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Current Issues and Future Challenges in Transitional Justice

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Current Issues in Transitional Justice

Part of the book series: Springer Series in Transitional Justice ((SSTJ,volume 4))

Abstract

This chapter reflects upon the current status and the potential for the field of transitional justice, its theoretical aspects and practical application, to respond to the new and emerging challenges and threats of global significance. We propose a new understanding and approach to transitional justice, which is more responsive to the different types of transitions and conflicts by prescribing varied forms of justice through the different processes and mechanisms, formal and customary. Despite recognising the dangers and disadvantages of over-expanding the field, in order to accommodate the changing needs and experiences of the notion of transitional justice globally there is a necessity to open up new dimensions for exponential development of the field. We conclude with an observation that the notion and concept of transitional justice will continue to change and evolve as the needs of global society for achieving justice develop along new lines of conflicts and future global challenges.

Absolute justice between individuals is frequently unattainable. Finding absolute justice between groups is exponentially more difficult. Normally the best hope to attain justice is one that is practical, not perfect or absolute.

Bunsou Sour, “The Search for Peace of Mind in Cambodia”, Searching for the Truth, EDITORIAL, Special English Edition

(Fourth Quarter 2003: 1).

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Notes

  1. 1.

    See for example, Mary Albon, “Project in Justice in Times of Transitions: Report of the Project’s Inaugural Meeting”. In Transitional Justice: How Emerging Democracies Reckon with Former Regimes, Vol I: General Consideration, ed. Neil Kritz (United States Institute of Peace Press, 1995), 42–54.

  2. 2.

    Ruti G. Teitel, “Transitional Justice Genealogy”, Harvard Human Rights Journal, 16 (2003): 69–94.

  3. 3.

    Ruti G. Teitel, Transitional Justice (OUP, 2000), 5.

  4. 4.

    Ruti G. Teitel, “Editorial Note – Transitional Justice Globalised”, The International Journal of Transitional Justice 0 (2008): 1–4.

  5. 5.

    Fionnuala N. Aolain and Colm Campbell, “The Paradox of Transition in Conflicted Democracies”, Human Rights Quarterly, 27 (2005): 172–213, 212.

  6. 6.

    See, for example, the debate taking place for some time now and presented in the International Journal of Transitional Justice.

  7. 7.

    See for example Patricia Lundy and Mark McGovern, “The Role of Community in Participatory Transitional Justice”, Human Rights Law in Perspective (Vol. 14): Transitional Justice from Below, Grassroots Activism and the Struggle for Change ed. Kieran McEvoy and Lorna McGregor, 99–120. (Hart Publishing, 2008); Rosemary Nagy, “Transitional Justice as Global Project: Critical Reflections”, Third World Quarterly 29, No. 2 (2008): 275–289.

  8. 8.

    See for example concerns raised by Christine Bell, “Transitional Justice, Interdisciplinary and the State of the ‘Field’ or ‘Non-Field’”, International Journal of Transitional Justice 3, No. 1 (2009); on the risk of broadening the use of the concept for areas that it was not initially developed for and the same undermining its analytical utility for academia and practice, see Thomas Obel Hansen, “The Horizontal and Vertical Expansion of Transitional Justice: Explanations and Implications for a Contested Field”, in Transitional Justice Theories, ed. in Susanne Buckley-Zistel et al. (Routledge, 2013); Jens Iverson, “Transitional Justice, Jus Post Bellum and International Criminal Law: Differentiating the Usages, History and Dynamics”, International Journal of Transitional Justice 7, No. 3 (Sept 2013): 413–433.

  9. 9.

    It is beyond the scope of this chapter to provide a full overview of this continuous debate but it is suffice to say that it has been one of the most profound, and oldest, quests relating to different aspects of ending conflicts and achieving peace, and within the just war tradition (the just post bellum phase) St. Augustine would link peace after a war to the justice of fighting a war [Concerning the City of God against the Pagans, trans. Henry Bettenson (New York: Penguin, 1984)], so did Hugo Grotius [De Jure Belli Ac Pacis, trans. Francis W. Kelsey (Oxford: Clarendon Press, 1925)], and so would Immanuel Kant [The Philosophy of Law: An Exposition of the Fundamental Principles of Jurisprudence as the Science of Right, originally published 1887, trans. William Hastie, Union, (New Jersey: The Lawbook Exchange, 2002)].

