Justice

 

Transitional justice (part 2)

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Reparations, vetting and amnesty

Reparations

Reparations refer to various measures that aim to redress past wrongs and provide compensation, rehabilitation and satisfaction for victims.  These measures can be provision of goods or services or the granting of legal rights, such as citizenship and nationality.  Reparations also include symbolic measures such as disclosure of truth, public apologies, memorials and monuments, and commemoration of victims.  Reparations can be judicial or non-judicial and can be allocated individually or collectively.

OHCHR, 2008, ‘Rule-of-Law Tools for Post-Conflict States: Reparations Programmes’, Office of the United Nations High Commissioner for Human Rights, New York and Geneva
How can effective reparations programmes be conducted? What role should the international community play? This publication, by the Office of the United Nations High Commissioner for Human Rights (OHCHR), offers a practical guide for reparations programmes. It is important to clarify legal obligations and the moral reasons for reparations, to address the political concerns and to be aware of cultural issues. International actors should rethink their reluctance to provide financial support to reparations efforts.
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The following handbook provides a broad overview of reparations and a series of detailed thematic and country case studies.

Grieff, P. de, 2006, ‘The Handbook of Reparations’, Oxford University Press, Oxford Scholarship Online
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Vetting

Vetting is a process whereby individuals who lack integrity and who are considered a threat to the state are excluded or removed from public office and can form part of transitional justice strategies.  Vetting is particularly rigorous in the security and justice sectors – as reforms of these sectors contribute to criminal accountability for past abuses and the prevention of future violations.

OHCHR, 2006, ‘Rule-of-Law Tools for Post-Conflict States: Vetting - An Operational Framework’, Office of the United Nations High Commissioner for Human Rights, New York and Geneva
Reforming public institutions is a core task in countries in transition from authoritarianism or conflict to democracy and peace. This United Nations High Commissioner for Human Rights (OHCHR) publication sets out an operational framework for vetting and institutional reform.  The complex challenges of transitional contexts require a comprehensive approach to institutional reform. An effective and legitimate reform strategy will situate vetting in its broader context.
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DCAF, 2006, Vetting and the Security Sector’, DCAF Backgrounder, Geneva Centre for the Democratic Control of Armed Forces, Geneva
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Amnesty

Granting amnesty for perpetrators of human rights abuses has been justified on the grounds of promoting societal reconciliation.  It may be a tactical decision where former human rights abusers retain considerable power in relation to the new regime.  However, others argue that it creates impunity, encouraging the continuation of human rights violations.  The advantages and risks associated with amnesty are discussed in section 4.7 of Jane Alexander’s scoping paper on the previous page.

The following article argues for a pragmatic approach to transitional justice, which does not presume that trials are the best way to prevent atrocities.  Instead, it highlights the value of amnesties as a bargaining tool to negotiate peace.

Snyder, J. and Vinjamuri, L., 2003, ‘Trials and Errors: Principle and Pragmatism in Strategies of International Justice’, International Security, vol. 28, no. 3, pp. 5-44
How effective in preventing human rights abuses are tribunals for the perpetrators of atrocities? This article from International Security reviews recent post-conflict experiences and finds little evidence that trials successfully deter future violence. Prosecution according to universal standards risks causing more atrocities than it would prevent, because it pays insufficient attention to political realities. More pragmatic approaches based on political negotiation, selective amnesties and long-term institutional strengthening have a better chance of reducing tension and consolidating peaceful democracies.
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The following articles examine the evolution of the anti-amnesty / anti-impunity norm and consider the debates concerning ‘peace versus justice’ (or ‘amnesty versus trials’ as it is often framed) arguing that greater attention should be paid to broader notions of accountability.

Pensky, M., 2008, ‘Amnesty on Trial: Impunity, Accountability and the Norms of International Law’, Ethics and Global Politics, vol. 1, no. 1-2, pp. 1-40
International criminal law is at a crossroads; how can it reconcile its desire to punish crimes against humanity with the use of domestic amnesties for achieving peace? This article from Ethics and Politics argues that the International Criminal Court's attitude toward domestic legal amnesties for international crimes will determine the extent to which international law embraces its role in embodying the ideals of democratic accountability and human rights. If international law does not distinguish itself by broadening its definition of justice beyond mere retribution and punishment, it risks losing the relevance and prominence it has fought so hard to achieve.
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Human Rights Watch, 2009, 'Selling Justice Short: Why Accountability Matters for Peace', Human Rights Watch, New York
Sacrificing justice in the hope of securing peace is often projected as a more realistic route to ending conflict and bringing about stability than holding perpetrators to account. Yet this report draws on Human Rights Watch research to argue that the impact of justice is too often undervalued when weighing objectives in resolving a conflict. While there is no one formula suitable to all situations, a decision to ignore atrocities and to reinforce a culture of impunity may carry a high price.
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Non-state justice and security systems

There is debate about the use of traditional and other non-state or informal systems in transitional or post-conflict situations.  They are considered to be beneficial in that they allow for local contexts to be incorporated into the justice system; they facilitate ownership and participation; they are familiar to local populations; and they can be quick and convenient.  Such systems can be problematic, however, as they are often criticised for entrenching local-level power inequalities that lead to the exclusion of certain groups.

