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Conciliation
Last Updated: 06/01/2012
Transitional justice: Embracing the complexities
Pamela Kovacs

Transitional Justice is a field of complexities and differing perspectives. Through analysis of truth commissions and amnesties as transitional justice solutions, Pamela Kovacs argues that embracing this complexity is necessary. Terminology like “victim-centred” and “justice” attempt to simplify and categorize behaviours and past injustices that are inherently complicated and perspective-driven.


Transitional justice can be viewed from many perspectives, using a number of different lenses. A human rights lens generally favours an international approach of accountability, perpetrator identification, investigation, prosecution, and redress for victims.[1] A restorative justice lens favours local solutions that involve truth telling and reconciliation. In the transitional justice context, what is ideal is often not available due to inherent limits on state infrastructure and budgets[2] following gross human rights violations, extreme violence, and often civil war.[3] What emerge are compromises that blend conflicting notions of human rights, truth, justice, and the exercise of state sovereignty as against international legal obligations. Although many dislike the word compromise with its lose-lose connotations rather than win-win implications, it perhaps most realistically represents transitional justice solutions. These solutions inherently involve discussions of “what one is seeking to achieve” which highlights that different goals, cultural traditions, pragmatics, and ideas of justice will necessarily be involved.[4]

Truth commissions and conditional amnesties are two transitional justice solutions that find grounding in restorative justice principles and are often seen as justice options that support a victim-centered approach. Together they provide access to the truth and the possibility of amnesty, but not its guarantee. This paper will provide a brief overview of restorative justice philosophy and its critiques and then focus specifically on truth commissions and conditional amnesties within the transitional justice context. It will be argued that it may not be useful to use the term “victim-centered” as this detracts from the simple reality that victims are all not alike and possibly narrows the thinking about what justice is, should be and/or can be. And it also perhaps constrains our understanding of the complexities of transitional justice.

Restorative Justice

Restorative justice has been defined in a number of ways, but a common theme is an expansive view of who should be involved in justice solutions and realignment towards the victim rather than focusing exclusively on punishment of the offender. The origins of restorative justice are in domestic legal systems at the local level trying to be more responsive to victims, cultural realities, and to achieving better results than available within traditional criminal justice models. It is a “victim-centered approach of compensating victims or providing restitution to the victim.”[5] It is also held out as a way to find hope and transition within crime and punishment by creating “new opportunities for transformation and empowerment and ultimately to reduce recidivism and reintegrate offenders.”[6] A number of different practices fall within restorative justice, including apologies, restitution, and acknowledgments of harm and injury. At its most idealized, it is an attempt to “repair, restore, reconcile, and reintegrate the offenders and victims to each other and to their shared community.”[7] It is perhaps inaccurate to view it as mainly victim-centered as it is also holds appeal for offenders who receive reduced or often no time in jail after admitting their guilt.

Restorative justice is an idea or philosophy rather than a prescription for how justice should be done.[8] There are core concepts, but not one uniform way of achieving the justice sought. In transitional justice, these concepts are often very much in play. For instance, “should right-making of wrongdoing be backward facing (punishment and legal justice) or future facing (reconciliation, restoration, and social justice)?”[9] And who is or should be involved as a participant and stakeholder?[10] As Aukerman points out, “transitional justice must reflect the needs, desires, and political realities of the victimized society, while at the same time recognizing the international community’s right and responsibility.”[11] Under a restorative justice model, the wider community has a role to play in addition to the individual victim.[12]

Restorative justice models are not without criticism. Mendel raises several questions regarding these models – are they actually effective, are victims coerced, are offenders coerced , are particular groups advantaged or disadvantaged, are all types of crimes appropriate within this sphere, can the sphere be effectively translated into the national or international level, should they be state run and mandatory or bottom-up and voluntary, are there any cost efficiencies, is the focus being removed from blame for past wrongs, is individualized justice detracting from equity-based justice, is the public function of justice being removed and the setting of precedents being lost, can notions of restorative justice work well for both the individual and the community, and is it more utopian than effective?[13]

These are all important questions, and apply equally in the transitional justice context where societies are attempting to rebuild and transition into something better than where they have come from. Truth commissions and conditional amnesties find their place in this mix and necessarily encounter many of these same critiques and questions.

Truth Commissions & Amnesty

The establishment of truth commissions has a long history. From national commissions in, inter alia, Argentina and Chile to those in South Africa, El Salvador, Honduras, and Timor-Leste, truth commissions can have very different mandates with very different powers.[14] A common theme is the granting of amnesty for the telling of truth. The Report of the Independent Expert to Update the Set of Principles to Combat Impunity[15] notes in Principle 6 that truth commissions should be implemented and designed only after broad gender-balanced public consultations.

It is often difficult to reconcile amnesties with a victim-centred approach. Amnesty is the “annulment of the appropriate retributive penalty in return for truth-telling”[16] which is often not conducive to notions of peace and justice. Mallinder points to provisions for effective victim-centered amnesties including democratic legitimacy, genuineness, limited application and exclusions for those “most responsible,” conditions, and the inclusion of reparations.[17] In particular, conditional amnesties are designed to limit the application of full amnesty where established criteria are not met. Prosecutions are then possible and encouraged. Mallinder points to conditions such as truth-telling, remorse, and non-criminal sanctions as examples of conditionality and highlights that conditional amnesties must be “representative of the population.”[18] This is perhaps asking a lot of societies in transition.

