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How does transitional justice relate to development?

Updated on February 13, 2015

How does transitional justice relate to development?

How does transitional justice relate to development?
What is transitional justice? Rosemary Nagy (2009, p.276) tells us that “Transitional justice seeks to redress wrongdoing but, inevitably, in the face of resource, time and political constraints, this is a selective process. Transitional justice thus involves a delimiting narration of violence and remedy.” Roht-Arriaza and Mariezcurrena (2006, p.2) go one step further and define transitional justice as “that set of practices, mechanisms and concerns that arise following a period of conflict, civil strife or repression, and that are aimed directly at confronting and dealing with past violations of human rights and humanitarian law.” Transitional justice is a process by which certain actions are taken to quell a legacy of violence and to abrogate the social, political, and economic framework of a region to better comply and to better serve victims of mass violence. How does transitional justice contribute to peacebuilding and to the development of a region? This essay will cover a number of things. This essay will cover the following: the complexity and some of the problems associated with transitional justice, the significance of involving citizens in these mechanisms and in the decision making process, how transitional justice can expedite and contribute to the process of peacebuilding if certain changes are made, and how these changes are conducive to development and long term peace of a region affected by violence.
The ideal aspiration of transitional justice, in a region that has experienced violence, is to transition from a state of violence to a state of potential long term peace by taking certain measures. Rosemary Nagy (2009, p.275) tells us that “transitional justice may be alien and distant to those who actually have to live together after atrocity. It is accused of producing subjects and truths that are blind to gender and social injustice.” There are a number of problems associated with transitional justice. Besides the fact that transitional justice seems most pivotal only after violence, one of the problems, as Nagy (2008, p.280) states is that “Transitional justice also implies a fixed interregnum period with a distinct end; it bridges a violent or repressive past and a peaceful, democratic future. Notions of ‘breaking with the past’ and ‘never again’, which align with the dominant transitional mechanisms, mold a definitive sense of ‘now’ and ‘then’.” When it comes to restorative justice, truth and reconciliation commission are most commonly used. These commissions are not always the best way to go, because it can and actually has interfered in international peace efforts and conflict resolution negotiations. These commissions have interfered in both legal trials in Yugoslavia, and in the peace building process in Cambodia. Lambourne (2009, p.1&2) tells us “For example, the decisions to establish the Special Court and the Truth and Reconciliation Commission (TRC) in Sierra Leone following the end of the civil war were made by the UN and the Sierra Leonean government.” One of the biggest problems is that subsequent to a violent event, the international community and the United Nations try to come up with plans on their own. The problem with this is that the people who have been personally affected and negatively influenced by the violence have no say in any decisions or plans that involves them and their country. The international community is not playing a big enough role. Orford (2006, p.862) notes that “The East Timor situation thus points to a further concern that transitional justice operates in such a way that ‘the international community is absent from the scene of violence and suffering until it intervenes as the heroic saviour’.”
What role does the United Nations play in all of this? The role of the United Nations is to maintain international peace and security. The United Nations Security Council has the authority to deploy a peacekeeping operation wherever they see fit. They also decide when to deploy a peacekeeping operation. As previously mentioned, war crimes tribunals were set up to try perpetrators of war crimes and crimes against humanity. After this, the objective is restoration, reformation and peacebuilding. Lambourne (2009, p.7) tells us “As defined by the UN, peacebuilding encompasses a wide range of political, developmental, humanitarian, and human rights programmes and mechanisms designed to prevent the outbreak, recurrence, or continuation of armed conflict.” History tells us that the biggest problem with this is that the United Nations is incredibly slow to act before, during, and even after mass violence. The biggest failure of the United Nations would have to be Rwanda. Rwanda had no choice, but to endure and face barbaric violence. The prescient United Nations Security Council had made a decision to pull out thousands of UNAMIR troops who could have done something to help the victims of Rwanda. Laws are put in place to deter potential perpetrators from committing crimes and if laws are broken than the law is meant to punish those perpetrators. Unfortunately, the victims and the families of the victims will never have justice and the perpetrators will never face retribution or a day behind bars. Villia Jefremovas (1995, p.28) explains why and he explains this faultlessly in his article, Acts of Kindness: Tutsi, Hutu and the Genocide, by saying “Beyond the drama of perpetrators and victims of these crimes, however, there are many experiences left unreported. Amongst them lie the forgotten stories of humanity: those who struggled and resisted, as well as those who succumbed or fled.” International Criminal Courts were established and set up to try perpetrators who had committed immoral crimes against others. Lambourne (2009, p.2) tells us “From the perspective of civil society recovering from mass violence, justice may be sought as redress for crimes, but also as a way of coming to terms with the past and building a new future.” By establishing International Criminal Courts and enforcing the law by trying criminals in a court of law, this could be conducive to building a new and peaceful future. Unfortunately, things are not so simple. Nagy (2009, p.280) tells us that “yet it appears that the ICC is facing situations where actual prosecution cannot not take place because of difficulties of arrest and, even if trials begin, they may be too little or even detrimental political effect.” Although International Criminal Courts were established to try perpetrators in court and enforce some kind of justice, it simply is not enough. The International Criminal Courts have failed Uganda, the Democratic Republic of the Congo, Darfur, Yugoslavia, Kosovo, and Rwanda. These problems will never be resolved and the families of the victims will never have closure. Even after the genocide, the United Nation did not do enough to improve, to rebuild, and to provide Rwanda and the people of Rwanda with the political, economic, and social stability necessary to grow as a country. After all the pain and suffering endured by a region that has experienced mass violence, the United Nations expects a developing country to conform to a Western model of retributive justice. A number of war crimes tribunals and truth and reconciliation commissions have been set up in several countries. It is erroneous to presume that the war crimes tribunal and the truth and reconciliation commissions will deal and solve a myriad of complex problems. Lambourne (2009, p.6) tells us that “The complementarity and coordination of this pluralist approach has caused problems, however. For example, in Sierra Leone, some people avoided the TRC because of fears of prosecution by the Special Court.” So it all seems as if there are a number of countries who are trapped and have no other choice but to function and look for answers within this paradigm of western justice. Similarly, Findlay (2000, p.187) refers to this as a “new wave of colonialism in the current domain of social control.” The United Nations is also quite subservient to hyper powers like the United States. On March 19, 2003, the United States had broken international laws that bind weaker states together as an international community by invading Iraq. The United States had invaded Iraq to decimate what was left of Saddam Hussein’s already imploding regime, because he was ostensibly hiding weapons of mass destruction. The Bush administration has not been questioned. The only thing that this proved is that international laws do not apply to hyper powers (Kagan, 2005, p5), such as he United States. Powerful states can disregard and even look past these international laws. Weaker states must abide by these international laws.
