Transitional Justice after Atrocity
Since the mid-1990s, transitional justice has become part and parcel of international and domestic responses to mass conflict and repressive rule in Africa. Incorporating a wide range of processes – including war crimes tribunals, truth commissions, reparations programmes, and community-based reintegration rituals – transitional justice is central to efforts to usher African societies from violence and authoritarianism to stability and democracy. Nearly all peace negotiations today involve calls for accountability for perpetrators of atrocities on the basis that dealing with the past is critical to securing the future.
As a broad field, transitional justice combines pragmatic and lofty aims, seeking to rebuild the physical, political, and judicial infrastructure of recovering societies, as well as reconciling fractured communities, reshaping contested memories, and healing emotional and psychological wounds. This combination of pragmatic and profound objectives reflects the enormous ambitions of transitional justice. It also highlights the wide range of societal concerns and actors that are captured by this field, with processes aimed at the regional, national, community, and individual levels.
The ubiquity, variety, and scope of transitional justice in Africa has generated considerable controversy. This chapter explores four key debates concerning the politics of transitional justice in Africa. First, it examines the ill-defined objectives of transitional justice. This opening section highlights that, while transitional justice mechanisms are commonly advocated to address the legacies of a divided past, their precise aims are rarely clear. Second, tensions between the specific aims of peace and justice have generated heated debates in a wide range of African transitional settings. This issue is especially prevalent following the advent of the International Criminal Court (ICC) and the growing expectation that transitional justice processes should operate during ongoing conflict and delicate peace negotiations. Third, this chapter examines issues of neo-colonialism and problems of external transitional justice interventions, including questions of power, domination, agency, and ownership. Such issues are paramount in Africa, given that most of the societies in question have long histories of colonial rule and fraught interactions with foreign donors, multilateral financial institutions, peacekeeping missions, and multinational corporations. Finally, the chapter explores tensions inherent in attempts to combine international, national, and community-level approaches to transitional justice. This final section highlights recent trends toward ‘holistic’ responses to conflict, which propose combinations of these different levels of processes. In Africa, such approaches have so far proven highly problematic, necessitating clearer thinking about the possible coordination of different types of actors and mechanisms.
Unclear Objectives
There is no doubting the vastness of transitional justice aspirations. The immense challenges faced by societies recovering from conflict or draconian rule have not dampened the enthusiasm for transitional justice in Africa or the expectations of what these processes can achieve. Such ambitions, however, have rarely coincided with clarity about the objectives of these mechanisms. Transitional justice has tended to emphasise the importance of particular institutions – for example, a widespread belief in the need for prosecutions of atrocity perpetrators – without coherently articulating their ultimate purposes. This lack of clarity manifests in two forms: confusion over the meaning of common transitional justice objectives; and uncertainty over which objectives are best pursued by which transitional processes.
First, in scholarly and policy debates over justice, peace, truth, reconciliation, healing, and other concepts, it is not always clear what these terms mean. Both the South African Truth and Reconciliation Commission (TRC) and the International Criminal Tribunal for Rwanda (ICTR), for example, claim to pursue ‘reconciliation’ – the former through exchanging amnesty for truth about apartheid crimes, the latter through the prosecution of the most senior genocide suspects (UN 1995). In the TRC case, punishment and reconciliation were deemed to be incompatible, while the ICTR holds that punishment is a prerequisite of reconciliation. Such examples highlight that different transitional institutions often aim for different political, social, or legal outcomes. However, even when institutions claim to pursue the same objectives – as in the South African TRC’s and the ICTR’s stated pursuit of reconciliation – they (often unconsciously) define these objectives, and the means for achieving them, in very different ways. Judging such institutions according to their own stated aims and comparing them meaningfully when they claim to pursue similar objectives requires greater theoretical precision and clearer conceptions of key terms.