This following report examines traditional justice systems in Africa and evaluates how they can contribute transitional justice and reconciliation goals.

Huyse, L., 2008, 'Introduction: Tradition-based Approaches in Peacemaking, Transitional Justice and Reconciliation Policies' in eds. Huyse, L. and Salter, M., Traditional Justice and Reconciliation after Violent Conflict: Learning from African Experiences, International IDEA, Stockholm, pp. 1-22
What role does traditional justice play in dealing with legacies of human rights abuses? How can interpersonal and community-based practices interrelate with state-organised and internationally sponsored forms of retributive justice and truth telling? This International Institute for Democracy and Electoral Assistance (International IDEA) report provides a comparative analysis of traditional justice mechanisms in Rwanda, Sierra Leone, Mozambique, Uganda and Burundi. Most of the countries studied combine traditional justice and reconciliation instruments with other transitional justice strategies.
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Much of the literature on the use of traditional justice systems in transitional justice focuses on the gacaca courts in Rwanda. These are state-sponsored courts to try genocide cases at the local level. Inspired by traditional practices, they act as specialised grassroots courts to serve as alternatives to the formal courts.

Penal Reform International Research Team, 2003, On Gacaca, Report IV: January 2003, PRI.
The confession procedure has become a cornerstone of the Rwandan alternative to formal courts in dealing with the genocide. How effective is it? What are the drawbacks? This report by Penal Reform International assesses the gacaca system and argues that while it is probably the best method of speeding up the judicial process, there is a danger that it can lead to a presumption of guilt rather than a presumption of innocence. Other PRI gacaca monitoring reports can be found at www.penalreform.org
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Brouneus, K., 2008, 'Truth-Telling as Talking Cure? Insecurity and Retraumatization in the Rwandan Gacaca Courts', Security Dialogue vol. 39, no. 1, pp. 55-76
How does testifying in truth and reconciliation commissions affect psychological health? Is the experience healing or retraumatising? This Security Dialogue study presents evidence from interviews with women who have testified in Rwanda’s local gacaca courts. The study finds that traumatisation, ill-health, insecurity and isolation dominate the lives of the testifying women. They are threatened before, during and after giving testimony in the gacaca.
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What other resources are available on the GSDRC?


Additional information resources

Among the most useful sites are:

  • International Internet Bibliography on Transitional Justice
    This page includes around 2000 texts in English and German on transitional justice mechanisms, international law, history and democratisation, and a country index featuring texts from Africa (particularly South Africa), Western and Eastern Europe, Asia, the USA and Latin America. This bibliography is a joint project by the Law Faculties of the University of the Western Cape, Cape Town, and Humboldt University, Berlin.
  • INCORE Guide to internet sources on Truth and Reconciliation
    This guide includes further links to relevant academic centres, articles, news articles, and NGOs.
  • The International Centre for Transitional Justice
    This useful website includes information on in-country assistance in Asia-Pacific, Africa, the Americas and Europe. The ICTJ newsletter, 'Transitional Justice in the News', provides regular updates on events and developments throughout the world. The entire archive can be viewed on the website.
  • The International Institute for Democracy and Electoral Assistance (IDEA)
    This site includes country-specific reports on a range of countries undergoing transition and the 2 online handbooks mentioned above.
  • Centre for the Study of Violence and Reconciliation (CSVR)
    The CSVR’s Transitional Justice Programme explores the relationship between past conflicts, reconciliation, violence prevention and justice.  Its site includes discussion of these issues and links to research and intervention projects and a range of publications.
  • African Transitional Justice Research Network (ATJRN)
    The ATJRN builds the capacity of local level researchers and civil society organisations in African countries so that they can inform and evaluate transitional justice mechanisms. The site contains a variety of transitional justice publications.
  • Justice in Perspective
    This site provides information on transitional justice mechanisms which have been, and are currently being, undertaken or explored in various countries. The information is prepared to provide a quick overview of the different institutions and processes and easy access to key sites.
  • Oxford Transitional Justice Research (OTJR)
    The OTJR is an inter-disciplinary network of Oxford-based staff and students working on issues of "transition" in states recovering from mass conflict and/or repressive rule. It publishes working papers and online debates.
  • Research Group on Transitional Justice
    This research group, based at the Faculty of Law of the Catholic University of Leuven, conducts research, teaching and consultancy work in transitional justice.

For information on some transitional justice initiatives around the world:

 

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