1 What is Transitional Justice?
2. Approaches / Methods of Transitional Justice
The main purpose of this paper is to underline a special concept of justice, so called transitional justice [TJ], in cases of political transition, especially in post-conflict societies which have witnessed of mass-violence, human rights abuses and cruelties of authoritarian regimes.
In this paper, it is aimed to analyze and evaluate transitional justice in terms of its contribution to peace-building. The main argument is that Transitional Justice enables a more holistic approach which takes the restoration and reconciliation of the post-conflict societies into account, as well as the links between dealing with the past and building peace for the future.
This paper is composed of three parts, rightly so: Under the first part, the elements of the Transitional Justice (namely transition and justice) are discussed. In second part, the evolution of TJ approaches are listed and one by one explained. In conclusion, the mentioned main argument above is evaluated.
1. What is Transitional Justice?
The use of the term transitional justice has come to mean a transition in a liberalizing direction, which has been implemented since earlier in the 20th century in the democratic transition of West Germany, Italy, and Japan. Today, TJ became one of the central concepts of peace-consolidation in post-conflict societies. TJ has been developed especially since mid 90s, to ensure sustainable peace. TJ term defines a field of activity and inquiry, which focuses on how societies address legacies of past human right abuses, mass atrocity and grim social trauma, including genocide, civil wars, etc., in order to build functioning, democratic, peaceful relations.
The most widely recognised characteristics of TJ can be explained with two main points: First, TJ is not a special form of justice but justice adapted to societies transforming themselves after a period of pervasive human rights abuse (Bickford 2004: 1045). TJ includes the concept of justice (justice in transition). It is not only the prosecution of perpetrators, but also a broader form of justice with reparation and truth-seeking mechanism. The second characteristic is related with the term “transitional” refers a political transition, such as regime change. When the post-conflict society is in search of a new start, mechanism of TJ refers the needed support. In case of political transition, the democracy could be fragile or the existing judicial system is not effective enough to supply justice, or a large number of perpetrators are far beyond the capacity of the legal system to prosecute (Kritz 1995: 17). In that point, TJ seeks recognition for victims and promote fact finding in order to support peace, reconciliation and democracy.
1.1. What kind of Justice?
Justice, as a law term, defines conformity to truth and reality in expressing fair representation of facts, respecting merit or demerit; honesty; fidelity; impartiality; the justice of a description or of a judgment (dictionary of law.com).
Lets ask the following questions to challenging the definition above, what if during the transition in post-conflict societies judicial system is weak, corrupt or limited by barriers?, How could it be possible to talk about honesty; fidelity; impartiality in these transitional societies? There might be also an abundance of victims and survivors, many of whom would like the opportunity to tell their stories or receive financial compensation. As an answer of these questions, I would like to define two different concepts of justice which are usually used under state transition processes, retributive and restorative justice, in a comparative way.
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Source: Tiemessen 2006: 6
Retributive justice, which is related with criminal prosecutions1, regulates proportionate response to crime proven by lawful evidence. That is why punishment is justly imposed and considered as morally-correct and fully deserved (Maiese 2004: 1). The central idea is that those who do not play by the rules should be suffering penalties for their wrongdoing.
Retributive Justice still plays a central role in legal proceedings, responding to violations of international law and human rights (Benomar 1995: 32). Retribution argument briefly justifies punishment “on the grounds that persons guilty of offenses deserve” as a matter of justice (Teitel 1995: 146). In case of punishment, retributive justice is to be meted out in proportion to the seriousness of the crime. Under this argument, what we need to underline is the retributive justification is not concern to link punishment and democracy. In other words, there are reasons to punish the crimes which are committed by the despotic old regimes, rather than any future consequences of punishment for the new regime2.
The second justice approach, Restorative Justice is concerned with retribution and punishment as with making the victim whole and reintegrating the offender into society. This approach frequently brings a holistic3 dimension, so that the offender can better understand the effect of his offense had on the victim. Restorative justice may be defined as justice that restores communities or relationships. It is regarded as an alternative form of justice outside the formal judicial court system (Lambourne 2009: 31). We can list four keys values of the Restorative Justice as follows: (1) Encounter: Create opportunity for victims, offender and community members to meet to discuss the crime and its aftermath. (2) Inclusion: Provide opportunity for parties with a stake in a specific crime to participate in its resolution. They are now the main actors. (3) Reintegration: Seek to restore both victims and offenders as contributing members of the society. (4) Reparation: Active implementation of legislation and regulation on reparation. As a result of this processes, it is aimed to consolidate the emotional and financial restitution for victims and the restoration of community harmony.
In comparison with Retributive Justice that justifies punishment focusing on the crime, Restorative Justice looks to the future, aiming the creation and maintenance of democracy. In other words, the justification for punishment is accepted as a future social good, rather than the obligation to punish out of retributive concerns with past crimes. The main goals of restorative justice are as follows: (1) to provide victims a form of legal redress, (2) to defer future crimes, either as a detent specific to the same criminals, or as a general deterrent for society, (3) To provide the truth about the past, (4) To express condemnation of the crimes, (5) To support rule of law, (6) To restore faith in the judiciary, (7) To express who is a criminal, and outsider to society, (8) To stigmatize and to separate the military from the public realm, (9) To allow judicial resolution of past wounds, enable reconciliation of interests groups (Teitel 1995: 149).
Briefly, advocates of retribution assume that failure to punish the perpetrators of past human right abuses automatically condones these atrocious crimes, and that is why both constitutes an invitation to their repetition and undermines the rule of law. On the other hand, proponents of a more conciliatory (restorative) policy stress tactical and prudential considerations, contending that most emerging democracies are still very fragile and may not survive attempts to punish senior officers who still command support within the army. Their argumentation goes that “the best way to preserve democracy and human rights is to adopt policy of national reconciliation and amnesty for past abuses” (Benomar 1995: 33).
To notice the difference between two justice approaches, I would like to quote Desmond Tutu, comparing post- World War II Germany and South Africa after Apartheid regime:
“In World War II the Allies defeated the Nazis and their allies comprehensively and were thus able to impose what has been described as victor’s justice. There would have been no negotiated settlement and so no new democratic South Africa had the negotiators on one side insisted that all perpetrators be brought to trial. While the Allies could pack up and go home after Nurnberg, we in South Africa had to live with one another (Tutu 1999: 21-22).”
2. Approaches / Methods of Transitional Justice
Above I made the overall definitions of “transition”, “justice” and “transitional justice”. Now, I would like to underline different methods of Transitional Justice, comprehensively.
1 Such as war crime tribunals, hybrid tribunals, Ad-hoc tribunals which are explained below.
2 The nature of the crimes creates a duty to punish also under international law concerning human rights violations. This duty overrides the ordinary discretion of a sovereign state over questions of punishment.
3 Holistic approach of Restorative Justice implies taking into account the full range of factors that may have contributed to abuse and also active participation by victims, groups and the public. If the judicial measures are unlikely to suffice, this holistic approach is able to create another kind of reconciliation methods, such as gender justice, memorials, and institutional reforms.