Second, transitional justice is replete with institutional ‘toolkits’, ‘toolboxes’, ‘menus’, and ‘templates’ (Franke 2006; Hamber 2009; ICTJ n.d.), proposing universal methods of addressing past atrocity. This tendency to implement certain ready-made models has precluded careful consideration of the needs of particular transitional settings, the aims they engender, and which processes are most appropriate to pursue particular objectives. The toolkit approach to transitional justice begins with institutions and appears to work backwards through questions of needs and objectives.
Regarding the justifications for transitional justice templates, their short-term objectives are often overly ambitious and their ultimate objectives are rarely explicit. In the short term, there is still major disagreement among transitional justice scholars and practitioners over what particular ‘toolkit’ institutions can feasibly achieve. Should international courts and tribunals aim only to prosecute suspects of serious crimes, or pursue more ambitious ends such as reconciliation? Can truth commissions feasibly aim to recover the truth about the past as well as facilitate healing, reconciliation, and some form of catharsis? Can single institutions realistically pursue multiple objectives and are those objectives themselves compatible? Connected to the earlier concern over conceptual clarity in transitional justice, the field still struggles to elucidate the precise purposes of common transitional processes. Expectations of such processes are often too high, necessitating clearer understandings of what particular approaches to transitional justice can practicably achieve.
Frequently, the broader aim of transitional justice is assumed to be democratization, facilitating the transition of societies toward governance and institutional structures that reflect liberal democratic concerns for individual freedoms, the protection of human rights, and the rule of law. This tendency no doubt derives from prevailing modernization and democratization theories in the early years of transitional justice. The close linkage between transitional justice and democratization, however, makes a teleological assumption that all societies should be encouraged toward similar forms of democracy. Such a view proves problematic when translated to the diverse political, social, cultural, and historical settings in which transitional justice takes place. Furthermore, it emphasizes forward-looking over backward-looking concerns, holding that redress for past wrongs should always contribute to future democratic entrenchment. The implied objective of democratization also privileges – with insufficient justification – society-wide concerns over the harm done to discrete individuals and groups. These concerns regarding objectives highlight important conceptual weaknesses at the heart of the entire transitional justice agenda. As argued below, these theoretical problems substantially affect the practice of transitional justice in Africa.
Peace Versus Justice and the Role of Human Rights Advocates
A symptom of under-developed transitional justice theory is a tendency toward binary debates: accountability versus amnesty, justice versus forgiveness, punishment versus reconciliation, retributive versus restorative justice, law versus politics, international versus local. In most cases, these terms are not mutually exclusive and conceiving them as such prevents the possibility of combining different objectives and approaches. It narrows the options and generates unhelpfully polarized discussions.
A central transitional justice debate in Africa concerns the tension between justice and peace. The conundrum of ‘peace versus justice’ has possessed the field from its earliest years, with scholars and practitioners debating whether justice – and especially punishment through international criminal proceedings – will contribute to peace by deterring potential perpetrators or impede it by prosecuting the same political and military leaders who are essential for viable negotiations. The debate pits ‘realists’, who believe the quest for peace and security should take precedence over justice, against ‘idealists’ and ‘legalists’, who argue that justice is both a good in and of itself, and necessary for long-term stability.
Such tensions were apparent in the early years of transitional justice processes in Africa. The South African TRC, drawing heavily on the experience of truth commissions in Central and South America during the 1980s and 1990s, held that attempts to prosecute those responsible for egregious crimes would only increase the likelihood of further violence. The political compromises that were central to the post-apartheid transition in South Africa barred the prosecution of apartheid leaders, provided they fully disclosed their political crimes. In the South African case, amnesty was seen as crucial to long-term stability and reconciliation. In contrast, the ICTR held that punishment of high-level Rwandan génocidaires was essential for reconciliation and durable peace, especially in terms of eradicating the culture of impunity that was considered a key enabler of the genocide in Rwanda.