  10. 10.

    For a discussion on the link between transitional justice and liberal values see, for example, Toumas Forsberg, “The Philosophy and Practice of Dealing with the Past: Some Conceptual and Normative Issues”. In Burying the Past: Making Peace and Doing Justice after Civil Conflict, ed. Nigel Biggar (Washington: Georgetown University Press, 2001).

  11. 11.

    Adopted from Peter Rush, “After Atrocity: Foreword to Transition”, In The Arts of Transitional Justice: Culture, Activism, and Memory After Atrocity, ed. Peter Rush and Olivera Simić (Springer, 2013).

  12. 12.

    See for example, Guidance Note of the Secretary-General, United Nations Approach To Transitional Justice, March 2010. http://www.unrol.org/files/TJ_Guidance_Note_March_2010FINAL.pdf

  13. 13.

    Alexander Dukalskis, “Interactions in Transition: How Truth Commissions and Trials Complement or Constrain Each Other”, International Studies Review 13, No. 3 (2011).

  14. 14.

    Available at: http://www.tjdbproject.com/#

  15. 15.

    Tricia D. Olsen, Leigh A. Payne and Andrew G. Reiter, “The Justice Balance: When Transitional Justice Improves Human Rights and Democracy”, Human Rights Quarterly 32, No. 4 (2010); see also Tricia D. Olsen, Leigh A. Payne, Andrew G. Reiter and Eric Wiebelhaus-Brahm, “When Truth Commissions Improve Human Rights”, International Journal of Transitional Justice 4, No. 3 (2010).

  16. 16.

    See for example research conducted by Human Rights Watch highlighting the dangers of reinforcing a culture of impunity, which might in certain circumstances have a detrimental effect on resolving a conflict, Selling Justice Short: Why Accountability Matters for Peace (New York: Human Rights Watch, 2009); see also the arguments by Max Pensky, on the role of international law, especially pertaining to the role of the ICC, in broadening the notion of justice beyond that of punishment and retribution presented in “Amnesty on Trial: Impunity, Accountability and the Norms of International Law”, Ethics and Global Politics 1, No. 1–2 (2008).

  17. 17.

    Jack Snyder and Leslie Vinjamuri, “Trials and Errors: Principle and Pragmatism in Strategies of International Justice”, International Security 28, No. 3 (2003).

  18. 18.

    Ibid.

  19. 19.

    Chapter 2 of this volume.

  20. 20.

    Transitional Justice Institute, The Belfast Guidelines on Amnesty and Accountability, October 25, 2013, especially Guideline 5: “Linking Amnesty and Accountability”. http://www.transitionaljustice. ulster.ac.uk/AmnestyGuidelinesLaunch.htm

  21. 21.

    Chapter 1 of this volume, XX.

  22. 22.

    cf. Martti Koskenniemi, “Between Impunity and Show Trials”, in Max Planck Yearbook of United Nations Law, eds. Jochen A. Frowein and Rüdiger Wolfrum. Vol. 6, (2002), providing arguments challenging the psychological and empirical evidence supporting the positive effects of truth-telling.

  23. 23.

    On how human rights discourse and movement has created its own meta-narrative and is exercised globally, see David Kennedy, The Dark Side of Virtue: Reassessing International Humanitarianism, (Princeton, N.J.: Princeton University Press, 2004).

  24. 24.

    Michel Foucault, “Truth and Power”, in Power/Knowledge: Selected Interviews and Other writings 1972–1977, ed. Colin Gordon (Essex: Harvester Press, 1980), 131.

  25. 25.

    Chapter 3 of this volume.

  26. 26.

