The Challenges Facing Transitional Justice—and the Dangers of Ignoring It

The International Criminal Court in The Hague, Netherlands, Jan. 16, 2019 (AP photo by Peter Dejong).
The International Criminal Court in The Hague, Netherlands, Jan. 16, 2019 (AP photo by Peter Dejong).
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There are many templates for achieving transitional justice, the broader purpose of which is to help a society reckon with a legacy of human rights abuses in the aftermath of dictatorship or conflict. These efforts might take the form of a criminal trial, a truth commission or a reparations program, in an effort to document horrific violations—and reckon with them.

The specific goals of transitional justice have evolved over time. Early initiatives emphasized criminal justice, with the most well-known example being the post-World War II trials of German and Japanese war criminals. More recently, however, the purpose of transitional justice began to expand to focus on reconciliation, healing and societal reformation. In the post-apartheid era, South Africa’s Truth and Reconciliation Commission prized information and resolution over justice, for instance.

The threat of a transitional justice mechanism can also present a stumbling block to peace negotiations, though, particularly when people who might be held accountable by such processes are asked to help establish them. In South Sudan’s civil war, all sides have shied away from the creation of a hybrid court that would potentially be tasked with delivering justice to the victims of abuses committed by the government and rebel militias. Their reluctance to participate may ultimately lead them to sink that country’s peace process, which has recently made halting but fragile progress.

There is also the broader problem of sustaining these efforts in the face of the temptation to leave painful experiences in the past, as well as opposition from participants in past human rights abuses and their sympathizers—something that is now happening in Brazil with regard to that country’s Cold War-era dictatorship. All of these challenges are compounded by the lingering question of who will pay for transitional justice mechanisms that may require years to complete their work.

WPR has covered transitional justice around the world in detail and continues to examine key questions about future developments. Will the push for transitional justice in Latin America be undermined by the recent wave of right-wing election victories? Will highly touted initiatives in the Central African Republic and the Gambia actually move forward? Will the International Criminal Court survive? Below are some of the highlights of WPR’s coverage.

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The ICC and Its Discontents

Understanding that every country is not going to be in a position to reckon with human rights abuses—particularly when the people committing those abuses cling to power—the global community created the International Criminal Court. The ICC is designed to provide an alternative outlet for victims seeking justice, but also for securing reparations for the crimes committed against them. But the ICC is currently under fire from skeptics in Africa, who object to the court’s so-far exclusive focus on African defendants, as well as officials in the Trump administration who see it as a threat to U.S. sovereignty.

Africa’s Transitional Justice Challenge

A continent that has seen multiple conflicts has also been home to a variety of attempts to achieve transitional justice. The Central African Republic began a series of popular consultations in anticipation of establishing its transitional justice mechanism last year, and the Gambia has also stood up a Truth, Reconciliation and Reparations Commission, though there are concerns over whether institutions in both countries will have the mandate to effectively deliver justice to victims. Similar efforts on the continent have also been criticized for being toothless, including Liberia’s Truth and Reconciliation Commission. Organized to address the atrocities committed under Charles Taylor’s regime, most of its recommendations were ultimately ignored.

Halting Efforts in Latin America

Much of Latin America is still grappling with the atrocities that were committed by authoritarian regimes that dominated the continent from the 1960s until the 1980s. Efforts to deliver justice to the victims of those regimes have been mixed. And more recent initiatives, like a peace agreement in Colombia designed to bring a rebel group in from the cold and prompt a nationwide reconciliation, are also faltering.

Europe’s Politics of Forgetting

While transitional justice is often associated with the Global South, some of the earliest international mechanisms for the pursuit of accountability were launched in Europe. The ICC, for instance, borrowed features from the International Criminal Tribunal for the Former Yugoslavia. But countries in Europe, as elsewhere, have a checkered history when it comes to confronting the legacy of their past.

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Editor’s note: This article was originally published in July 2019 and is regularly updated.

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