positive impact of truth commissions on victims’ psychology, unveiling past abuses, and identifying patterns of violence is relatively uncontested. The evidence is strong that they should be used as a basic instrument in post-conflict reconciliation. However, truth commissions alone are insufficient to provide for effective, sustainable state-building. Many post-conflict societies avoid a comprehensive approach because of political or practical reasons – a decision that often backfires in the long run.
This is the second year our students have published their views; see last year’s here.
The opinions expressed here are the authors’ own; they do not necessarily reflect the views of UNU.
UNMIT / M.Perret; UN Photo / M.Grant