Transitional Justice: An Overview Of Policy Options And Challenges
| Autor | Emmanuel Kisiangani |
| Páginas | 10-27 |
Page 10
The end of the cold war has witnessed an increasing ascendancy of practices for dealing with questions of past confl ict and human rights abuse.12 Principles of democracy, human rights, and transitional justice are part of this. In this sense it can be said that an international understanding of dealing with past confl ict and human rights abuse is slowly evolving. It is contributing to pushing the idea of dealing with confl ict away from the basic aim of achieving the cessation of physical hostilities, toward addressing the underlying structures and effects of that conflict in order to prevent its re-occurrence. The world has witnessed increasing interest in the question of transitional justice in societies that are moving away from confl ict and human rights abuse. These societies have to decide whether or not to deal with perpetrators of past human rights abuse. This paper examines the challenges and policy options for dealing with these questions of past confl ict and human rights abuse. It aims to build a theoretical and practical understanding of the role of transitional justice, and the underlying assumptions and relationship between its various dimensions, including the question on whether to prosecute or not, the challenges of what constitutes justice and reconciliation, and the problems inherent to truth telling processes. It draws most of its illustrations from the context of South Africa, where the author carried out a number of studies on related themes.
Broadly speaking, the question of transitional justice has become more critical, particularly after the end of the Cold War, with various countries attempting to utilise it as a tool for building sustainable peace, democracy and the rule of law. Many signifi cant but unanswered questions remain, however, as to whether transitional justice mechanisms do actually infl uence or produce the results anticipated in their mandates. The concern over whether, and in what ways, fl edging democracies should hold accountable those involved in the previous regime, and who stand accused of committing gross violations of human rights, has indeed produced intense legal, ethical, political and practical debate. 3 Transitions from authoritarian to democratic rule can represent an opportunity as well as a risk to successor governments. The successor government faces both ethical principles that ought to be pursued and actual political opportunities and constraints that ought to be taken into account. Juan Méndez argues that it is a mistake for the human rights movement to "allow itself to be painted into a corner of either a "legalistic" or a "moralistic" position. He discusses the legal and ethical principles that ought to be followed, and the political challenges inherent to political transitions, and concludes that there it is necessary to take a sober and realistic view when proposing any accountability measures. 4 The primary concern of an emerging democracy would normally involve establishing the rule of law and fostering precautionary measures to promote the respect of human rights, in order to ensure that human rights abuses do not occur again. Some scholars argue that failing to prosecute those responsible for committing gross violations of human rights could seriously undermine the legitimacy of the newly elected government. While human rights groups, in particular, believe that impunity remains one of the main contributing factors to continuing patterns of violence, 5 developing a strategy of transitional justice is not an easy task; it combines the enormous challenges and difficulties of balancing a range of competing and legitimate interests, such as redressing the harm suffered by the victims, while at the same time, ensuring the democratic stability of the country.
The politics associated with the post-Cold War in countries such as Chile, the former Yugoslavia, Rwanda and South Africa are indicative of a trend that has come to be broadly referred to as Transitional Justice. In all these countries, transitional responses, in the form of truth commissions Page 11 and criminal tribunals, have been established to deal with past injustices. While these measures have broadly been referred to as Transitional Justice, the question of what constitutes transitional justice remains unclear and is debated among scholars and practitioners. Alex Boraine observes that the essence of transitional Justice is to address challenges facing societies that are moving away from authoritarianism to a form of democracy, and that often, these societies are emerging from a serious conflict, with high incidences of human rights violations. 6 As a consequence there is often a breakdown in the judicial system, stark divisions and apportioning of blame, institutional collapse, and economic downturn. Transitional justice in this case should not be seen as a contradiction of criminal justice, but rather, as a deeper, richer, and broader vision of justice which seeks to confront perpetrators, address the needs of victims, and start a process of reconciliation and transformation, moving towards a more just and fair society. 7 According to Villa-Vicencio, the five components of transitional Justice are accountability, truth recovery, reconciliation, institutional reform and reparations. 8
The task of addressing the past can be difficult, perhaps even impossible because of the competing goals such as discovering and publicizing the truth about past human rights abuses, making a symbolic break with the past, promoting the rule of law, and strengthening democratic institutions, deterring future wrongdoing, punishing perpetrators of such crimes, healing victims, and achieving social reconstruction. The challenge facing new governments that come to power on a platform of democracy is that they need to address the past in a manner consistent with most of these goals. 9 While this assumption may be noble in theory, it can be extremely difficult to achieve in practice, particularly when one considers that key figures in the predecessor government may often continue to wield influence and resist attempts to expose their past wrongs. Indeed the policy adopted to deal with past impunity is most likely to be a result of the path taken toward the democratic dispensation, as was the case in South Africa, where the TRC arose out of a negotiated settlement. Dealing with past human rights violations can only take place in a context in which the stability and peace of the country are considered to be durable enough to withstand the challenges of the process. 10
Societies that are making the transition from repressive regimes to more democratic ones are faced with a number of dilemmas, including the need to distinguish between the old regime and the new one. The new government must decide whether to punish the leaders and henchmen of the old regime, or grant them general or conditional amnesty. If the new government decides to punish or prosecute, it will normally be faced with the challenge of determining who in the former regime should be prosecuted. In other cases, where the nature of past human rights abuses are diverse, the new government has to decide whether to prosecute only issues of human rights violations, or whether to include other crimes such as economic mismanagement. The new government has to deal with a wide range of transitional concerns such as whether or not to purge members of the old regime from the public sector. While the continued presence of the old bureaucrats could give the impression that the new government is merely following the old regime's conventional way of doing things, those individuals may sometimes be the only ones with the knowledge needed to administer crucial public sector institutions. In South Africa for instance, institutions such as the judiciary had to retain personnel from the previous regime because the new government did not have new ones to replace them. Furthermore, the new government has to decide whether to compensate victims of past human rights violations, yet the new government may lack the resources to make these compensations and may, in fact, consider the available resources to be better spent on rebuilding the state's institutions and infrastructure. Developing a transitional justice strategy is therefore not an easy task; it entails enormous challenges and difficulties. Neil Kritz, however, observes that while the process of transitional justice may be expensive in the short term, failing to deal adequately with issues of past human rights abuses can provoke new conflicts and make the situation even much more expensive in the long term. 11
According to Alex Boraine, transitional justice is wider than just prosecuting perpetrators, since it is impossible to deal with the true intent of justice through court procedures alone. 12 It is unfeasible to prosecute all offenders in times of political transition. This introduces the vexed problem of selective prosecutions, and according to Boraine, this selectivity undermines the ideals of individual criminal responsibility which are so fundamental to the understanding of the rule of law. Therefore legal punishment cannot be the last word. Transitional justice should be seen as an attempt to complement retributive justice with alternative forms, such as restorative justice. 13Page 12
Broadly speaking, transitional justice entails the application of a wide range...
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