Transitional justice refers to the employment of mechanisms such as truth commissions and war crimes tribunals. Its aim is to transform the cessation of hostilities into a solid foundation for a peaceful future and to bridge the gap between a “negative” and “positive” peace. Issues of justice, accountability, truth, reparations, and reform fester if not addressed in the aftermath of conflict. While traditional prosecution for crimes often focuses on retribution and deterrence, transitional justice may combine aspects of both retributive justice and restorative justice. Rwanda provides one example of a transitional justice system utilizing both the restorative and retributive strains. The International Criminal Tribunal for Rwanda (ICTR) prosecutes those charged with certain levels of crime, whereas the local gacaca court system arranges for hearings amongst members of the community and those accused.
The aims of transitional justice mechanisms often align with those of rights-based humanitarian agencies. Both seek to prevent suffering within a population; however, transitional justice is a political process, which works to establish long-term stable democracies, whereas humanitarian action works to alleviate suffering in the immediate period. When humanitarian actors appear supportive of transitional justice mechanisms they begin to divert from the principle of neutrality and may face access and security challenges. In 2009, the International Criminal Court, which will be discussed in detail below, issued an arrest warrant for Omar Al-Bashir, then-president of Sudan, on charges of war crimes and crimes against humanity. Sudan summarily expelled ten humanitarian organizations from the country, in protest of the court’s warrant. The government claimed that the organizations were cooperating with the court and attempting to politically destabilize the country. This tension often appears in the broader interaction of humanitarian action and peace building. For more on that topic, please see the peace building thematic area.
There are instances when the facts of a particular conflict are not known by the affected population and, namely in a non-international armed conflict, the parties lack a shared history. Over the past 30 years, truth commissions have been established as a means of establishing a set of basic facts concerning the conflict. Truth commissions are non-judicial forums in which those affected by conflict may address the experiences they faced, providing an account of violations of human rights and humanitarian law. They are similar to Commissions of Inquiry yet cover a broader scope. Both mechanisms are authorized to engage with the population and house a platform for recording abuses. While truth commissions often cover an extended period of conflict, commissions of inquiry focus narrowly on specific incidents. Expert Priscilla Hayner’s delineation of the key components of truth commissions are that they: (1) focus on past, rather than ongoing, events; (2) investigate a pattern of events that took place over a period of time; (3) engage directly and broadly with the affected population, gathering information on their experiences; (4) are a temporary body, with the aim of concluding with a final report; and (5) are officially authorized and empowered by the state under review.1
Perhaps the most famous truth commission was held in South Africa following the state’s transition from an apartheid regime. The process has been celebrated for its emphasis on forgiveness yet criticized for its policy of individual amnesties. The South African model is one of many, and neither forgiveness nor amnesties are general requirements. Beyond South Africa, commissions have been held in Chile, Argentina, Peru, Bolivia, Guatemala, Rwanda, Kenya, Liberia, Serbia, South Korea, Morocco, and elsewhere. These commissions each differ in the length and intensity of the conflict they address, the culture in which they are established, and the desired outcome of the process. Final reports may be used as evidence in future criminal proceedings or as records of the country’s past. Given the array of experiences, it is important to ensure any commission executed post-conflict is individually tailored to address the particular needs of the affected population.
Criminal tribunals, both ad hoc and permanent, are also used in the transitional justice process. They are intended to ensure accountability and provide justice for the affected population through exercise of the rule of law. They can be used in conjunction with a truth commission or separately, depending on the conflict they address. For example, the response to the Rwandan conflict was use of a truth commission, establishment of the ICTR and use of traditional gacaca-style courts. In criminal proceedings, domestic courts are allowed the first opportunity to prosecute; however, if they are unwilling or unable to prosecute, cases may be transferred to the International Criminal Court (ICC) or to an ad hoc tribunal such as the ICTR or International Criminal Tribunal for the former Yugoslavia (ICTY).
Created under the Rome Statute in 1998, the ICC sits in the Hague and hears cases brought before it by member states or by recommendation of the UN Security Council. As of August 2012, there are 121 States party to the ICC but cases may also be brought against non-party States on the condition that the UN Security Council will recommend the situation to the court. Temporary systems structured as either an international court or as a hybrid system of international and domestic judicial systems are more commonly used than this permanent court. The ICTY and ICTR were established prior to the ICC’s creation and other tribunals, such as the Special Tribunal for Lebanon or the Extraordinary Chambers in the Courts of Cambodia, cover events not subject to the jurisdiction of the ICC.
Whether international or hybrid, tribunals possess limited jurisdiction, looking only at the duration of the conflict and in certain areas delineated in their originating statutes. The limited jurisdiction helps the courts not only maintain the budget but focus solely on conflict-related violations as opposed to human rights violations, etc. that were not related to the conflict. The jurisdiction and the applicable law are noted in the originating statutes of each court system. Typically included is a mixture of international criminal law, domestic law, and international human rights law. Ad hoc tribunals have been used in the Balkans, Rwanda, Cambodia, Lebanon, Sierra Leone, and East Timor.
1PRISCILLA HAYNER, UNSPEAKABLE TRUTHS: TRANSITIONAL JUSTICE AND THE CHALLENGE OF TRUTH COMMISSIONS, pages 11-12 (Routledge, 2nd ed. 2011).