Author: Emily Harrison, L5 Atrocities and Transitional Justice
Transitional justice is defined as the range of methods proposed to assist in the transformation of a society and the reparation of damage caused by mass atrocities and past human rights abuses, to promote peace, democracy and prevent the occurrence of similar violations in the future (Bickford, 2004). Some examples of the objectives of transitional justice are to create ‘a valuable record of past human rights abuses, setting up a functional, professional bureaucracy and civil service, helping victims reconstruct and repair their lives, and stopping violence and consolidating stability’ (Eisikovits, 2014: 1). There is a multitude of different measures that can be utilised after the occurrence of a mass atrocity, all of which have both similarities and differences and can serve many purposes, such as trials, lustration and vetting, amnesties, and reparation. However, for the purpose of this essay, the focus of discussion will be on truth commissions and restorative justice. Truth commissions are considered to be one of the most noteworthy developments in the field of human rights abuse and there is a huge body of research both debating and praising their merits (Brahm, 2009). Restorative justice has also been encouraged over the past decade as a method that victims, societies and communities feel is a more appropriate approach to justice than those used previously (Johnstone, 2002) and is being utilised more frequently within situations where mass atrocities and human rights abuses have occurred (Clamp, 2016). Assessment of the strengths and weaknesses of transitional justice measures and inter-measure comparison, which will be the focus of this essay, is an important topic of discussion, as it allows the reader to evaluate their use and engage in debate surrounding the success of specific measures, whilst highlighting elements for future improvement. This essay will introduce what is meant by both truth commissions and restorative justice, whilst providing examples of their use as responses to past atrocities. It will then go on to outline the strengths and weaknesses of each measure and discuss their similarities and differences, before concluding which of the two is favourable (if any) and making some suggestions for the future.
What is a Truth Commission?
Pricilla Hayner (2002), who has produced some of the most profound written works in this field, defines truth commissions as provisional, state authorised investigations that aim to examine past events and collect information about the feelings and experiences of directly impacted citizens. Truth commissions also have multiple, established objectives; to attend to victims’ requirements, to address individual and institutional accountability, to recognise former abuses officially, to encourage reconciliation, to suggest reforms, to go against exemption from punishment and to diminish disagreements about the past (Hayner, 2002). Truth commissions have been used after many mass atrocities, with the aim to assist the affected population in healing and engaging in reconciliation after the horrific events they have experienced. One of the most recognized examples of the utilisation of this method is the South African Truth and Reconciliation Commission (TRC), which was established after the South African apartheid in 1995 and set up by the National Unity and Reconciliation Act (Eisikovits, 2014). The TRC was controversial as it presented the opportunity of amnesty to perpetrators if they agreed to reveal the truth and account for their actions, which therefore provoked mixed reactions from the affected population (Eisikovits, 2014). Other examples of countries that have used truth commissions after gross human rights violations are Chile (1990-1991), Uruguay (1985), Bolivia (1982-1984) and Argentina (1983-1984) (Allan & Allan, 2000), some of which will be discussed in more detail later in the essay.
Strengths of Truth Commissions
Truth commissions have had positive impacts on societies after mass atrocities, thus accounting for multiple strengths of this measure. One of such strengths is their ability to propose recommendations and reforms for the future, to provide help to victims who are suffering and ensure that future atrocities can be prevented. For example, Chile’s ‘Rettig Commission’, which took place in 1990 after Pinochet’s military dictatorship ended and aimed to expose the brutalities of his regime, recommended the National Corporation for Reparation and Conciliation (Chavez-Segura, 2015: 228). This promised to financially assist victims and the families of those who had been identified in the report (Chavez-Segura, 2015). This shows that recommendations stated in truth commissions can become reality, and therefore make an actual difference to victims’ lives. The Chilean National Truth and Reconciliation Report also stated that ‘only upon a foundation of truth is it possible to meet the demands of justice and create the necessary conditions for achieving national reconciliation’ (Ensalaco, 1994:658). This suggests that the main aim of truth commissions, to uncover facts about the past, is an essential element assisting towards a society’s transition from violence to democracy. Truth commissions also officially acknowledge the suffering of victims and their families, which can contribute towards societal healing, as well as having positive psychological effects on those whose stories had not previously been recognised (Vasallo, 2002). This assists in maintaining harmony within affected societies, as victims can acknowledge that other parties care about how they are feeling. Truth commissions can guide victims towards forgiveness and allow them to move on from their past, which was the case in South Africa, as victims stated that uncovering details about what had happened and assigning responsibility to perpetrators brought them peace (Hayner, 2002). Through their direct involvement with affected societies after atrocities, truth commissions assist in the establishment of a human rights related culture and help to re-build citizens’ trust in their government and other political institutions (Brahm, 2007). Having trust in the government is an essential aspect that contributes towards maintaining peace in post conflict communities, as civilians need to feel as though they can rely on higher powers to ensure that similar events do not occur again in the future. A further advantage of truth commissions is their availability to be established swiftly without becoming a monetary burden, while also having the ability to flexibly adjust to the specific country’s requirements and objectives (Vasallo, 2003). Any measure put in place after the occurrence of a mass atrocity must be able to adapt to assist different countries in the most valuable way possible, as different countries suffer through very different experiences and therefore require a response that best suits their needs, which is why truth commissions are often a preferred option.