While used by advocates on both sides of the ‘peace versus justice’ debate to support their respective positions, the South African and Rwandan examples say more about the impact of different types of political transitions on the choice of transitional justice mechanisms. In the South African case, amnesty was considered a necessity and justice a virtual impossibility during a negotiated transition characterized by political compromise. In the Rwandan case, where an outright military victory by the Rwandan Patriotic Front (RPF) had ended the genocide and facilitated transition to a new government, punishing the previous regime was viable and indeed desirable for both the RPF and the United Nations (UN), still smarting from its embarrassing failure to intervene militarily during the genocide. In these instances, decisions regarding peace or justice were determined more by political exigencies during transition than by high principle normative considerations.
The political scenario that has most energized the international field of transitional justice in recent years – and which has been definitive in the language of ‘peace versus justice’– was the Juba peace talks between the Ugandan government and the Lord’s Resistance Army (LRA) in 2006–08 (Waddell and Clark 2008). Advocates of ‘retributive justice’ through the ICC claimed that law should supersede politics and that any attempts to defer or remove the ICC indictments of the LRA leadership would contravene international law. On the other side, supporters of ‘restorative justice’ advocated the use of community cleansing and reintegration rituals for LRA combatants returning from the bush, and claimed that support for the ICC elevated abstract legal norms over the practical necessity of achieving peace in northern Uganda. Confined by the narrow conceptual architecture of the debate, the parties continually talked past each other, undermining the potential for creative solutions to the serious problems on the table in Juba.
These examples highlight the problems of the binary framing of debates such as ‘peace versus justice’. Such a conceptualization suggests stark choices between polarized policy options. It precludes the possibility of sequencing, for example negotiating a lasting ceasefire before considering justice. It also presupposes that justice must entail punishment rather than other forms of accountability, such as perpetrator apologies, public acknowledgement of harm, and material reparation. During the Juba talks, these alternative formulations garnered some attention – principally among northern Ugandan civil society actors – but were stymied by the polarized debates among the negotiators and their principal interlocutors.
A key generator of this polarization at Juba was the influence of human rights organizations, which prescribed narrow legal responses to the northern Ugandan conflict. A constant stream of advocacy reports and press releases from Amnesty International (AI), Human Rights Watch (HRW), and others throughout the negotiations proclaimed the ICC as the only justifiable response to crimes committed during the conflict and rejected outright other potential approaches, including local reintegration rituals, reform of the national civilian and military courts, and national reparations programmes (AI 2008a, 2008b; HRW 2008). Such claims were made on the basis of generalized legal principles and obligations, rather than the specific political and social circumstances in Uganda.
This points to a larger problem in transitional justice. The field balances uneasily between analysis and advocacy, which is further complicated by the fact that many academics and practitioners engage in both processes. Human rights actors have been powerful in transitional justice from the outset, providing many of its intellectual, institutional, and financial resources. Advocacy organizations such as AI and HRW play a central role in many transitional justice debates. The influence of such advocates, however, has not been universally positive. Human rights ideology – a firm belief, for example, in the need for international judicial responses to human rights violations – has often trumped finer-grained theoretical and empirical analysis, leading to ‘faith-based’ rather than ‘fact-based’ prescriptions (Thoms et al. 2008: 5). These ideologically based influences undermine the ability objectively to question certain assumptions. In particular, what if the advocated responses to massive violations diverge from particular conditions and context-specific needs within transitional societies? The fervent certainty of much human rights advocacy has generated unnecessarily polarized debates and often hampered the tasks of impartial research and informed policymaking.
Neo-Colonialism and Challenges of Foreign Transitional Justice Interventions
A further criticism of the ICC and international justice generally emanating from the Juba talks was that such approaches represent the neo-colonial imposition of external force on African societies. Such critiques proliferated following the ICC’s indictment of Sudanese President Omar al-Bashir in July 2008. Critics of the ICC – including the leadership of the African Union (AU) – viewed this as a violation of the principles of national sovereignty and sovereign immunity. By this reckoning, as an attempt at regime change via international law, the Bashir indictment was rendered even more egregious by the fact that Sudan was not a signatory to the Rome Statute and therefore had not formally recognized the legitimacy of the Court.