    See for example the Office of the Special Representative of the Secretary-General (SRSG) for Children and Armed Conflict, “Working Paper Number 3: Children and Justice During and in the Aftermath of Armed Conflict”, (September 2011); Radhika Coomaraswamy, “The Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict - Towards Universal Ratification”, The International Journal of Children’s Rights 18 (2010).

  27. 27.

    Andrew Mawson, “Children, Impunity and Justice: Some Dilemmas from Northern Uganda”, in Youth and Armed Conflict on the Front Line, ed. Jo Boyden (Studies in Forced Migration, 2004), 136.

  28. 28.

    In the context of child soldiers see Michael Wessells, Child Soldiers: From Violence to Protection (Cambridge: Harvard University Press, 2006).

  29. 29.

    On a relative thought see Sarah Maddison and Laura J. Shepherd, “Peacebuilding and the Postcolonial Politics of Transitional Justice”, Peacebuilding (2014); Jennifer Balint and Julie Evans, “Transitional Justice and Settler States” (paper presented at ANZCCC: The Australian and New Zealand Critical Criminology Conference 2010, Institute of Criminology, Sydney Law School, The University of Sydney).

  30. 30.

    Chapter 4 of this volume.

  31. 31.

    Jennifer Balint, Julie Evans and Nesam McMillan, “Rethinking Transitional Justice, Redressing Indigenous Harm: A New Conceptual Approach”, International Journal of Transitional Justice 8, No. 2 (2014).

  32. 32.

    In relation to traditional justice systems in Africa see for example: Luc Huyse, “Introduction: Tradition-based Approaches in Peacemaking, Transitional Justice and Reconciliation Policies”, in Traditional Justice and Reconciliation after Violent Conflict: Learning from African Experiences, eds. Luc Huyse and Mark Salter (International IDEA: Stockholm, 2008).

  33. 33.

    See for example the ethnographic study deserving particular attention by Phil Clark, The Gacaca Courts, Post-Genocide Justice and Reconciliation in Rwanda: Justice without Lawyers (Cambridge: Cambridge University Press, 2010).

  34. 34.

    For some criticisms in relation to the use of gacacas in the Rwandan context see Bert Ingelaere, “‘Does the Truth Pass Across the Fire Without Burning?’ Locating the Short Circuit in Rwanda’s Gacaca Courts”, Journal of Modern African Studies 47, No. 4 (2009).

  35. 35.

    Voices remain divided as to the role and impact of non-formal and traditional (or Indigenous) justice processes in the context of post-conflict situations, with some recognising the benefits of these for ensuring that the local context is taken into account, with others highlighting the risk of them sustaining power inequalities, or being crippled by corruption, a lack of oversight and political top-down approaches. Just to cite a few voices in the debate: for an overview of traditional justice processes see Tim Allen and Anna MacDonald, “Post-Conflict Traditional Justice: A Critical Overview” in The Justice and Security Research Programme (London: London School of Economics and Political Science (LSE), 2013); on the relative success of “indigenous justice tradition” in the context of Eritrea see Daniel Mekonnen, “Indigenous Legal Tradition as a Supplement to African Transitional Justice Initiatives”, African Journal on Conflict Resolution 10, No. 3 (2010); on the importance of traditional leaders and customary law in justice processes in Timor-Lest see Piers Pigou, “Crying without Tears. In Pursuit of Justice and Reconciliation in Timor-Leste: Community Perspectives and Expectations”, The International Centre for Transitional Justice Report (August 2003); cf. discussion on gacaca courts and their legacy see Human Rights Watch Report, Justice Compromised: The Legacy of Rwanda’s Community-Based Gacaca Courts (New York: Human Rights Watch, 2011) http://www.hrw.org/reports/2011/05/31/justice-compromised-0; and also Penal Reform International, “‘On Gacaca’, Report IV: January 2003”, (PRI, 2003), with other PRI gacaca monitoring reports available at: www.penalreform.org

  36. 36.

    Peter Rush and Oliver Simić ed., The Arts of Transitional Justice: Culture, Activism, and Memory After Atrocity (Springer, 2013).

