Transitional justice is one of the most important new concepts in peacebuilding to emerge over the last 15 years. But in its creation, the international legal community has done us, and itself, a serious injustice. In establishing transitional justice, it did so at the expense of the equally important concept of reconciliation, and in the process it over-extended transitional justice beyond its means. Reconciliation and justice, perversely, came to be seen in competition or opposition to each other, and in this falsely created zero-sum fight, justice won. We urgently need to rehabilitate reconciliation in this relationship.
That is because all the key ingredients of dealing with the past – retribution, reparation, restoration, acknowledgement, accountability, making amends, ending impunity, guaranteeing non-recurrence – came to rely almost exclusively on justice. Transitional justice, to be exact. Reconciliation was relegated to a side-issue, or a minor follow-on, once justice had been completed. More, it was sidelined to something vaguely emotional or interpersonal – something rather too idealistic – that might be the feel-good business of community leaders or cultural leaders, but was probably not a priority for politicians and national leaders to bother with. Instead, transitional justice would bring all that was required to deal with the past and move into the future.
But transitional justice became over-used. First, it was narrowed down to a process that dealt with past misdeeds only, and prioritised offenders over victims, offences over suffering, punishment over acknowledgement. While transitional justice claimed to include Truth and Reconciliation Commissions as ‘non-judicial’ ingredients of its process, in fact non-judicial elements rapidly became minor outliers to a heavily court-based retributive process. In all the tribunals, hearings and legal proceedings, victims took second place to judges, defendants, counsel and due process.
Second, the ‘transition’ dimension of this retributive justice began to disappear, as punishment for past wrongs became an end in itself for the international community. Transition, it seemed, took us only from the past to the present, and ignored the future.
Third, beyond the justice meted out to address these past actions, within transitional justice little or no attention was paid to the reform and re-design of justice structures for the future: justice to address structural violence, justice to guarantee fairness, justice which would ensure that citizens would buy in to the new society offered at the end of the transition. Or, if such attention was paid (in the shape of constitutional reform, legal reform, judicial reform, security sector reform, and so on), it was disconnected from the transitional past-oriented justice, and seen as separate. But the prospect of a fair future is essential to an effective transition into that future. Justice for the past and for the future would both be strengthened by being properly linked together in the transitional process.