When it comes to effectuating transitional justice mechanisms, it is vital that citizens of a region who have been affected by mass violence participate in the reformation “design”. Citizen involvement is incredibly vital when it comes to development of a region. One of the biggest problems was that many decisions were made for victims of mass violence. We saw this in Sierra Leone. After the civil war in Sierra Leone, a truth and reconciliation commission was set up by the United Nations. Anne Orford (2011, p.1) tells us “Since the late 1950s, the United Nations (UN) and other international actors have developed and systematised a body of practices aimed at ‘the maintenance of order’ and ‘the protection of life’ in the decolonised world.” The fact that people have no choice but to rely on the prowess of the United Nation is a problem in itself considering their terrible track record. The United Nations set up a truth and reconciliation commission of their own volitions without seeking the approbation of the majority of people who were directly affected by the civil war. Taking charge and subjugating everyone else to “Western” rules set up by the United Nations is not the answer. Nagy (2008, p.275) tells us that “Yet there also appear worrisome tendencies of the international community to impose ‘one-size-fits-all’, technocratic and decontextualized solutions. To what extent does transitional justice appear from on high as ‘savior’ to the ‘savagery’ of ethnic, especially African ‘tribal’, conflict?”
A number of things have to be taken into consideration when international powers are trying to abrogate the social, political, and economic framework of a region to better comply and to better serve victims of mass violence. Things such as tradition, culture, and religion must be taken into consideration. Depending on the region, sometimes all three are intertwined. Disrupting the identity of a region and forcing people to conform and to accept certain reformations may exacerbate the problem. This is and will always be a very delicate topic. Leebaw (2008,p. 117) explains the complexity of the issue by saying “They seek to respond to local practice in order to be perceived as legitimate, yet they also seek to challenge and transform the basis of political legitimacy by rejecting traditions and practices implicated in systematic political violence.” The important question to ask is not when, but how can you help a region that has been marred by violence? How can you help a region without changing its identity? With the involvement and cooperation of local citizens, they can find ways to work around traditions, cultures, and customs while at the same time working with the bounds of the law to better serve the needs of victims. More trust can be accrued by working together with the locals towards improving, rebuilding, and transforming a region that was once affected by violence, without eradicating a regions identity. How can a country that has been affected by violence move forward? The past has to be brought up in such a topic. In Unspeakable truths: transitional justice and the challenge of truth commissions, Hayner (2010, p.4) brings up an incredibly vital point by asking whether or not a country can grow and develop on a foundation of forgotten history. Should a country forget about the past in order to move forward? It is difficult for many people, especially victims and families of the victims, who have endured and lived through violence to forget or become inured to that sort of pain and pressure. Hayner (2010 p.3&4) tells us “While individual struggle to rebuild shattered lives, to ease the burning memory of torture suffered or massacres witnessed, society as a whole must find a way to move on, to recreate a livable space of national peace.” The only way towards growth and development is to face the past and not to forget it. Awareness of the past can serve as a driving force to come up with and implement knew long term plans to ensure that history does not repeat itself.
In order for transitional justice to be efficacious a number of things have to take place. The first and probably the most important part is to come up with long term goals that will transform the social, political, and economic framework of a region for the better. Once there are long term goals than its time to enforce appropriate mechanisms that will be conducive to development and peace. The social, political and economic stability of a region must be some of if not the most important aspects to focus on first. Long term plans that are slowly put into practice that focus on recovery, reconstruction, and reformation are far more important than legal justice at the beginning. This may sound insane and inapposite, but the stability of a region that was once affected by violence is so incredibly important. What will come of regional stability is a pragmatic domino effect. With regional stability comes recovery, and with recovery comes reconstruction, and with reconstruction comes reformation, and with reformation comes development. Families of victims who had endured violence, may have a problem with this at the beginning, because they would want justice and the law to be enforced, but it is useless to enforce the law on a broken foundation that is feeble. The pragmatic domino effect sounds incredible, but the reality is that without international support none of this can be put into effect. These plans are incredibly costly and physically and mentally draining. Without the help of outside and regional governments along with the United Nations all of this is impossible. Once the region has stability than it can implement and focus on the rule of law. Instead of focusing on the transitional justice mechanisms applied in the past, what could serve to be more effective is transformative justice and change. Lambourne (2009, p. 20) explains the importance of the concept of transformative justice by saying “A concept of transformative justice that links the past and the future through locally relevant mechanisms and processes that provide accountability, acknowledgement, socioeconomic justice and political justice should be the basis for an integrated and comprehensive peacebuilding.” Finally, the collaboration between regional governments, international forces, and the locals of a region is key. The participation of locals can expedite the development of a region and it can strengthen the ties between people and government officials. Participation is vital in reforming a region without erasing its identity. All of this is conducive to development and long term peace of a region affected by violence.

