Transitional [Justice] cycle21.10.2019
My points of criticism come from the field in which I myself am a practitioner, namely peacebuilding in the Balkans. I work with war veterans, a group of people that is rather influential in creating public opinion on issues of the past, and also with other groups with multiplication potential such as journalists, teachers and activists in mixed cross-border groups of (former) enemies.
The concept of transitional justice is usually used to address legacies of mass violence and injustice committed by state institutions. It is applied as a formula to repair what was done wrong and restore the situation to what it is supposed to be, using, in essence, legal mechanisms as a form of retributive justice. Despite the fact that the concept of transitional justice has widened (“evolved”), proof of its shortcomings has arisen through practice. In the Balkans, it was the original TJ concept that was implemented, relying solely on retributive justice mechanisms, in this case the International Criminal Tribunal and national war crimes proceedings.
Retributive justice actions are incompatible with restorative justice
It is clear to me from my own context that retributive justice actions are incompatible with some forms of restorative justice. Obvious examples of this incompatibility are the International Criminal Tribunal and local truth commissions, which grant amnesty for perpetrators who provide complete testimonies. In the case of the Balkans, wide national rejection of verdicts in some important cases has cast a permanent shadow and harmed the credibility of the Tribunal. Furthermore, it has been recognised that the now completed work of the International Tribunal (which initially listed reconciliation as one of its goals, later removed from its website) and the ongoing work of national courts have not improved the situation, which is characterised by hatred, discrimination, dominance of nationalistic narratives, fear and enmity as legacies of war. This realisation has led to new ideas of creating a regional post-Tribunal commission that builds on the Tribunal’s fact-finding achievements but uses truth-telling as a restorative justice mechanism. However, 13 years since the idea was launched, the cold-war atmosphere and contested verdicts of the Tribunal have rendered these attempts void. Twenty-four years after the end of the Bosnian and Croatian wars and twenty years after the end of the Kosovo war, we live in an atmosphere of ceasefire, not peace.
Justice cannot repair damages
Usually the advocates of transitional justice make no distinction between justice as the term for the outcome of a legal process and the rather subjective sense of justice that victims or their families as recipients of justice have, or the social perception of what is a just outcome after the injustices committed. Much of the international and national justice delivered through criminal proceedings is perceived by the public to be unjust. This is not only due to flaws in the legal mechanisms; it is also because the concept of TJ suggests that justice can be served even in cases when no just outcome can exist. A “just outcome” would repair damage that is irreversible and irreparable, but this fact is not recognised. The assumption that repairing is possible by creating a just outcome, through legal procedure or otherwise, is illusory and misleading.
How do you repair a loss of life? How do you repair a loss caused by years of suffering and/or discrimination? My answer to this is that the damage done is beyond repair; we cannot compensate for or repair a loss of life, a loss of future. What we can do is to contribute to acknowledgement by symbolic acts such as material giving (“compensation”) or support for surviving relatives, and respond to the need for victims’ lives to be publicly acknowledged as loss and the grief to be given public spaces – an attempt to provide “meaning” for their victimisation.
Despite the obvious urge to “repair”, defining the unrepairable appears useful in terms of defining the tasks ahead.
Justice does not bring people to accept the truth
However, when we look at the ultimate goal: that wounds are healed and that it does not happen again, I see no evidence that these goals can be reached through TJ mechanisms. Even the most purposeful goal that judicial proceedings can achieve: to “tell the truth”, determine undeniable facts that are widely accepted by society, has not been achieved within the Balkan context. Despite high-quality work in gathering evidence, the Tribunal failed to be recognised as credible in countries that were meant to benefit from its work. There are many complex circumstances and reasons for this, which go beyond the scope of this article. Under real-life conditions, many questions arise and reveal the shortcomings of TJ mechanisms:
- What happens when perpetrators are dead? Truth, justice, punishment, repair? Nothing.
- What happens when there is no evidence leading to particular perpetrators? Nothing.
- What happens when the victims were ordinary soldiers who died in combat? Are they to be considered victims, since the law does not recognise them as such? Is their loss of life a tragedy to their friends and family which requires healing, and how exactly does TJ address this issue?
Justice does not hinder people from engaging in wars and/or committing war crimes
If we are aware that war crimes have been illegal and have been the subject of legal prosecution for decades already yet they keep on being repeated, why do we assume that legal prosecution is a barrier to repetition?
Is there anything other than threat of repercussions keeping people from killing one another? If we can think of other reasons not to kill, shouldn’t we rather develop strategies to strengthen these reasons?
Why do people stick to a concept that does not deliver what it’s meant to deliver?
It is misleading to rely upon a concept that is rooted in legal practices to build peace or achieve reconciliation since peacebuilding and social reconciliation are much wider and much more complex issues than any legal frame could embrace. It would be helpful to recognise TJ’s limits and merits and to research the field of interaction and impact that TJ mechanisms, or their absence, have on peacebuilding and/or peace degrading.
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Transitional Justice is a professionalised and internationally accepted policy field. But do its implicit and explicit foundations still hold good? Which of its underlying assumptions, patterns of thinking or practices should be critically reviewed?