Thinking Big About Transitional Justice
Impuls 09/2018 by Pablo de Greiff, Director of the Transitional Justice Program at the Center for Human Rights and Global Justice at the School of Law at New York University.
With its expertise on SSR, rule of law and development, Germany is in an ideal position to strengthen the transitional justice agenda. For its new strategy, the key will be to enable effective links between these fields and to help articulate an effective prevention framework.
There is no question that these are challenging times for human rights. On the one hand, there is an ambitious (although incomplete) human rights architecture already in place, constructed over a period of decades, which still frames widely shared expectations about how states relate to one another and about how they should relate to citizens. Arguably, this is a legal framework that has made a significant difference in practice to the lives of both individuals and communities. On the other hand, human rights are increasingly displaced by other kinds of considerations, more immediate, more local, and more self-regarding. Even those who were never naïve, who accepted that power would always be present in the relations between governments and between them and their citizens, cannot be blamed if they think that the best days for human rights are a thing of the past.
In such a period, it is particularly important to recall that human rights are not ‘merely’ a matter of legal obligation or external constraints on action. A positive account of human rights that recovers their problem-solving potential is now more important than ever.
The contributions of transitional justice
Transitional justice has an important role to play in this endeavor. It emerged, precisely, from the crucible of the effort to realize rights under less than auspicious circumstances; and in fact, it has significant results to show.
Over the last thirty years—a very short period of time as far as international normative change is concerned—transitional justice has contributed to the entrenchment of rights to justice, truth, and reparations, precisely by offering concrete and practical means for the operationalization of these rights. In the domain of justice, it has found ways of coping with amnesties often adopted by outgoing regimes to shield members from the consequences of their violations; it has contributed to the articulation of prosecutorial strategies to maximize the efficacy in the deployment of scarce investigatory and prosecutorial resources (more often than not in hostile environments); and it has invited experimentation with different venues where justice can be sought, from national to hybrid to international tribunals. Similarly, transitional justice has contributed to the entrenchment of the right to truth, operationalizing it via the measure most closely associated with it, the truth commission, but also through other means such as commissions of inquiry, the organization and preservation of archives and other documentation efforts, as well as through carefully designed memorialization initiatives. Finally, transitional justice has contributed to the entrenchment of the right to reparation through the creation of massive administrative reparations programs that have served tens of thousands of victims in different countries, and through the wise use of ‘complex’ bundles of benefits that satisfy a more diverse set of needs than one form of reparation alone.
Quite aside from the compelling (and sufficient) moral and legal reasons to redress victims, in discussing the contributions of transitional justice to crisis prevention and peacebuilding, it is important to keep in mind two things. First, although redress is the immediate goal of transitional justice, its effects, when successful, are broader and include providing recognition to victims, fostering civic trust, strengthening the rule of law, and promoting social integration or reconciliation. Second, there is, conversely, plenty of evidence that unredressed human rights violations increase the risks of violence and conflict. In addition to unpacking the notion of redress so as to include not only criminal justice but also truth and reparations, transitional justice always included the promise ‘Never again,’ calling for measures that go well beyond the redress of individual violations. ‘Guarantees of non-recurrence’ encompass a huge range of initiatives, from establishing ‘gateway’ rights such as legal identity, to complex institutions such as constitutional courts. In between, there are effective preventive initiatives involving changes in policing strategies, anti-torture mechanisms, limiting the jurisdiction of military courts, strengthening civilian oversight over security and intelligence services, and the vetting of personnel in the security sector and sometimes the judiciary.
The challenges of transitional justice
Now, of course, transitional justice is no magic bullet. It neither resolves everything, nor is its success unconditionally guaranteed. For instance, as other rights- and justice-related initiatives, it currently faces three ‘external’ challenges: it is harder to advocate for the implementation of transitional justice measures given the selectivity in the implementation of human rights internationally; there is a tendency to ‘securitize’ all sorts of issues; and civic spaces are progressively closing.
It also faces some challenges that are ‘internal’ to the field, that stem from the way it is practiced. Amongst them are:
- ‘Mission creep’: mandates of transitional justice measures have expanded without any sort of functional analysis to suggest that the measures can indeed perform the ever-growing functions attributed to them.
- Indifference to context, exemplified by the elision of the difference between post-authoritarian and post-conflict transitions. Both contexts receive the same set of recommendations from practitioners.
- ‘Templatization’: the tendency to think that there is a template, a blue-print of institutional forms that produces the same results everywhere.
- Overreliance on technocratic, institutional measures at the expense of cultural and individual interventions, as if increasing social integration in the wake of atrocities was simply a matter of clever institutional engineering.
- Lack of coordination with adjacent policies such as security and development with which transitional justice coexists and overlaps but does not interact as much as it should—not just to its own detriment but of the other fields as well.
Connecting transitional justice with SSR and rule of law
There is absolutely no question that Germany is in a privileged position to make crucial contributions to the strengthening of the transitional justice agenda as a crisis prevention and peace building tool. Quite aside from the resource horizon, there is no question that Germany’s own experiences and its willingness to take ownership of its past positively changes the discussion dynamics with countries that are reluctant to start working on their own pasts.
Beyond these (not irrelevant albeit general) considerations, Germany’s recognized expertise on security sector reform, rule of law reform, and various dimensions of development, place it in an ideal position to address some of the outlined challenges, and therefore, to increase the potential of transitional justice practice in general. It would already make some difference to incorporate the concerns (as well as some resources) of transitional justice into German assistance on SSR and rule of law reform: Neither of the two reforms is likely to achieve its goals comprehensively if the respective sectors are staffed by people with dubious human rights records, and if there is no reform of the systems, oversight mechanisms, and even organizational culture of entities that either participated in, enabled, or failed to prevent gross human rights violations. Similarly, and by way of showing that the links between SSR, rule of law reform and transitional justice move in both directions, successful transitional justice initiatives in some contexts need antecedent or simultaneous SSR and rule of law reform, for the implementation of transitional justice calls for minimum levels of security and trustworthy institutions. Given Germany’s expertise in and support of the three varieties of initiatives, it is in a good position to insist on the establishment of significant links between them.
Effective prevention work needs to go beyond crisis prevention
Similarly, Germany is in a privileged position to help make the prevention dimension of transitional justice work more systematically than it has up to this point. In several previous reports on the issue, I advocated for the articulation of a ‘framework approach’ to prevention. It would give meaning to the consensus that has been notionally arrived at in discussions about the topic, namely, the importance of broadening and ‘upstreaming’ prevention work. This consensus has not yet been translated into clear policies, but the moment for making serious investments on this issue could not be better. Among other things, it would contribute to a more positive narrative about human rights on which the future of the discourse and practice may depend. The articulation of a broad framework for truly effective prevention work requires to go beyond crisis prevention. It requires integrating not only the contributions of state institutions but also of civil society. In order for it to lead not only to structural reforms but also to changes in cultures and attitudes would require coordinated efforts across a spectrum of stakeholders and disciplines. Given that discussions about prevention at the UN seem to have lost their steam, Germany, in partnership with others, could pick up this banner and move the agenda forward. The development of the government’s transitional justice strategy provides an occasion and could become a building block of that more ambitious project, not the least through the crafting of a strategy that is open to the links between transitional justice and other areas of policy intervention.