Transitional justice: a holistic interpretation.

• Author: Boraine, Alexander L.
• Position: FOUNDATIONS

In 1995, three volumes entitled "Transitional Justice" were published by the United States Institute for Peace, edited by Neil J. Kritz. The foreword was written by Nelson Mandela, who had assumed the presidency of South Africa the previous year. In his foreword, he writes:

This important publication on transitional justice comes at a time when the world is grappling with the problems of governance, legitimacy, democracy and human rights. In recent years, particularly during the past decade, there has been a remarkable movement in various regions of the world away from undemocratic and repressive rule towards the establishment of constitutional democracies. In nearly all instances, the displaced regimes were characterized by massive violations of human rights and undemocratic systems of governance. In their attempt to combat real or perceived opposition, they exercised authority with very little regard to accountability. Transition in these societies has therefore been accompanied by enormous challenges. While it has signified new hopes and aspirations, it has at the same time brought into sharp focus the difficult choices that these countries would have to make on their road to democracy and economic progress. (1) This passage characterizes well the challenges and choices facing societies in transition. Despite the fact that "transitional justice" has become a widely accepted term, there nevertheless remains confusion about this concept. The word "transitional" itself is readily understood; it signifies that the old order is dying but that the new order has not yet been born. The Shorter Oxford English Dictionary of Historical Principles defines transition as "a passing or passage from one condition, action or (rarely) place to another. It is a journey--never short--often precarious." A country in transition is a country which is emerging from one particular order and

is uncertain and unsure as to how to respond to the challenge of the new. These countries face the problem of dealing with the past on the one hand and the challenge of new directions on the other. In addition, they face the problem of ensuring a sustainable peace so that democracy and economic growth can flourish.

It is when we come to the term "justice" that the issue of meeting the challenges of the future becomes more controversial. There are different types of justice. Justice is often referred to as retributive, restorative or distributive, or even as economic or social transformation. For some who are committed to criminal justice, there is a suspicion that transitional justice may be less than that; transitional justice, therefore, should be carefully defined in case it detracts from the strength and legitimacy of criminal justice, both domestically and internationally.

Transitional justice, however, is not a contradiction of criminal justice. It is a convenient way of describing the search for a just society in the wake of undemocratic, often oppressive and even violent systems. Therefore, rather than detracting from criminal justice, transitional justice offers a deeper, richer and broader vision of justice which seeks to confront perpetrators, address the needs of victims and assist in the start of a process of reconciliation and transformation.

The rule of law is fundamental to the existence of a free society. It separates humankind from anarchy. It follows that to maintain the rule of law, accountability for transgressions against the law is imperative. Over the past decade in particular, the prosecutions of war criminals have featured prominently. International criminal law has moved from the most important historical examples, namely Nuremberg and Tokyo, to a much wider legal response to most serious human rights violations--crimes against humanity and genocide. This shift from impunity to accountability, in terms of prosecutions, has become the defining feature of the international human rights movement.

It is quite understandable that supporters and advocates of these developments rejoice at the possibility of achieving justice for grave human rights abuses. To victims whose hands and arms were amputated in Sierra Leone, to HIV-positive rape victims in Rwanda, to families burnt out in their homes in East Timor and Bosnia, the day of reckoning for perpetrators brings enormous comfort. Therefore, while the search for justice is often imperfect, it is clearly well worth the pursuit.

Nevertheless, Professor Noah Novogrodsky, who has worked in the Special Court in Sierra Leone, acknowledges that all these international attempts at securing justice reflect very real political compromises. I would argue that the establishment of courts is a pale substitute for preventative action, and that prosecuting some--but not most--human rights violators simply constitutes realpolitik in another form. To put it another way, there are clearly limits to law: Whenever there are human rights violations on a huge scale, such as in the former Yugoslavia or Rwanda or Sierra Leone, it is impossible to prosecute everyone. Thus, while international criminal law offers a measure of personal culpability in the face of grotesque crimes, there are limits to what it can achieve. The horror of Darfur suggests that international criminal law is not the deterrent many had hoped. Further, there are considerable political restraints. Examples of this include the Extraordinary Chambers in the Courts of Cambodia, which will examine only the crimes of the Khmer Rouge committed between 1975 and 1979. The Iraqi Special Tribunal has no jurisdiction to judge crimes committed since the invasion of that country by the United States and its allies. For its part, the International Criminal Court labors under well-known U.S. opposition and cannot begin to apply universal rules to fully half the world's countries, including states like Russia and China.

All of this suggests that while criminal justice is extremely important, societies in transition need other instruments and other models in order to supplement one form of justice. Transitional justice does not conflict with criminal justice. In fact, advocating a holistic approach to transitional justice, which attempts to complement retributive justice with restorative justice, is of considerable benefit in the establishment of a just society.

I turn now to these five key pillars, which amplify a holistic approach to transitional justice.

ACCOUNTA...