By David Tolbert and Roger Duthie*

INTRODUCTION

The challenge becomes still even more daunting when a country is confronting not only conflict and governance deficits but also the legacies of massive and serious human rights violations.

“It is difficult enough for a society to emerge from poverty. But it is significantly more difficult when specific individuals and groups, often already among the poorest and most marginalised in society, have in the recent past been specifically targeted victims of atrocities and other serious violations.” 

Addressing these thorny and often intransigent issues is a critical challenge in achieving the SDGs, and transitional justice processes thus have an important role to play.

While transitional justice arose from the experiences of countries in Latin America and later South Africa, its processes have now been adopted, implemented, or followed through upon in countries around the world. The essential premise of transitional justice is that for a society to move from a condition where rights were massively violated to one where rights are generally respected, the crimes of the past and their consequences must be addressed. Through a series of measures—including but not limited to reforms, criminal justice, reparations, truth and memorialization—societies aim to build trust and ensure that such violations do not happen again.

In countries that have experienced systematic human rights violations, we contend that progress in attaining peace and development is likely to be more sustainable if societies pursue justice for those violations. SDG 16 calls for the promotion of peaceful and inclusive societies; providing access to justice for all; and building effective, accountable, and inclusive institutions at all levels. It is here that transitional justice can likely make its most direct contribution. However, other SDGs are relevant as well, including SDG 5 on gender equality, SDG 10 on inequality, SDG 4 on education, and SDG 3 on health.

PEACEFUL, JUST, AND INCLUSIVE SOCIETIES

SDG 16 includes a number of targets that are directly related to transitional justice:

• Promoting the rule of law and ensuring equal access to justice
• Developing effective, accountable, and transparent institutions
• Reducing all forms of violence
• Reducing corruption and strengthening the recovery and return of stolen assets
• Ensuring public access to information

Respect for the rule of law has long been considered one of the primary goals of transitional justice. Accountability measures can challenge impunity for serious crimes, help to reform the judicial, security sector, and other institutions that committed, facilitated, or failed to prevent crimes, and foster public trust in the law by demonstrating due process and non-discrimination. The 2011 World Development Report highlighted the importance of transitional justice in sending “powerful signals about the commitment of the new government to the rule of law.” ICTJ’s work supporting accountability efforts have helped countries such as Argentina, Colombia, and Sierra Leone to re-establish the rule of law in the aftermath of atrocities.

“Transitional justice processes can also provide access to justice, most directly for victims of human rights violations, but also for citizens more generally, as those who participate in, benefit from, and witness inclusive transitional justice at work often become more aware of their rights and how to make justice claims.” 

The UN Special Rapporteur for truth, justice, reparation and guarantees of non-recurrence has argued in a 2013 report that massive rights violations reduce people’s capacity for agency and social coordination, both of which reduce their engagement with institutions. Recognition and trust, as goals of transitional justice, can help to reverse this process, and not just for victims. For example, ICTJ’s engagement in places such as Côte d’Ivoire, Peru, The Philippines, and Sierra Leone have helped to increase access to justice through reparations for victims.

Transitional justice measures can also include or lead to the reform of institutions, by making them more accountable and transparent. For example, measures of reform such as vetting can remove government personnel who were responsible for abuses, ensure independence and impartiality, and create or strengthen mechanisms of oversight. Truth commissions that examine past violations often recommend such reforms. Preventing the recurrence of violations is generally considered one of the primary aims of transitional justice, with these reforms serving as “guarantees of non-recurrence,” one of the four UN Impunity Principles that helped give rise to the way the field is understood today. The Special Rapporteur has articulated in a 2017 report – an approach to prevention that includes judicial reforms, constitutional reforms, vetting, and civilian oversight mechanisms, but goes beyond institutions to cover activities and actors in civil society and the cultural sphere as well as individuals.

Transitional justice may also play an important, if less understood, role in reducing the recurrence of violent conflict more broadly, including violent extremism. It may do so by changing narratives about past conflict and countering polarising propaganda; fostering institutional inclusion, legitimacy, and accountability; repairing social relations in divided societies; facilitating durable solutions to displacement; addressing root causes, and transforming societal norms. This is critical given the frequency with which countries follow the well-worn path of a recurrence of national conflict.

“Transitional justice’s contribution to prevention is rather straightforward: by dealing with the past effectively, the risk of recurrence is reduced and the possibility of sustainable peace is increased.”

Quantitative studies suggest that transitional justice can have an effect on preventing the recurrence of conflict, depending on contextual factors. One study shows that certain justice measures can prolong the duration of peace, depending on the way in which the conflict ends and only in democratic societies. Another study suggests that criminal trials are associated with a decrease in the recurrence of conflict, but only when these trials prosecute middle- and lower-ranking officials; on the other hand, there is some evidence that prosecution of high-level actors is associated with an increase in the recurrence of conflict. Another study found that political institutions following the rule of law and refraining from repression to be the most important factor in explaining which countries avoid falling back into conflict, suggesting that transitional justice may contribute to preventing violent conflict precisely by helping to prevent human rights violations.

Transitional justice may also help reduce illicit financial flows and corruption and strengthen systems for the recovery and return of stolen assets. This contribution often is linked to truth commissions that have a mandate to examine links between these issues and human rights violations. Another important element in this regard are criminal prosecutions or civil actions that are brought against corrupt leaders (e.g., Alberto Fujimori in Peru), or institutional reform that targets links between the judicial sector and corruption.