The ICC and ICTR have not always responded effectively to accusations of neo-colonial interventions. International transitional justice institutions have often displayed hubris and expressed a civilizing mission toward African societies recovering from conflict or authoritarian rule. Based in The Hague and Arusha, respectively, far from the immediate sites of conflict, such institutions have often treated Africa as a blank canvas for their judicial artistry, seemingly unaware of the continent’s history of fraught engagement with myriad external powers and the impact of this on their own legitimacy. As discussed further in the final section, international courts and tribunals have also rarely sought to coordinate their operations with domestic transitional processes or expressed coherently how they contribute meaningfully to affected communities. These tendencies have fuelled claims of neo-colonial arrogance and political meddling. Concerns over criticisms of lofty detachment are a key reason for the recent trend in creating ‘hybrid’ tribunals, such as the Special Court for Sierra Leone, which are located inside conflict-affected countries and employ both international and national personnel (Kelsall 2009).
Depictions of all-powerful international institutions interfering with fragile domestic states and populations, however, are too stark. The ICC and ICTR have typically struggled to investigate and prosecute cases without the cooperation of African states, which in turn have proven highly effective at using international justice to their own ends (Clark 2011; Peskin 2008). When then-ICTR chief prosecutor Carla del Ponte threatened in 2002 to investigate post-genocide revenge attacks committed by the RPF, the Rwandan government responded by barring the travel of ICTR investigators to Rwanda, and Rwandan witnesses to Arusha, effectively halting the Tribunal’s operations.
In the case of the ICC, the Office of the Prosecutor entered into lengthy negotiations with the Ugandan and Congolese governments before those states agreed to refer their situations to the Court. Having ‘chased’ these state referrals, the ICC was forced to negotiate the terms of its investigations with those governments (Clark 2011). This largely explains why, to date, the ICC has not charged any Ugandan or Congolese government officials, despite the widely acknowledged complicity of state actors in atrocities. In Sudan, Bashir has stymied the ICC’s operations by refusing to allow the Court’s investigators on the ground. In the meantime, he has often succeeded in generating domestic sympathy in the face of the Court’s ‘Western intervention’, thus bolstering his domestic legitimacy. These examples highlight the ability of African states to instrumentalize international justice for their own political gain. This critical agency of African governments is often overlooked in debates over neo-colonialism and the legitimacy of international transitional justice interventions.
Hybridity and Holism: Linking International, National, and Community-Based Approaches
Hybridity is an increasingly common theme in the study and practice of transitional justice. In recent years, a growing trend has emerged in institutional responses to complex conflict situations that advocates ‘legal pluralism’, or hybrid structures in which ‘two or more legal systems coexist in the same social field’ (Merry 1988: 870). Today, legal pluralism usually involves some type of international criminal tribunal and a locally directed truth commission, as in the cases of Sierra Leone and Burundi. The primary purpose of such hybridity is to facilitate holism. A holistic approach to transitional justice provides that multiple political, social, and legal institutions, operating concurrently in a system maximizing the capabilities of each, can contribute more effectively to the reconstruction of the entire society than a single institution. Holistic approaches cater to the various physical, psychological, and psychosocial needs of individuals and groups during, as well as after, conflict.
The trend toward hybrid systems coincides with the greater legitimacy afforded to and more regular use of localized methods of accountability and conflict resolution, which are often designed to augment international and national processes. In 2004 then-UN Secretary-General Kofi Annan stated that in the context of transitional societies, ‘due regard must be given to indigenous and informal traditions for administering justice or settling disputes to help them to continue their often vital role and to do so in conformity with both international standards and local tradition’ (UN Secretary-General 2004: 12).
