This piece first appeared on Peacelab.blog, 15 November 2018, and has been republished with their permission.
The rapid success of transitional justice led to blue-printing mechanisms without adequate consideration of context. The German government should think of transitional justice not only as a set of mechanisms, but also as a stance to any activity in any field it supports in transitional societies. Thus, the government should ensure past-sensitivity in all interventions it pursues in post-conflict or post-authoritarian contexts.
Transitional justice managed to affirm its position within the fields of democratic transition and peacebuilding in a short period of time. The rights to truth, justice and reparation as well as guarantees to prevent recurrence are more entrenched than ever in international policy and law. A range of innovative mechanisms – including special criminal jurisdictions, truth commissions, reparation programmes, and vetting processes – has been developed, established and tested, operationalizing these rights in transitional contexts. Also, impunity, not justice, is now generally recognised to increase the risks of conflict recurrence.
Yet the rapid success of transitional justice is also its Achilles heel. Transitional justice mechanisms developed and successfully applied in one context have been transferred to the next without sufficient consideration about contextual specificities. In particular, the significant differences between post-authoritarian and post-conflict environments have been insufficiently explored and the consequences of these differences have been inadequately considered in the design of transitional justice mechanisms.
The mechanisation of transitional justice
This fallacy of “templatization”, as Pablo de Greiff terms it, points to another challenge which I call the “mechanisation” of transitional justice. The success of transitional justice is in part due to its operational mindset which led to the development of innovative mechanisms and techniques to realise rights under the extremely demanding circumstances of societies emerging from conflict or authoritarian rule. However, this has also contributed to a mechanical understanding that defines transitional justice as a set of dedicated mechanisms – often predefined and usually ad-hoc.
According to the UN Secretary-General, for instance, transitional justice comprises “the full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuses”. The European Union adopted the same definition and explicitly refers to four essential elements of transitional justice, namely (1) criminal justice; (2) truth; (3) reparations; and (4) guarantees of non-recurrence/institutional reform. Typically, mandates of UN peacekeeping operations and EU crisis management missions as well as relevant passages in peace agreements refer under the heading of transitional justice to dedicated, ad-hoc mechanisms to promote the rights to truth, justice and reparation as well as sometimes to vetting – the one ad-hoc institutional reform process that is commonly understood to fall within the framework of transitional justice due to its accountability dimension.
Transitional justice is a stance
These mechanisms are critical to effectively deal with legacies of conflict or authoritarian rule. But they are not enough. Pablo de Greiff recognises this and advocates to “think big about transitional justice,” to connect transitional justice with SSR and rule of law, and to adopt a “framework approach” to prevention that incorporates preventive interventions not just in the institutional but also in the societal, cultural and individual spheres.
In addition, I propose we ought to think of transitional justice not only as a set of dedicated mechanisms and processes, but also as a stance, an approach that infuses the ways any activity in any field is carried out. Adopting such a transitional justice stance means looking at any activity societies emerging from conflict or authoritarian rule undertake through a past-sensitive lens. Doing so not only contributes to recurrence prevention but also helps these activities to better achieve their own objectives.
A past-sensitive stance in SSR
What does this concretely mean for a government like Germany? In SSR, for instance, a past-sensitive stance can complement mainstream approaches that are very much future-oriented and tend to neglect the past and its implications. This may mean focusing on disabling abusive structures in the security sector so that violations cannot easily be repeated. It may mean paying particular attention to the needs of victims to address root causes of violations, ensuring their participation in an SSR process and promoting their representation in security institutions. Also, it may mean establishing dedicated mechanisms that meet the victims’ particular security needs.
A past-sensitive stance in SSR obliges partners such as Germany to take into account the massive legitimacy deficit that security institutions mostly face after conflict or authoritarian rule – and to undertake special efforts to enhance their trustworthiness such as making apologies for crimes committed, or changing insignia of security institutions that are associated with the abusive past. Or, development programs such as improving health care, creating jobs or promoting education might account for the specific needs of victims without necessarily turning into a dedicated reparations effort.
On the other hand, ignoring abusive legacies in peacebuilding and development can have various negative effects. Development and peacebuilding activities that are past-blind may, for instance, prolong a culture of impunity and continue to marginalise victims. Also, a lack of a past-sensitive stance in development and peacebuilding activities may perpetuate the existence of criminal networks that provide opportunities for further abuse, and it may strengthen elites with little interest in changing an abusive system from which they benefitted in the past. As a result, a recurrence of the same violations becomes more likely.
Ensure past-sensitivity in all German activities
Adopting a past-sensitive stance will help peacebuilding and development to account for the abusive past in their own spheres. This will not only contribute to recurrence prevention – a core goal of transitional justice – but also help these fields to better achieve their own objectives. The German concepts of Vergangenheitsarbeit (dealing with the past) and Erinnerungskultur(culture of memory), as well as Germany’s varied experiences with dealing with the past in many fields can nourish such a comprehensive understanding of transitional justice.
Hence, the transitional justice strategy of Germany should not only promote and support transitional justice mechanisms but also adopt past-sensitive approaches in an open-ended array of activities in societies emerging from conflict or authoritarian rule. To this end, unit(s) within government that are responsible for transitional justice should also ensure past-sensitivity in all interventions Germany pursues in post-conflict and post-authoritarian contexts.