  37. 37.

    Ibid., vii.

  38. 38.

    Referring predominantly to women and men of Vanuatu, Solomon Islands, New Caledonia, Fiji, Samoa and Papua New Guinea.

  39. 39.

    See, for example, Brandon Hamber, Liz Ševcenko and Ereshnee Naidu, “Utopian Dreams or Practical Possibilities? The Challenges of Evaluating the Impact of Memorialisation in Societies in Transition”, International Journal of Transitional Justice 4, No. 3 (2010).

  40. 40.

    See also Olivera Simić and Katy Daly, “‘One Pair of Shoes, One Life’: Steps towards Accountability for Genocide in Srebrenica”, International Journal of Transitional Justice, Special Issue: Civil Society, Social Movements and Transitional Justice, Vol. 5 Issue 3 (2011).

  41. 41.

    In relation to the Ardoyne Commemoration Project in Northern Ireland, see Patricia Lundy and Mark McGovern, “Whose Justice? Rethinking Transitional Justice from the Bottom Up”, Journal of Law and Society 35, No. 2 (2008).

  42. 42.

    Chapter 6 of this volume.

  43. 43.

    On the role of civil society in transitional justice from a development perspective see Roger Duthie, Building Trust and Capacity: Civil Society and Transitional Justice from a Development Perspective, (International Centre for Transitional Justice, November 2009); also Lavor Rangelov, “The Role of Transnational Civil Society” in Responding to Genocide: The Politics of International Action, eds. Adam Lupel and Ernesto Verdeja (Boulder and London: Lynne Rienner Publishers, 2013).

  44. 44.

    Chapter 7 of this volume.

  45. 45.

    See for example Lucy Hovil and Moses Chrispus Okello, “Editorial Note, Special Issue: Civil Society, Social Movements and Transitional Justice”, International Journal of Transitional Justice 5, No. 3 (2011).

  46. 46.

    See for example the address by the former UN High Commissioner for Human Rights on the importance of addressing the full spectrum of rights in order to create conditions to avoid further violations in the future, Louise Arbour, “Economic and Social Justice for Societies in Transition”, (Annual Lecture of Transitional Justice, New York University School of Law, October 25, 2006).

  47. 47.

    Chapter 9 of this volume.

  48. 48.

    Ibid.

  49. 49.

    See also the study by Lisa J. Laplante, examining the socio-economic causes of conflicts in an attempt to address poverty and structural inequality leading to violence, “Transitional Justice and Peace Building: Diagnosing and Addressing the Socioeconomic Roots of Violence through a Human Rights Framework”, International Journal of Transitional Justice 2, No. 3 (2008).

  50. 50.

    Roger Duthie, “Toward a Development-sensitive Approach to Transitional Justice”, International Journal of Transitional Justice 2 (2008).

  51. 51.

    See also Mirjam van Reisen and Daniel R Mekonnen, “Exploring New Spaces for Women in Transitional Justice in Eritrea and Zimbabwe”, (Paper presented at the 2nd International Symposium of the International Research Centre for Intercultural Studies: “Diversity, Gender and Discrimination in Spaces”, February 16–18, 2011, Brussels, Belgium).

  52. 52.

    See for example Pablo de Greiff, “Articulating the Links Between Transitional Justice and Development: Justice and Social Integration”, in Transitional Justice and Development: Making Connections, ed. Pablo de Greiff and Roger Duthie (New York: Social Science Research Council, 2009).

  53. 53.

    Jane Alexander, A Scoping Study of Transitional Justice and Poverty Reduction (Final Report for DFID, 2003).

  54. 54.

    Susanne Buckley-Zistel and Ruth Stanley, “Introduction” in Gender in Transitional Justice, ed. Susanne Buckley-Zistel and Ruth Stanley (Basingstoke: Palgrave Macmillan, 2011), 2.

  55. 55.

    See for example Christine Bell and Catherine O’Rourke, “Does Feminism Need a Theory of Transitional Justice? An Introductory Essay”, International Journal of Transitional Justice 1, No. 1 (2007).