Bibliography:
Orford, A. (2011). International authority and the responsibility to protect. Cambridge University Press.
Orford, A. (2006). Commissioning the truth. Colum. J. Gender & L., 15, 851.

Nagy, R. (2008). Transitional justice as global project: critical reflections. Third World Quarterly, 29(2), 275-289.
Roht-Arriaza, N., & Mariezcurrena, J. (Eds.). (2006). Transitional justice in the twenty-first century: beyond truth versus justice (p. 2). Cambridge: Cambridge University Press.

Shaw, R., Waldorf, L., & Hazan, P. (Eds.). (2010). Localizing transitional justice: Interventions and priorities after mass violence (pp. 111-132). Stanford: Stanford University Press.

Leebaw, B. A. (2008). The irreconcilable goals of transitional justice. Human Rights Quarterly, 30(1), 95-118.

Wendy Lambourne (2009) Transitional Justice and Peacebuilding after Mass Violence. The International Journal of Transitional Justice, 2009, 1–21
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Hayner, P. B. (2010). Unspeakable truths: transitional justice and the challenge of truth commissions. Routledge.

Findlay, Mark, ‘Decolonising Restoration and Justice in Transitional Cultures,’ in Restorative Justice: Philosophy to Practice, ed. Heather Strang and John Braithwaite (Aldershot, England: Ashgate Publishing, 2000), 187

Jefremovas, V. (1995). Acts of human kindness: Tutsi, Hutu and the genocide. Issue: A Journal of Opinion, 28-31
Des Forges, A. L., Human Rights Watch, & International Federation of Human Rights. (1999). “Leave none to tell the story”: genocide in Rwanda (Vol. 3169, No. 189). New York: Human Rights Watch,

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