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Challenges facing outside actors within transitional justice

By: Saeed KakeyiApril 13, 2008

AbstractSince the early 1980s, outside actors—whether states, international or transnational institutions and organizations—have been helping states in times of transition to democracy using various transitional justice mechanisms to account for the past wrong-doings and build a democratic state. Mechanisms such as trials, truth commissions, amnesty laws, reparations, lustration, museums and memorial sites, have been employed either single-handedly or in a combined form to address past vicious crimes and gross human rights violations. Within these democratic nation/state building processes, international actors have been facing various challenges in their attempts to strike a reasonable balance between punitive and reconciliatory measures.

This paper tries to address some of the main challenges facing the international or outside actors that have become the rule rather than the exception following inter-and intrastate conflicts in the post-Cold War era. Thereafter, the author of this paper will explain which division of labor among outside actors is likely to prove most effective in meeting such challenges in the future.

IntroductionTransitional justice in recent years has become a “norm” for more and more nations/states in their transitional path to democracy. However, transitional justice, since its emergence, has encountered many challenges. In particular, these challenges do relate to the goals of transitional justice. Achieving these goals can be fraught with difficulties such as identifying victims, deciding whether to punish superiors or middle agents, avoiding a "victor’s justice", and finding satisfactory resources for compensation, trial, or institutional reform. Also, the transitional period may only result in a questionable peace or fragile democracy. As noted in the discourse on transition to democracy, the difficulty has always been for new governments to promote accountability for past abuses without risking a smooth transition to democracy. In addition, existing judicial system might be weak, corrupt, or ineffective and in fact make achieving any viable justice difficult.

The enormity of these transitional nation/state building tasks in post-Cold War era forces the domestic actors to look for help and needed support of the outside actors. Domestic and outside actors stand to gain from a well functioning relationship. Domestic actors have a harder time building peace without the support of outside actors; and outside actors cannot engage in reconciliation and peace-building in fragmented nations or states without the legitimacy that only domestic actors can confer on their actions.

Challenges facing outside actorsLegitimacy, both in its domestic and international conceptual framework, is a critical challenge facing outside actors in their reconciliation endeavors. Without “sufficient acceptance by former enemies of the legitimacy of post-war rule of law” (Ramsbotham et al.: 2005, 236), outside actors may not properly be able to provide enough help for structuring a badly needed domestic restorative justice. Similarly, without internationally mandated

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legitimate foundation, outside actors may come under unavoidable criticism, either from the contending domestic actors or from other international actors restraining from participations without a legitimate mandate sanctioned by the United Nations’ (UN) Charter.

After the end of the Cold War, with the horrors in the former Yugoslavia and Rwanda freshly in mind, the UN in its take on to restore order and peace, created international criminal courts. To prosecute alleged perpetrators of genocide, war crimes and crimes against humanity, the UN Security Council created two ad hoc international criminal tribunals, the International Criminal Tribunal for the former Yugoslavia (ICTY) in 1993 and the International Criminal Tribunal for Rwanda (ICTR) in 1994 (Dicker and Keppler: 2004, 1).

With that in mind, one should not ignore the complex makeup of the outside actors—nation-states, international nongovernmental organization, transnational corporations, academics and their worldwide centers—which challenges the legitimacy of the outside actors (Dickinson: 2003, 303). For example, the ICTY appears to “face greater obstacles in establishing local legitimacy in the places from which the accused perpetrators come than they do in establishing legitimacy within broader international communities” (Dickinson: 2003, 303).

More often than not, such legitimacy challenges closely bounded by cultural indifferences between both, inside and outside actors. What it may seem legitimate for outside actors, may not be the same for inside actors. In explaining his “perceived legitimacy” term, Dickinson shows the cultural legitimacy contestation by stating that “various national communities may focus on very different factors in assessing a court's legitimacy, and these factors might, in turn, be different from those that underpin legitimacy in the eyes of various international communities standing outside a country and judging its legal process” (Dickinson: 2003, 301).

It is inequitable, however, to deny the successes of outside actors in holding some perpetrators of crimes in the former Yugoslavia and Rwanda accountable. Although financially expensive and time-consuming, the ICTY “has played a critical role in advancing the cause of justice in the former Yugoslavia” (Freeman: 2004, 2). Also, the ICTY has been able to maintain its pledge to balanced judicial objectivity while retaining qualified staff in the face of competition from other local and international courts (Freeman: 2004, 4). Similar successes did occur with ICTR in Rwanda. In 2002, the Security Council increased the capacity of the Rwandan tribunal by amending the ICTR Statute “to permit ad litem judges to serve in trial chambers” (Dicker and Keppler: 2004, 2). It is worth mentioning that these successes have contributed to the legitimacy of the ad hoc tribunals in the eyes of inside actors who are susceptible to the new culture of globalization. Yet, culture has always been influenced by political factors, especially in times of transitions to democracy.