  56. 56.

    See for example the discussions and findings of the 12th Alliance Against Trafficking in Persons Conference, “An Agenda for Prevention of Human Trafficking: Non-discrimination and Empowerment”, (Vienna, October 11–12, 2012) www.osce.org/event/alliance12.

  57. 57.

    See, for example, Roger Duthie, ed., Transitional Justice and Displacement, (New York: Social Science Research Council, 2012).

  58. 58.

    More available at: http://www.un.org/millenniumgoals/beyond2015.shtml

  59. 59.

    More available at: http://www.uncsd2012.org

  60. 60.

    Joy Hyvarinen, “Climate Change and Global Justice: Lessons from Transitional Justice?” (Speech at the Berlin International Economics Congress, Berlin, March 6–10, 2013), 2. www.field.org.uk/resources

  61. 61.

    Ibid.

  62. 62.

    See the Additional Protocol I to Geneva Conventions (1977) where Art 35(3) offers protection to the environment against environmental warfare as such, while Art 55(1) stipulates that extra “care shall be taken in warfare to protect the natural environment”. Protection under the rules of Customary IHL may also apply, see Rules 43–45, Customary IHL Database at http://www.icrc.org/customary-ihl/eng/docs/home; also Art 8(2)(b)(iv) of the Rome Statute of the International Criminal Court (1998) makes it a war crime to cause widespread, long-term and severe damage to the environment in violation of the principle of proportionality.

  63. 63.

    Solomon M. Hsiang, Kyle C. Meng and Mark A. Cane, “Civil Conflicts are Associated with the Global Climate”, Nature 476 (25 August 2011): 438–441.

  64. 64.

    Some previous studies include Marshall B. Burke, Edward Miguel, Shanker Satyanath, John A. Dykema and David B. Lobell, “Warming Increases the Risk of Civil War in Africa”, in Proceedings of the National Academy of Sciences, USA 106 (2009), concentrating on sub-Sahara Africa.

  65. 65.

    See, for example, the Intergovernmental Panel on Climate Change (IPCC), Climate Change, the IPCC Impact Assessment (reported by the Working Group II, 1990), https://www.ipcc.ch/ipccreports/ sres/regional/index.php?idp=330; see also the Working Group II Report on Climate Change 2014: Impacts, Adaptation, and Vulnerability, http://ipcc-wg2.gov/AR5/report/; Richard Ally, “Summary for Policymakers” in Climate Change 2007: The Physical Science Basis, Contribution of the Working Group I to the Forth Assessment Report of the IPCCC, ed. S. Solomon et al. (Cambridge: Cambridge University Press, 2007), 2–16.

  66. 66.

    For the first time explicitly recognised in the Stockholm Declaration (1972) on non-binding basis, which then contributed to the development of international and national law in that respect, see for example the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (“the Protocol of San Salvador”), Art 11 (Right to a Healthy Environment).

  67. 67.

    See for example the UNGA Resolution 64/292 on the human right to water and sanitation, A/Res/64/292 United Nations General Assembly (28 July 2010).

  68. 68.

    As reportedly stated by the UN Secretary-General Ban Ki-moon while opening the World Water Day, Environmental News Service, March 22, 2010; see also United Nations Development Programme (UNDP), Human Development Report 2006, Beyond Scarcity: Power, Poverty and the Global Water Crisis, (2006).

  69. 69.

    See for example Mara Tigninio, “Water, International Peace, and Security”, International Review of the Red Cross, 92 (2010): 647–674.

  70. 70.

    More available at http://www.budapestwatersummit.hu

  71. 71.

    Chapter 12 of this volume.

  72. 72.

    Chapter 12 of this volume.

  73. 73.

    Referring to the emergence of accepted new rules and doctrines of customary international law at an unknown and unusual pace; see for example Michael P. Scharf, “Seizing the ‘Grotian Moment’: Accelerated Formation of Customary International Law in Times of Fundamental Change”, Cornell International Law Journal 43 (2010): 439.

