Transitional justice branches out: transitional justice and peacebuilding.

Position:International Law in a Multipolar World - Discussion

This panel was convened at 11:30 am, Thursday, April 4, by its moderator, Naomi Roht-Arriaza of Hastings College of the Law, who introduced the panelists: Payam Akhavan of McGill University; Deborah Isser of the Justice Reform Practice Group, World Bank; and Chandra Lekha Sriram of the School of Oriental and African Studies, London University.


Transitional justice (TJ), from its origins as a way of dealing with past grave human rights violations in Latin America, South Africa, and Eastern Europe during the 1980s and 1990s, has branched out considerably over the last quarter century. The techniques and discourse of TJ have been extended to a much wider range of events involving mass atrocities or international crimes, especially situations emerging from civil war or regional or ethnic conflicts. The Transitional Justice and Rule of Law Interest Group members have engaged in a number of discussions about the implications of this widening lens.

The aim of the panel is to consider whether, how, and why the field is expanding, in particular into the areas of international criminal law, peacebuilding and development, institutional reform and rule of law promotion, and socioeconomic rights (such as land restitution and reform). Like our panelists, we were concerned that this expansion would put more weight on the concept of "transitional justice" than it could bear. On the other hand, the framing of TJ as a component of a much larger--and longer--process of social reconstruction of societies seemed like a useful way to break out of the "silos" that many practitioners decry. We also noted a challenge to the "tool-kit" nature of many transitional justice initiatives, especially those encouraged and supported from outside the society that was supposed to implement them. We asked the panelists to discuss how, and whether, these newer interdisciplinary and often bottom-up initiatives have challenged dominant Western views of transitional justice's goals, scope, and priorities.

The first segment of the panel focused on whether the expansion of a TJ lens to issues like peacebuilding, rule of law, or criminal justice was desirable, and what difference it made to how practitioners worked on issues like demobilization of combatants, creation of political structures, or access to justice. The problem here is in part one of terminology--we discuss as TJ situations that are not "transitioning" to democracy, and at times situations that are not even transitioning to peace but are ongoing conflicts. When stretched beyond its original conception, does the nomenclature still make sense, at least as a way of shorthanding various ideas about "dealing with the past"? Or does it simply create conceptual confusion, and lump together discrete and different processes of peacebuilding, criminal justice, and structural reform?

Whatever the name, it does seem like frustration exists with the uncertain results of time-consuming and resource-intensive endeavors like truth commissions or international trials. This frustration is in part born of a desire to see results quickly, when social change is a generations-long process. One response is to see if by linking TJ processes to other kinds of reforms they can mutually support each other. That might happen through increased international attention and funding to issues that would otherwise receive less attention. For example, if we rebrand land or tax reforms as "guarantees of non-repetition," at least of * violations of economic, social, and cultural rights, that might bring earlier and more focused attention to the need for such reforms. However, the panelists also point out the opposite danger--that important reforms could be ignored or underfunded because all the energy and money is going towards a few high-profile TJ initiatives.

A second major focus of the panel was the local/global interface. In its origins, TJ insisted that certain obligations to investigate, prosecute, and remedy grave human rights violations were not simply matters of local politics or convenience. Rather, states were required under international law to take action, at least against the worst violations and violators. Advocates, family members, and human rights groups turned to the international arena to dislodge roadblocks and catalyze action, through regional and international human rights bodies and through criminal and civil cases brought in courts of third-party states under universal or passive personality jurisdiction. They also supported and worked for the creation of an international architecture of criminal justice, including the crowning achievement of that effort--the International Criminal Court. The UN also came on board, often advocating various TJ measures as part of a negotiated end to conflict.

At this point, there is concern that the ' 'internationalization' ' enterprise may have succeeded too well. One of the critiques of TJ has been that up until now it has been very top-down, often seen as part of a "UN package" of measures that, despite protestations to the contrary, are often part of a checklist or cut-and-paste prescription for countries emerging from conflict. The panel asked how practitioners could do a better job tailoring responses to the specifics of each country or area, without returning to the days when the issue of dealing with the past was considered to be entirely up to national governments, which often chose not to deal with it at all.

In particular, in considering "bottom-up" approaches we were interested in the role of traditional/customary or informal law in providing redress, allowing for reintegration of former combatants, and in creating meaningful expressions of rules and sites for conflict resolution. We also considered the role of informal, non-state efforts at truth-telling, including, for example, the Iran Tribunal, which convened in the Hague to consider the deaths in custody of almost 20,000 Iranians during the 1980s. The Tribunal issued its judgment early this year.

A third major area of debate and discussion concerned the intersection of TJ with development and economic justice. A major critique of TJ is that it has not engaged well with distributive justice, with socioeconomic rights. This is often cited as one reason why the results of TJ, and of transitions generally, have felt so limited from the perspective of people on the ground. It is also said to be due to Western dominance and a Western mindset focused on civil and political rights.

What would it mean in practice to emphasize economic, social, and cultural rights to the same extent as civil and political rights? In the rule of law area, it might mean dealing more head on with corruption, as well as improving access to justice for the poor to claim their rights. We asked the panelists whether it makes sense to talk about corruption as a transitional justice issue, given the far less obvious consensus on what behavior is in fact unlawful and how to deal with it. What about the complicity of economic actors--financiers, traders in conflict minerals, corporate union-busters, and the like--in aiding and abetting grave violations of physical integrity? Should these be considered when outlining a policy of prosecutions, or truth-seeking, or reparations? Should they be a major focus of reform efforts under the rubric of "guarantees of non-repetition?" Or does TJ end up simply being a diversion from broader efforts at economic justice that are better framed as questions of development?

Another variant on the emerging relationship between TJ and related issues is the relationship to land. One of the emerging issues throughout the world is that of forced displacement, forced eviction, land-grabbing, and so forth, whether as a result of armed conflict (as in Colombia) or from more recent processes of resource extraction or commercial agriculture. In many cases a skewed pattern of land ownership underlies many conflicts. What, if anything, should TJ do to address issues of land and natural resources? The question is especially pertinent since the failure to deal with impunity in the past can affect how conflicts over land and resources are confronted in the present, and the failure to deal with land issues can underlie recurrent conflicts.

A stellar panel discussed these and related issues, with a range of viewpoints. Their thoughtful responses showed that there are no easy answers to any of these questions, but that continuing debate and discussion can be useful.

* Professor of Law, Hastings College of the Law.



As the request that I speak about transitional justice and peacebuilding indicates, transitional justice has indeed branched out. We have come a long way from the "justice versus peace" debates of the late 1980s and early 1990s. Today what we see, I would argue, is the complex interaction between two highly professionalized, transnational or internationally led sets of activities--transitional justice and peacebuilding. These may be complementary, but in reality there are tensions among practitioners over goals and specific techniques and tools. This is in part because of a lack of sufficient or mutually comprehensible communication between practitioners of transitional justice and peacebuilding, who have traditionally different types of practitioners, training, and constituencies. Yet at the same time, transitional justice activities are increasingly either subsumed within or operate alongside peacebuilding operations.

Consider, for example, the relationship between transitional justice reparations for victims and peacekeeping/peacebuilding disarmament, demobilization, and reintegration (DDR) programs for ex-combatants. Practitioners of each often assume either that these...

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