Transitional Justice Discourse

Jus post bellum is emerging as an important component in the just war tradition within post conflict reconstruction and transitional justice processes. Countries that have been involved in intrastate conflicts, such as the Rwandese genocide of 1994 are often characterized by existence of factions with delicate social fault lines. In such complex situations, it is difficult to distinguish with clarity the victims and the perpetrators. For example, the Tutsi who were the main target of the genocide in Rwanda organized through the Rwandan Patriotic Front (RPF) and set out to stop the mass killing but in that process they equally took part in revenge killings targeting the Hutu leading to what Mamdani (2001: 6) refers to as “victims turned killers.”

Post conflict reconstruction, justice and reconciliation within transitional justice spectrum have to contend with the risks involved in such complex scenarios, with the highest danger being a possible relapse into armed conflict and violence. 

Transitional justice is increasingly accepted as an important element of post conflict justice and peacebuilding. Along with the demobilization and disarmament of ex-combatants, security sector reform, rule of law programs, and elections, it has now joined a virtual checklist of initiatives to be carried out in post-conflict countries. According to the United Nations (2010: 2) “transitional justice is the full range of processes and mechanisms associated with a society’s attempt to come to terms with legacies of large scale past human rights abuses, in order to ensure accountability, serve justice and achieve reconciliation.” The notion of transition connotes a fundamental shift in governance. This shift could be from autocracy to democracy; from military rule to civilian rule or from accumulated injustices to democratic stability (UN, 2010: 3). In the post Cold War environment of complex emergencies, transition has come to largely entail ensuring justice in the wake of intrastate conflicts such as ethnic cleansing in Yugoslavia and genocide in Rwanda.

Transitional justice comprises of a full range of initiatives; both judicial and non-judicial. These include: prosecutions for accountability; national dialogue and consultations, the search for truth on what happened who were affected, how and who was responsible in light of healing and reconciliation; delivering reparations and; fostering a change of institutions to ensure non recurrence (Buckley-Zistel et al. 2013). According to the UN (2010: 2), a country may settle on whichever mechanism or combination of mechanisms that suit its situation but whatever combination chosen must operate within international legal obligations.  Post conflict justice and reconciliation processes aim at addressing the past, ensuring justice for the victims, psychosocial repair, physical reconstruction and assurance of non-recurrence of the past painful experiences of human rights violations and any other form of injustices and atrocities. 

The jus post bellum discourse focuses on the fact that human rights law requires accountability in transitions, rooted in the discipline of law. Over time, this focus has been expanded to include a much broader range of mechanisms, goals and inquiries across a multiplicity of disciplines (Hansen, 2010: 2-4). In order to probe the current state of the field, the nature of interconnectedness of the transitional justice discourse and the complexity of violations and atrocities that call for action require a global set of thinking but one that is sensitive to local needs such as the cultural setup of society. Transitional justice discourse, and particularly the complexity of the process within a slow democratizing process in Rwanda is to be viewed within a global theorizing process and local social, political, economic and cultural set up of Rwanda. 

In analyzing the jus post bellum justice and reconciliation in Rwanda after the genocide, there is need to have in mind the political consideration of the country because there is often a “hidden politics to how transitional justice has been constructed as an interdisciplinary field that obscures tensions between the range of practices and goals that it now incorporates in” (Ball, 2011: 1). The existing gaps both in the concept and practice of transitional justice provides a good breeding ground for manipulation of transitional justice mechanisms for political ends. For instance the preference of the Gacaca over the ICTR by the government should not be evaluated outside the Rwandese current political order. For instance, Human Rights Watch Report (2014), indicates that little has been done to bring to justice the perpetrators of violence through a revenge mission carried out by the Tutsi dominated RPF led by current president Paul Kagame.

The post-Cold War world of complex emergencies has seen intrastate conflicts evolve as a major threat to state formation and peacebuilding in the world and Africa in particular. In a bid to respond to legacies of abuses, put a break with the past and create or recreate strong democratic nations (Buckley-Zistel and Zolkos, 2012: 3), most countries in Africa, such Rwanda, have adopted transitional justice mechanisms such as truth telling, reparations and prosecutions but as Rigby (2001) argues such mechanisms have not led to sustainable and peaceful nations yet. For instance citing truth telling in South Africa, Rigby (2001: 126) holds that “the TRC traded justice for peace since some perpetrators were persuaded to say the truth after being assured of amnesty.” There is a similar narrative in regard to the Sierra Leonean TRC in reference to which Schabas (2004: 363) argues that “in the absence of strong ritual inducement it lacked deep roots in the local cultures of Sierra Leone thus many people did not see the need to testify before the TRC.” It therefore means that a lot needs to be done in this sphere to ensure that transitional justice processes lead to actual transformation, reconstruction, justice, healing and reconciliation.