The global political culture in the post-Cold War era reflects the increasing nature of intrastate conflicts in which human rights are routinely violated. In turn, this factor indicates that the relationship between peace and justice is becoming a complicated one (Ramsbotham et al: 2005, 241); therefore, “a significant increase in the judicialization of world politics both regionally and internationally” cannot be denied (Sikkink and Walling: 2005, 3). The diversity of this “judicialization” process—domestic, traditional, foreign, international and third generational hybrid trails—poses some critical “political constraints or contextual challenges [that] cannot necessarily be averted” (Hayner: 1994, 636). In fact, it is shaping a new norm in the history of human rights trials. According to Gray Bass, “there is no way of determining what will be done to accused war criminals without reference to ideas drawn

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from domestic politics” (cited in Sikkink and Walling: 2005, 22). Insofar, exploring new ideas and morns may reduce the “capacity-building problems” and increases the venues for cooperation between the domestic and the international judicial bodies (Dickinson: 2003, 304). Moreover, diversifying ideas and norms will strengthen the accountability measures in striking a balance between punitive and reconciliatory mechanisms and may lead to a “substantive norms criminalizing mass atrocities in transitional countries” (Dickinson: 2003, 305).

In sum, cooperation and diversification of ideas and norms may lead to develop domestic justice systems that are critically important for the transitional process. In countries where there is no justice or where there is only unequal access to justice, violent conflict is likely to reemerge. Outside actors can help domestic actors to improve the justice system in four main areas: reorganization, recruitment and training, infrastructure and access to justice.

The division of labor and the task of reconciliationThe way in the direction of reconciliation is neither linear nor short, because dealing positively with the past means engaging in a process that may always be conflict-ridden. Tension resides in how best to address these conflicting interests, because the desire for justice and accountability can be paradoxical to the call for reconciliation and forgiveness (JICA: 2006, xxxv).

As literature in the field show, an acknowledgment of the grievances of victims might be the first goal. Therefore, the need for addressing the past constructively has resulted in several transitional justice measures to approach to restore the social structure from the point of view of accountability and responsibility.

In turn, these measures put heavy stress on cooperation and division of labor. The reintegration process, designed to facilitate development with an equitable peace, requires the support of all main domestic, regional and international actors in a program of national reconciliation. Coordination is essential among the domestic as well as outside actors. It is also important to develop institutional capacity which will help to mobilize the available administrative staffing and sources of information to enable the judicial capacity-building measures to be carried out within an integrated framework for greater impact (Dickinson: 2003, 303-5; Ducci: 1998, 3). For example, outside actors may engage helping domestic judicial systems with: specific legal and technical advice, training of judges, attorneys and police officers, supporting structures that help make the justice system more accessible, and providing funding for the establishment of tribunals or other offices (JICA: 2006, 159).

ConclusionThis paper has some the main challenges facing outside actors in their attempts to strike a reasonable balance between punitive and reconciliatory measures. It has argued that in the age of globalization, cooperation and diversification of ideas and norms may lead to develop domestic justice systems that are critically important for transitional justice. Also, this paper has explained the importance of cooperation for the judicial division of labor to provide effective reconciliation measures.

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Reference:

Decker, Richard and Keppler, Elis (World Report 2004). Beyond the Hague: The Challenges of International. Retrieved April 09, 2008, from http://hrw.org/wr2k4/10.htm

Dickinson, Laura A. (April, 2003). The Promise of Hybrid Courts. The American Journal of International Law, Vol. 97, No. 2, pp. 295-310.

Ducci, Maria (1998). Guidelines for Employment and Skills Training in Conflict-Affected Countries. Geneva: International Labour Office (ILO).

Freeman, Mark (October, 2004). Bosnia and Herzegovina: Selected Developments in Transitional Justice. International Center for Transitional Justice, 1-13. Retrieved Apri 04, 2008, from www.ictj.org

Handbook for Transition Assistance (2006). Tokyo: Japan International Cooperation Agency (JICA).Ramsbotham, Oliver, et al. (2005). Contemporary Conflict Resolution, (2nd Ed.). Cambridge, Polity

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Sikkink, Kathryn and Walling, Carrie Booth (2005). Errors about Trials: The Political Reality of the Justice Cascade and Its Impact. Retrieved April, 09, 2008, from http://wage.wisc.edu/uploads/Events/GGI/APSA%202005%20final%20copy-Sikkink.pdf