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.
Transitional Justice Discourse
Reviewed by Ibrahim Magara
on
May 11, 2016
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