It is becoming increasingly popular in Africa to employ forms of local or traditional dispute resolution in response to serious atrocities. In many cases, traditional mechanisms have been co-opted by political elites and modified so that they bear only a cosmetic resemblance to their antecedent institutions, calling into question the legitimacy of referring to these institutions as ‘indigenous’ or ‘traditional’. The impetus for community-level transitional justice emanates from various sources, including: the need for faster and cheaper mechanisms to handle enormous backlogs of community-level perpetrators; a frustration with international approaches to transitional justice, especially war crimes tribunals, which focus only on high-level suspects in conflicts that involve multiple levels of actors; and a desire for local ownership in situations where a wide range of external political, social, and economic interventions have constrained domestic agency.
In the last decade, the Great Lakes region, in particular, has witnessed various forms of customary or revived traditional practices designed to deal with questions of mediation, justice, and reconciliation after mass atrocity. Between 1999 and 2004, the Barza Inter-Communautaire in the eastern Democratic Republic of Congo (DRC) assembled the cultural leaders of the nine major ethnic groups in North Kivu to mediate ethnic-based disputes. Over those five years, the Barza ensured there was no major outbreak of violence in its sphere of influence. In Rwanda since 2001, the community-level gacaca jurisdictions became the principal instrument for dealing with the country’s backlog of genocide cases: by the time the courts closed on 18 June 2012, they had prosecuted nearly 400,000 genocide suspects. In 2006, in the midst of the Juba peace talks, a Ugandan parliamentary committee was established to consider whether local, particularly Acholi, rituals could be codified and nationalized, similar to Rwanda’s reform and formalization of the gacaca courts. Not all Ugandan government or civil society advocates of local rituals in the context of serious crimes, however, believed they should be codified and nationalized. Some actors argued that different ethnic groups should employ their specific ritual methods, and that attempts to codify a nationwide system of rituals would suppress much of their cultural specificity and thus undermine their popular legitimacy.
Increasingly in African states, international, national, and community-level transitional justice processes coincide and frequently clash. Advocates of ‘holism’ often support this multi-level approach to transitional justice. Such approaches, however, are typically the product of accident rather than design, with different actors creating different levels of institutions at different times, with little coordination among them. The Great Lakes region, in particular, has become the focus of multi-tiered transitional justice: in the case of Rwanda through the ICTR, the Rwandan national courts, and gacaca; and in the cases of Uganda and the DRC through the ICC, the national military and civilian courts, and a range of community-level accountability and reconciliation mechanisms.
The ICTR and the ICC are founded, respectively, on the principles of ‘stratified-concurrent jurisdiction’ and ‘complementarity’, which assume close coordination with, and respect for, domestic transitional institutions. However, in practice these international institutions have tended to compete with domestic institutions for popular legitimacy and for jurisdiction over particular criminal cases. There has often been bad blood between the ICTR and Rwandan transitional institutions, as exemplified by the issue of RPF crimes discussed above. The concurrent operation of the ICTR, the Rwandan national courts, and gacaca has also on several occasions led to clashes over whether international or domestic bodies have jurisdiction over particular suspects (Gourevitch 1996: A15; Mutagwera 1996: 17–36). In recent years, the ICTR, under pressure from the UN to halt its operations because of the Tribunal’s enormous expense, has nevertheless refused to transfer its residual cases to the Rwandan courts, claiming that the national jurisdictions do not meet international judicial standards and therefore genocide suspects would not receive a fair trial in Rwanda. These developments suggest an antagonistic rather than holistic relationship between international and domestic institutions.
