Tuesday, 17 July 2012 10:58

Justice in Transition: Dealing with the Past in Peace Processes

‘Transitional justice’ has become an essential part of peacebuilding. As a tool for dealing with a violent past, it has taken centre stage. While there are multiple definitions, they often centre around the judicial and non-judicial approaches for dealing with the legacies of massive and systematic human rights violations, be that in the context of repressive regimes, or armed conflicts. More broadly, justice has a comprehensive role to play in all aspects of peacemaking, and not only as regards post-conflict peacebuilding and dealing with the past. Justice infuses all dimensions of a peace process.

But as the international practice of transitional justice has developed and clarified over two decades, the clarification has also brought a narrowing of the concept. Something important has been lost from justice and its support for peacemaking. A broader, multi-dimensional definition of justice in the context of peacemaking and peacebuilding will make this clear. If we extend our defining context out beyond the courtroom and into wider society, the term justice takes on a broader and more complex definition that crucially includes fairness. In this broader definition, transitional justice then has four dimensions:

Retributive Justice

This is the classical process of calling the guilty to account, and punishing them for their wrongdoing. It focuses on the offender and the crime – and the punishment. It is about doing justice for past actions. This is very important in a democratic transition: it is central in bedding down the rule of law, central in addressing some core victims’ needs, and central in establishing precedents to discourage future wrong-doing and ending cycles of impunity. It is the business of punishing those who deserve it. This is justice in the courtroom, in the tribunal, with wrongdoers, witnesses, judges, and clear laws that define guilt and punishment.

Restorative Justice

Here the focus falls more on the victim and the hurt caused, where ways to compensate for, or ‘restore’, the hurt are sought. Crucially, attention is given to the subsequent restoring of relations between victim and offender and – even more important – between victim and offender communities, which gives it a particular poignancy for reconciliation after violence. This is still about past actions, and about suffering and responsibilities. But it begins to move well beyond the confines of simple crime-and-punishment.

Regulatory Justice

This involves less the management of wrong-doing, and more the broader issue of setting fair rules for social behaviour. Not only is there a need to develop a post-conflict society where ‘those who do wrong will be punished,’ in other words, a deterrent system. Regulatory justice aims to provide a systematised definition of social right and wrong, from which grows an underlying shared value: that the legal system will apply its rules to all of us, that it will act fairly, that we can trust it. It fosters the understanding right across society, and especially in victim communities, that everyone is now, and often for the first time, subject to the same rules. It is where justice raises its eyes from the past, and begins to look towards the present and future.

For trust to develop between antagonistic communities, they must first be able to develop trust in their social and political institutions and processes. Regulatory justice says we have all now entered a future where laws, rules and regulations will treat us all equally. This signals a huge and vital change from a previous ‘unjust’ and biased regime.

Social Justice

Included in this idea are distributive and economic justice. This is the justice that ensures that all society’s goods (economic, political and social) will be shared in a fair way. That the old bias and discrimination and victimisation towards one or more sections of society are things of the past. It replaces the structural or indirect violence of the old regime. After violence or repression, social justice is a vital ingredient in building widespread and cross-community confidence in a shared future.

Retributive and restorative justice are already well accepted. They are posed as negatives: they prescribe what must not be done, and they provide remedy if it is done.

Regulatory and social justice are more positive: they prescribe what must be done, and provide remedy if it is not done. They are not new constructs, but they have fallen outside the usual definition of Transitional Justice. This is partly because the definition of ‘transition’ has narrowed to that between past and present.

If regulatory and social justice are reinstated, justice becomes more truly transitional between past and future. They address justice as fairness. They are essential dimensions of transitional justice, if we aim to base a society on principles of human rights, and to sustain a new political process.

Why it matters for peace processes

An overly retributive focus in transitional justice can all too easily have divisive effects during peace talks, and on the society it aims to serve. On the other hand, the broader definition of justice offers more for a greater range of actors to buy into, and may generate more options and avenues for negotiations, including guarantees for their future security, acknowledgement of what was done, and who was responsible, the present promise of future stability and fair treatment. This can, and often does, lessen the clamour for crime-and-punishment justice, and increase the broad social buy-in to a shared future, which is the basic requirement for success in the overall peacebuilding project.

In particular, during mediation, ‘transitional justice’ has narrowed to a ‘threat’ to conflict parties of accountability for past actions. This can seriously hamper negotiations. Widened to include all four dimensions, ‘transitional justice’ holds the potential to become more broad-based, more balanced, more acceptable and with component dimensions which may give more room for a trade-off approach in negotiations: for example, accepting accountability for past actions in return for fair future legislation over national resources.

Pointers for the EU

The 2009 EU Concept on Strengthening Dialogue and Mediation Capacities provides a starting point for more thorough developments in policy and practice for the EU regarding transitional justice:

“Although it is widely acknowledged that it is only through justice to victims that enduring peace can be achieved, there are often tensions between these two objectives, and the EU should consider on a case by case basis how best to support transitional justice mechanisms, including addressing impunity.”

In light of the discussion above, it also does not go far enough in its understanding of transitional justice – arguably limited to its retributive form at the expense of the other three dimensions discussed above. The result is that there is neither practical guidance for how EU and EU-supported mediators can practically approach justice and dealing with the past as part of wider peace processes.

This points to a number of policy implications for the EU:

  1. Integrate a more holistic and complex view of transitional justice, including dealing with the past and reconciliation, into current EEAS efforts to build peace mediation capacity.

  2. Identify what practical instructions are needed for in-country Delegations, EUSRs and others that are at the ‘thin edge’ of peace process support on transitional justice, dealing with the past and reconciliation.

  3. Integrate mediation, reconciliation, legal and social expertise in existing EU crisis management planning, expert deployments in the context of peace processes, and conflict analyses carried out by the EEAS.

  4. Develop ‘learning tools’ such as tailored training modules for EU practitioners on this issue, including the concrete dilemmas but also opportunities of working with transitional justice, dealing with the past and reconciliation as part of peace processes.

  5. Ensure that EU support does not only target international efforts at setting global standards and mechanisms, but also take into account local needs and priorities for transitional justice, dealing with the past and reconciliation.

  6. Tackle head-on in policy, planning and practice the potential trade-offs inherent between global and local transitional justice needs and initiatives, and ensure they do not undermine but strengthen each other.

  7. Consider the possible future effects of judicial processes in conflict analysis, scenario planning and peace mediation interventions.

To find out more about these issues, click here.

mediatEUr's work on Peace and Justice forms part of the project 'Creating Improved Capacities for International Peace Mediation.' To find out more about this work, contact Canan Gündüz