For instance, in the South African Truth Commission, amnesties were available only where individuals made “full disclosure of all relevant facts relating to acts associated with a political objective.”[19] Political objectives were furthered defined in relation to motive, context, legal and factual nature including gravity, the object and direction, whether committed in execution of an order, and the relationship (directness, proximity, proportionality) to the objective pursued. Excluded were acts, omissions, or offences for personal gain and personal malice. But many in South African society rejected the granting of amnesties, conditional or otherwise, at all.[20]

In the transitional justice context, over time, the trend for amnesties has been from “broader to more tailored, from sweeping to qualified, from laws with no reference to international law to those which explicitly try to stay within its strictures.”[21]

The Report of the Independent Expert to Update the Set of Principles to Combat Impunity also made recommendations in relation to amnesties in Principle 24 which highlighted the importance of the victim’s right to know.[22] And it is this right to know that is often touted as the reason for truth commissions and conditional amnesties, but “the fundamental difficulty with restorative justice is that it cannot adequately address demands for retribution. This is not really a problem with restorative justice itself, but rather with the difficulty of reconciling two competing goals of transitional justice.”[23]

Even victim-centered approaches will not achieve complete victim satisfaction, particularly for those who seek real punishment, accountability, and/or compensation. And perhaps the use of the term is itself problematic as it suggests satisfaction for a broad spectrum of individuals who likely have their own diverging views of justice. What is perhaps needed is simple recognition that transitional justice, by definition, will be incomplete and imperfect. It will be a compromise and it will be pragmatic rather than ideal.

Conclusion

A restorative justice approach in transitional societies attempts to deliver justice under a “victim-centered” approach, which may include local cultural traditions, truth-telling, conditional amnesty, and reconciliation. However, the term “victim-centered” perhaps detracts from the challenges of transitional justice and suggests that compromises aren’t being made. There may be no win-win solutions. The compromises are not necessarily lose-lose, but they do exist and victims may receive truth, but not always justice and offenders may receive justice but not always restoration. Acceptance and acknowledgment of these realities creates a broad spectrum of justice that may not be ideal, but represents the complexity of transitioning societies and also transitioning notions of justice. There are many complexities and layers and it is perhaps best to embrace these rather than constraining justice through any one particular lens for transitioning societies.



[1] Roht-Arriaza, Naomi & Gibson, Lauren. “The Developing Jurisprudence on Amnesty.” Human Rights Quarterly 20.4 (1998) 843-885.

[2] For instance, the existing legal system may be newly constituted and there may be a lack of independence and legitimacy with ties to old regimes. Mistrust, fear, corruption or the inexperience of new appointees may all contribute to limitations whereby courts are not a “suitable vehicle for doing justice.” See: Supra note 1.

[3] Supra note 1 at 844.

[4] Aukerman, Miriam J. “Extraordinary Evil, Ordinary Crime: A Framework for Understanding Transitional Justice.” 15 Harv. Hum. Rts. J. 39 2002 at 43

[5] Ibid. at 77.

[6] Menkel-Meadow, Carrie. “Restorative Justice: What Is It and Does It Work?” Annu. Rev. Law Soc. Sci. 2007. 3:10.1–10.27 at 10.4.

[7] Ibid. at 10.2.

[8] Ibid. at 10.19.

[9] Supra note 7.

[10] Supra note 6 at 10.7.

[11] Supra note 4 at 46.

[12] Supra note 4 at 78.

[13] Supra note 6 at 10.6. Additional critiques are that inequities are created for victims and offenders, states focus more on docket-clearing that justice, religious overtones are prevalent, the process is watered-down without sufficient care and resources, and there is an emphasis on quantity rather than quality.

[14] See generally: Roht-Arriaza, Naomi & Gibson, Lauren. “The Developing Jurisprudence on Amnesty.” Human Rights Quarterly 20.4 (1998) 843-885.

[15] Promotion and Protection of Human Rights Impunity Report of the Independent Expert to Update the Set of Principles to Combat Impunity, Diane Orentlicher (Addendum). 8 February 2005. E/CN.4/2005/102/Add.1.

[16] Little, David. “A Different Kind of Justice: Dealing with Human Rights Violations in Transitional Societies. 13 Ethics and Int’L Aff. 65 (1999) at 73.

[17] Mallinder, Louise. “Can Amnesties and International Justice be Reconciled?” The International Journal of Transitional Justice, Vol. 1, 2007, 208-230.

[18] Ibid.

[19] Promotion of National Unity and Reconciliation Act 34 of 1995, extracted from Azapo v. South Africa Constitutional Court of South Africa, CCT 17/96, 25 July 1996 at 5.

[20] For instance, see Azapo v. South Africa Constitutional Court of South Africa, CCT 17/96, 25 July 1996.

[21] Supra note 1 at 883.

[22] Promotion and Protection of Human Rights Impunity Report of the Independent Expert to Update the Set of Principles to Combat Impunity, Diane Orentlicher (Addendum). 8 February 2005. E/CN.4/2005/102/Add.1.

[23] Supra note 4 at 83.


Pamela Kovacs is completing her MA in International Law and Human Rights at the University for Peace. She previously worked as a lawyer in Canada where she was introduced to restorative justice principles and programs.
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