  74. 74.

    For an overview of Nigerian and US litigation against corporations for the effects of oil spills on human health see Lauren McCaskill, “When Oil Attacks: Litigation Options for Nigerian Plaintiffs in U.S. Federal Courts”, Health Matrix: Journal of Law-Medicine 22, No. 2 (2012): 535–570.

  75. 75.

    The term refers to “the extensive damage to, destruction of or loss of ecosystem(s) of a given territory, whether by human agency or by other causes, to such an extent that peaceful enjoyment by the inhabitants of that territory has been or will be severely diminished”, as a proposed amendment the Rome Statute of the International Criminal Court (1998), submitted to the United Nations in March 2010; see Polly Higgins, Eradicating Ecocide: Laws and Governance to Stop the Destruction of the Planet (Shepheard-Walwyn Publishers Ltd, 2010); more information available at: http://eradicatingecocide.com

  76. 76.

    Ibid.

  77. 77.

    See Thomas Berry, The Great Work: Our Way into the Future (New York: Bell Tower/Random House, 1999).

  78. 78.

    See Cormac Cullinan, Wild Law: A Manifesto for Earth Justice (Green Books, 2003); Peter Burdon ed., Exploring Wild Law: The Philosophy of Earth Jurisprudence (Wakefield Press, 2011).

  79. 79.

    Mike Bell, “Thomas Berry and an Earth Jurisprudence: An Exploratory Essay”, The Trumpeter: Journal of Ecosophy 19, No. 1 (2003): 69.

  80. 80.

    See, for example, Pablo de Greiff ed., The Handbook of Reparations (Oxford: Oxford University Press, 2006).

  81. 81.

    Rosemary Nagy, “Transitional Justice as Global Project: Critical Reflections”, Third World Quarterly 29, No. 2 (2008), 276.

  82. 82.

    Jens Iverson, “Transitional Justice, Jus Post Bellum and International Criminal Law: Differentiating the Usages, History and Dynamics”, International Journal of Transitional Justice 7, No. 3 (2013): 413–433.

  83. 83.

    Diane Orentlicher, “‘Settling Accounts’ Revisited: Reconciling Global Norms with Local Agency”, International Journal of Transitional Justice 10 (2001): 18.

  84. 84.

    See also Laurel Fletcher, Harvey Weinstein and Jamie Rowen, “Context, Timing and the Dynamics of Transitional Justice: A Historical Perspective”, Human Rights Quarterly 31, No. 1 (2009).

  85. 85.

    For example, on the different impact on women and men of institutional reforms in the context of security see OECD-Development Assistance Committee, OECD DAC Handbook on Security System Reform – Integrating Gender Awareness and Equality (Paris: OECD, 2009).

Acknowledgement

We would like to thank the contributing authors to this edited volume for their stimulating contributions and for engaging with us on the matters of “justice” and “transition”, as well as the anonymous reviewers for their helpful and constructive comments, which helped us in refining our arguments presented in this chapter.

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Authors and Affiliations

  1. School of Law and Justice, Southern Cross University, Southern Cross Drive, Bilinga, QLD, 4225, Australia

    Natalia Szablewska

  2. Executive Business Centre, Bournemouth University, 89 Holdenhurst Rd, Bournemouth, Dorset, BH8 8EB, UK

    Sascha-Dominik Bachmann

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Correspondence to Natalia Szablewska .

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Editors and Affiliations

  1. Southern Cross University School of Law and Justice, Gold Coast, Queensland, Australia

    Natalia Szablewska

  2. University of Lincoln Law School, Lincoln, United Kingdom

    Sascha-Dominik Bachmann

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Szablewska, N., Bachmann, SD. (2015). Current Issues and Future Challenges in Transitional Justice. In: Szablewska, N., Bachmann, SD. (eds) Current Issues in Transitional Justice. Springer Series in Transitional Justice, vol 4. Springer, Cham. https://doi.org/10.1007/978-3-319-09390-1_14

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