Last Wednesday, International Criminal Justice Day marked the 15th anniversary of the Rome Statute and celebrated the International Criminal Court’s role in confronting some of the world’s worst human rights abuses. The ICC’s focus is exclusively prosecutorial, such as trying and sentencing war criminals, but it hasn’t been a help to Syrians entrenched in violent conflict. The Court’s inaction in the face of tragedy has disillusioned many people about the potential effectiveness of accountability efforts in Syria. Unfortunately, such skepticism has touched on transitional justice for some of the same, and for some very different, reasons. But transitional justice is quite different from the ICC, and transitional justice mechanisms are consciously adapted to address potential difficulties.
Critiques of transitional justice have typically come from two, often opposing, viewpoints. The first criticism casts transitional justice as an internationalist idea whereby countries are made to import and apply foreign legal ideas and forms of justice. In this line of thinking, transitional justice is seen as an imposition of (often western) norms and authority that coerce a country and, at worst, violate its sovereignty. With every country enjoying its unique legal traditions and norms of justice, why should outsiders seek to direct things, critics ask. The ICC, with its authority to arrest and try defendants, is more frequently a target of this line of thinking.
This critique would be understandable, if transitional justice efforts were undertaken unilaterally by elites alone. But these processes and the best practices that underpin them are typically designed domestically with local ownership and broad-based legitimacy as starting points. Truth commissions, for instance, can take account of a range of views and people from within a country. This includes the convening of local meetings often led by well-respected community figures in an effort to encourage greater participation. The actual structures and mechanisms of transitional justice are managed by, and tailored to, the country itself– not imposed from outside. In Morocco, the Equity and Reconciliation Commission took the step of instituting a communal reparations program. In Chile, the National Truth and Reconciliation Commission decided that reparations should come in a variety of forms, including health care, pensions, and education.
The second critique, quite oppositely, asserts that most post-conflict processes will fall victim to “victor’s justice”, meaning that politically or economically powerful domestic groups impose their will on others. This is a real concern and deserves attention. The emerging political environment will necessarily influence events, but transitional justice processes aim to empower independent bodies that challenge immunity while promoting domestic peace. With their emphasis on accountability and memorialization, such mechanisms put emphasis on evidence and truth as well as healing, thus reducing the danger of divisive identitarian politics. Transitional justice won’t solve the problems of post-conflict political and social competition, but few other approaches so deliberately commit to accountability and harmony.
International Criminal Justice Day should be recognized for its contribution to fighting immunity and developing international norms of human rights. But accountability needn’t come from outside a country. Transitional justice offers domestic mechanisms for communities to come together, deal effectively with the past, and move forward.
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