Weaknesses of Truth Commissions
One of the main issues with truth commissions is their inability to achieve reconciliation across entire affected populations. Individuals are likely to react in different ways to the truth, therefore, the achievement of forgiveness and reconciliation is more likely to work on an interpersonal level than an intergroup level (Chapman, 2007). The South African TRC acknowledged this issue, highlighting the problematic nature of understanding the definition of reconciliation on a national scale (Chapman, 2007). Therefore, only some of the affected population are likely to appreciate the use of a truth commission. This issue is also prominent from a psychological perspective, as learning details about past abuses may re-traumatise victims, having a counterproductive effect (Mendeloff, 2009). For example, after the South African TRC, those who had testified experienced many different psychological symptoms, including post-traumatic stress disorder and heightened anger- for which very little support was available to them (Hamber, 1998). Thus, the option to forget the past may be preferable to some, as opposed to discussing in detail the horrific events they were forced to go through. Lack of prolonged support was also an issue after the Chilean National Truth and Reconciliation Commission; although the National Corporation for Reparation and Reconciliation was able to provide monetary compensation for victims who had been named in the report, the identification of victims was limited to those who had died or were missing (Popkin & Roht-Arriaza, 1995). Therefore, the commission could not compensate the multiplicity of victims who were not named, including those who had been tortured, due to lack of allotted time (Popkin & Roht-Arriaza, 1995). This again proves that truth commissions do not have the capacity to provide support to entire societies. A particularly profound problem surrounding the use of truth commissions is the truth versus justice debate, which was highlighted in the South African TRC (Rotberg & Thompson, 2000). The issue here is that amnesty was granted to those who provided information for the TRC, which proposed a moral dilemma and sacrificed justice for truth (Rotberg & Thompson, 2000). Granting amnesty to those who have committed human rights violations is likely to be problematic for their victims, as justice is not being served. Rotberg and Thompson (2000) also highlight the fact that the past cannot be told through one story alone as every individual has their own opinion, therefore, whatever ‘truth’ the commission uncovers will always be contested. Such debates may cause further animosity within a society, meaning truth commissions can have the opposite of their intended effect, which is to bring communities together.
What is Restorative Justice?
Restorative justice has been described as the promotion of peace and reparation of social connections, through enhanced communications between victims and their perpetrators (Minow, 1998). This method of justice offers an alternative to retributive practices, challenging conventional justice methods and focussing predominantly on repairing the harm resultant of perpetrators actions through the acknowledgement of their wrongdoings. Restorative justice can also be utilised as a method of involving individuals who have previously felt isolated from participating in legal procedures, which can potentially help with the collective healing of societies (Doak, 2012). Some other principles associated with restorative justice are addressing victims’ needs, the reintegration of those who have admitted accountability back into society, and to give the responsibility of resolving harm to the perpetrators and their victims (Walker, 2006). For many, the first appearance of restorative justice in a transitional context was the South African TRC (despite also being defined as a truth commission), as it was introduced as its guiding conception (Walker, 2006), however it has been used in many locations since, including Rwanda, Northern Ireland (Doak, 2012) and Basque (Zernova, 2019). There are many different forms of restorative justice, such as community groups and victim-offender mediation programmes, both of which have been utilised after mass atrocities. For example, Northern Ireland engaged in community-based restorative justice after other criminal justice methods were unsuccessful in controlling the violence caused by political and civil unrest in the 1960s (Chapman, 2012). Other examples of mass atrocities that have used restorative justice practices will be detailed later in the essay.
Strengths of Restorative Justice
Restorative justice has been described as a ‘catalyst for transitional justice’ as it establishes newfound bonds within communities and reinforces pre-existing bonds (Doak, 2012:305), which highlights one of its many strengths. This can be helpful in sustaining peace in post conflict societies. Arguably, the most recognised strength of restorative justice is its ability to provide a non-violent opportunity for adversaries to communicate and engage with each other (Zernova, 2019), which is unique to this method. Such communications facilitate a bottom-up procedure of uncovering truth and justice, which allows both victims and perpetrators the responsibility of engaging in the restorative process (Walker, 2006). For example, after around 50 years of violent political conflict between Basque and the Spanish state on behalf of the separatist organisation ETA, their government initiated the process of restorative justice (Zernova, 2019). Those imprisoned for terrorism related crimes after the violence that occurred in Spain, were required to engage in a process of self-reformation, assist authorities in prosecuting others, provide monetary compensation and apologise to victims through victim-offender mediation (Zernova, 2019). This also allowed victims to ask any questions they may have had, to which perpetrators could answer honestly, while both parties expressed their emotions through free communication. This ultimately helped to bridge the gap between two conflicting sides (Zernova, 2019). Restorative processes can be especially valued in circumstances where governmental and political actors have not shown interest in establishing other formal procedures to cope with past atrocities, which was also the case in Basque, as informal restorative practices were established when the Spanish government rejected the idea of a truth commission (Zernova, 2019). This shows that restorative practices do not have to be enforced by the government, allowing civilians to take justice into their own hands when it is needed. Restorative justice can also be beneficial for perpetrators after mass atrocities, as their engagement can guide them towards feelings of remorse and regret, which can deter them from re-offending (Johnstone, 2008). Perpetrators are also much less likely to feel alienated throughout restorative processes, while victims’ demands can still be satisfied, and communities can gain confidence in their ability to cope with challenging situations (Johnstone, 2008). Thus, such methods can work well for all parties involved, rather than victims alone.
