Improving policies and activism through research | Lecturer in Global Governance, Researcher
What is transitional justice? How to conduct it? At the Peacebuilding and Statebuilding course (Oxford Department of International Development), we discussed this issue. 1. Transitional justice is a bridge between the past and the future: the goal is addressing the past as a way to build a more democratic, just, peaceful future (Blackford 2004). 2. Its origins are in the Nuremberg Trials and Tokyo War Crimes Tribunal. They re-emerged with the transitions to democracy in Southern Europe and Latin America, first as criminal trials and amnesties (from the mid-1970s), and later as truth commissions (in the 1980s-1990s). 3. There are three main approaches: (i) criminal trials (a form of retributive justice), (ii) amnesties, and (iii) truth commissions (a form of restorative justice). They are less a matter of choice than a reflection of what is politically feasible. 4. Criminal trials (domestic or international) have been conducted in Argentina, Rwanda, former Yugoslavia, and others. They can make clear that justice was done, act as a deterrent, and show to society the appropriate ways of solving conflict. International courts can promote universal standards of justice, and be an option when prosecuting the most powerful domestically is hard. 5. But criminal trials can produce a backlash (e.g., Carapintadas in Argentina in 1987). International courts have their own problems: ignoring crimes committed by the great powers, and creating a disconnection between criminals, victims, and communities. 6. Amnesties are a common ‘choice’. They may be (i) amnesty laws, exempting people from liability for crimes (e.g., Pacto del Olvido in Spain, Brazil in 1979, DRC in 2009), or (ii) official ‘amnesia’ (e.g., Namibia). Amnesty laws are ‘deals with the devil’, and may be necessary to promote peace, the rule of law, and democracy. They can work better if combined with strategies to advance reforms (e.g., Namibia) and strong institutions to enforce the agreements (e.g., South Africa). 8. Truth commissions are another strategy (e.g., South Africa). They are less confrontational than trials, promote reintegration, and give voice to victims. They are a good choice when stability depends on powerful groups that may spoil the transition. Yet, they may exacerbate tensions. In Guatemala (1998), Juan José Conedera was killed after the TRC’s report was made public. 9. Other strategies are traditional forms of reconciliation (e.g., Timor-Leste) or justice (e.g., gacaca in Rwanda), the latter more controversial. 10. Pragmatism is necessary. In the short-term, priority is averting atrocities and securing human rights (Snyder and Vinjamuri, 2003). Criminal trials are risky if political institutions are weak and spoilers strong. Trials, commissions or amnesties should be connected to reforms (e.g., creating an independent judiciary, SSR). E.g., a SSR should have been done in Brazil. Restorative justice should at the very least be as important as retributive justice.