Finally, transitional justice may help to ensure public access to information if truth-telling initiatives and trials serve to provide the public with information previously not widely known or acknowledged about the repression or violence committed by previous regimes or during armed conflict.

BEYOND SDG 16: GENDER, INEQUALITY, EDUCATION, AND HEALTH

While its relevance may be most direct for SDG 16, transitional justice contributes to other goals as well:

• SDG 5: achieving gender equality and empowering all women and girls
• SDG 10: reducing inequality within and among countries
• SDG 4: ensuring inclusive and equitable quality education
• SDG 3: ensuring healthy lives and promoting well-being

Addressing the gender-related dimensions of human rights violations, including but not limited to sexual violence and gender discrimination, is at the heart of transitional justice work, and it may help to prevent the recurrence of such injustice and to reform relevant laws and institutions. In addition, designing and implementing justice processes in gender-sensitive ways can help to foster women’s participation and leadership. Ensuring the participation of women and girls in consultation processes is just a first step: In a number of instances, such as in Tunisia, the truth commission has a gender or women’s sub-commission to ensure that the voices of women are heard and the harms they suffered are addressed. Making certain that truth commissions and other processes bring to the light of day and prosecute rape and other violent sexual crimes has been a key element of transitional justice and is directly linked to SDG 5.

Transitional justice processes may also help to reduce inequality and marginalisation by increasing the capacity of victims and other citizens to act and coordinate their efforts, as noted above; responding to violations of economic, social, and cultural rights; and addressing the structural inequalities and related grievances that often facilitate, and can be exacerbated by, massive human rights violations. Transitional justice processes often draw attention to the root causes of violations and to the responsibility of actors such as corporations, international institutions, and powerful nation-states in current, recent, and historical injustices as well as economic crimes, such as pillage. In Côte d’Ivoire, Democratic Republic of Congo, Liberia, Nepal, and Tunisia, ICTJ has supported efforts to ensure that justice measures meaningfully address issues of gender, inequality, and marginalisation.

As explored by previous ICTJ-UNICEF research, human rights violations are often linked to education, such direct attempts to deprive children and youth of schooling or to manipulate teachers and textbooks in order to legitimise repression and reproduce violence. The legacies of violations in educational systems—including segregation in school systems, curricula that is divisive or silent about the past, and unequal access to education—can be significant, affecting how knowledge of trauma is passed on to future generations. But education can also be an important instrument for remembering the past and expanding the reach of justice measures. Germany, which has made education on the Holocaust and other aspects of its abusive past a central pillar of its curriculum, has changed the national narrative regarding the country’s history. It is an example of education’s critical role in establishing the truth about the past and ensuring that violations do not recur.

Finally, though not often explored, there is a strong, if indirect, relationship between transitional justice and health. In countries where armed conflict has been waged with little regard for its humanitarian impact, such as the Central African Republic, Syria, and Yemen, the population’s overall health suffers tremendously in terms of the number of deaths, physical and psychological injuries, and occurrences of famine and disease. Moreover, medical facilities are often destroyed.

“Nothing could be more crucial to ensuring the health of millions of people who are the victims of war and of human rights abuses than stopping such injustices and making sure they do not recur.”

To the extent that transitional justice can contribute to lasting peace, justice, respect for the rule of law, and the prevention of violence, its value in terms of health and well-being should be acknowledged.

CONCLUSION

The potential role that transitional justice can conceptually play in implementing the SDGs is clear, and ICTJ’s work and research leads us to believe that it can play this role in practice too. Nevertheless, ensuring that transitional justice contributes to sustainable peace and development as positively and effectively as possible will face technical and political obstacles. To start with, the SDGs do not explicitly mention the term transitional justice or the need for societies to respond to past human rights violations. Furthermore, the indicators selected to measure progress within the relevant SDGs are unlikely to capture the challenges facing fragile and conflict-affected countries dealing with the legacies of past atrocities. It is important therefore that those of us in the field continue to gather the evidence and argue the case persuasively for the value of transitional justice.

Furthermore, the proposition that transitional justice can, in theory, contribute positively to development does not mean that it necessarily will. In practice, whether it does or not depends on the scope of its processes, how those processes are designed and implemented, and how appropriate they are to the specific context.

“If transitional justice efforts focus too narrowly on physical integrity crimes, if they neglect equally harmful violations of economic and social violations, if they are designed such that they discriminate against certain groups or are perceived as victor’s justice, if they are overly legalistic, technical, and apolitical, then they risk leaving unaddressed or even reinforcing the structures and grievances that led to conflict in the first place.” 

It is therefore crucial that transitional justice practitioners continue to learn from past experience and adapt to new circumstances.

The current crises facing the international community create further challenges for transitional justice and human rights work. The growing number and changing dynamics of violent conflict, the displacement of millions of people, and the humanitarian and social disasters that affect multiple regions of the world impact both local and global politics. Rising nationalist and populist movements and authoritarian regimes are leading to the closing of civic spaces in many of the countries where massive human rights violations occur and shrinking support from donor countries. Despite these challenges, it is critical that the agenda for sustainable development and peace include transitional justice.

*This article was originally published here.