Similarly, there has been little interaction between the ICC and domestic processes in countries such as Uganda and the DRC. Where there has been interaction, it has tended to be competitive. The example of the DRC, where all of the ICC’s operations have so far focused on Ituri province, is salient in this regard. Ituri provided the ICC with a simpler judicial task than other provinces. Of the conflict-affected provinces of the DRC, Ituri has the best-functioning local judiciary, which has already proven adept at investigating serious crimes (Clark 2011). Since July 2003, the European Commission’s (EC) Ituri-centred investment of more than US $40 million towards reforming the Congolese judiciary has seen considerable progress in strengthening local capacity. The EC funded the purchase of new judicial offices and equipment, and provided training and salaries for investigators and magistrates. Since 2003 the UN Organization Mission in the Democratic Republic of the Congo (MONUC) has provided around-the-clock protection to all judges in Bunia, the provincial capital. These developments have contributed greatly to the increased efficiency of the Bunia judiciary.
In 2006 the military tribunal in Bunia prosecuted the case of Chef Mandro Panga Kahwa, a senior member of the UPC and later founder and president of the Parti de l’Unité et la Sauvegarde de l’Intégrité du Congo (PUSIC, Party of Unity to Safeguard the Integrity of Congo). Kahwa, found guilty of crimes against humanity, including the murder of villagers in Zumbe in 2002, was sentenced to 20 years in prison and ordered to compensate 14 of his victims up to $75,000 each (see Trial Watch). Among other serious cases before the Bunia courts, in 2008 the same military tribunal convicted a Congolese army lieutenant and sergeant for the use of rape and threats of violence against civilians in Fataki and Nioka (UN 2008: section 34).
That the Bunia courts have been able to investigate and prosecute such serious cases, involving rebel leaders and senior Congolese military personnel, highlights the substantial increase in domestic judicial capacity since the start of the EC reform programme. It is therefore unclear whether the ICC can adequately justify its involvement in Ituri, given the capacity of domestic institutions to investigate and prosecute major crimes. This has led some observers to question the validity of the ICC’s strategy in Ituri, asking why a global court has focused its energies where the judicial task is more straightforward due to substantial local capacity, while mass atrocities continue in provinces where judicial resources are severely lacking. The domestic impact of the ICC’s interventions in Ituri has been widespread disappointment among local judicial actors that despite the major legal reforms of the last seven years, they will not be able to prosecute major atrocity suspects in local courtrooms. This has important ramifications for the long-term legitimacy and efficacy of the domestic judiciary. It also leads some domestic judicial actors to believe they are receiving mixed messages from the international community, which has invested heavily in legal reform but maintains that such reforms are insufficient to warrant domestic trials of high-profile suspects (Clark 2011).
The examples of the ICTR and ICC highlight that while international transitional justice institutions employ the language of coordination and cooperation, in practice they tend to function unilaterally and often perceive domestic institutions as falling short of global standards of justice. This underscores a key problem for attempts at holistic, multi-level approaches to transitional justice, which require trust among foreign and domestic actors, and clear divisions of jurisdiction. Such issues are exacerbated by the problem of unclear objectives, discussed above, as effective coordination of different institutions first requires an articulation of the purposes of different types of processes. Thus, to date, multi-level transitional justice processes have tended to operate separately rather than systematically.
Conclusion
This chapter has not been an exhaustive analysis of transitional justice in Africa but rather an overview of the key theoretical and policy tensions in this field. Its aim is to highlight the need for greater clarity when identifying and conceptualizing the objectives of transitional justice, determining which types of processes best pursue those aims, and navigating complex politics when international, national, and community-level actors and institutions intersect.
Certain human rights and legal discourses have often hampered transitional justice endeavours in Africa by advocating narrow judicial responses to atrocity and paying insignificant attention to power relations between foreign and domestic agents. For the field of transitional justice to provide meaningful redress to the legacies of conflict and authoritarianism, it must identify more feasible objectives and tailor policy responses more carefully to the specific needs of affected populations. It must also guard against the tendencies of international legal actors toward hubris and detachment from local circumstances, and of domestic governments to instrumentalize transitional processes for their own ends. Thus the grand ambitions of transitional justice may be gradually turned into more tangible benefits for communities affected by atrocity.
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