Weaknesses of Restorative Justice
Despite being successful in many ways, restorative justice does have weaker elements, which have been identified within other written works. One critique that has been discussed by multiple scholars, is the question of restorative justice’s ability to address the wider political context when dealing with mass atrocities, rather than dealing with incidents of violence on an individual basis (Zernova, 2019). Harry Mika (1992) referred to this issue as ‘astuctural bias’. What Mika (1992) means by this is that it is the wider social context that most often leads to conflict within societies, however current informal processes do not address such factors. Thus, when applied in transitional settings, it is questionable whether restorative justice can establish significant changes as the bigger picture often remains unrevealed. This has also been discussed in terms of the definitional development of restorative justice as a concept, as it has been argued that more research needs to be conducted into the definitions of such processes before they can be applied successfully in transitional settings, as current practices are not refined enough to expand from stable communities to those in conflict (Clamp & Doak, 2012). Perhaps the most salient critique is the question of whether justice can be properly achieved through restorative means. Restorative practices lack any means of formal punishment, which could be problematic from the perspective of victims, as it may be challenging to convince them punitive measures are less appropriate than restorative ones (Johnstone, 2002). This is particularly difficult in transitional settings, as victims have often suffered brutal, violent human rights abuses, therefore punitive punishment may be the only form of justice that they deem appropriate. This has also been emphasised by Ashworth (1986) who highlighted that some crimes are so severe and have such an impact that no level of reparation or compensation would have the capacity to resolve them. For example, after the Rwandan mass genocide occurred during the civil war in 1994, caused by conflict between the Hutus and the Tutsis, restorative processes (such as the gacaca trials) were established (Kanyangara et al, 2007). However, it has been stated that such restorative practices in Rwanda still involved public shaming and corporal punishment (Baker, 2007), suggesting that restorative measures alone were not sufficient in accomplishing justice, and that victims, their communities, and higher powers felt that punishment was necessary. It is also worth taking into consideration, that restorative processes may not have the capacity to address social and economic inequalities, such as marginalization and poverty, which can be heightened within post-conflict societies and may have had an impact on the initial causes of the conflict, as such practices only focus on arguments between those directly affected (Zernova, 2016). This often leaves important issues and the root causes of conflict unresolved.
Similarities between Truth Commissions and Restorative Justice
There are many obvious similarities between truth commissions and restorative justice, mainly identifiable through the aims and objectives of the two measures. Some of the main aims of both measures is to hold perpetrators to account for their wrongdoings and establish the truth, which ultimately assists victims in coming to terms with their past. For example, it has been stated that Argentina’s 1984 truth commission (Nunca Mas), which occurred after the mass torture and violence initiated by the military government, helped multiple democratizing states move towards holding offenders to account for human rights violations (Sikkink, 2008). Accountability has also been considered one of the main values of restorative justice in transitional contexts (Clamp & Doak, 2012) which is identifiable in the case of Rwanda as their gacaca courts deemed many leaders and other individuals accountable for mass genocide (Saul, 2012). Both truth commissions and restorative justice also help victims to feel as though their voices have been heard, and that they have been included in the justice process due to their participatory elements (Doak, 2012). In the transitional justice arena, some established objectives of restorative justice are to achieve reparation, reconciliation and thus resolve conflict (Clamp & Doak, 2012), which truth commissions also strive towards (Hayner, 2002). Thus, it is clear that these measures have a multiplicity of elements in common, solely through what they strive towards achieving after the occurrence of mass atrocities and violations of human rights.
What is also identifiable as a similarity between truth commissions and restorative justice, is that neither measure is concerned with the punishment of perpetrators; they prioritise other elements such as forgiveness and uncovering the truth. This particular aspect has been critiqued with reference to both truth commissions and restorative justice. For example, Allen (1999) highlights that while the ideals of peace and reconciliation are important, it is questionable whether they should be prioritised over achieving justice. This issue is also discussed by Llewellyn (2011) however, she is in disagreement with this critique as she believes that truth commissions are in fact committed to achieving justice in a different way to those focussed on punishment, and that they are capable of being enforced as mechanisms of restorative justice. This highlights that although these measures both attempt to achieve justice through unconventional means, they cannot be completely dismissed as being capable of achieving justice of any kind, with their similarities potentially meaning that both measures can be used to complement one another. Thus, whether in agreement with Allen (1999) or Llewellyn (2011), it is evident that restorative justice and truth commissions are undeniably alike in this aspect. Another difficulty that affects both measures is their requirement that both victims and perpetrators must participate in their processes. In transitional justice processes, it is important that perpetrators cooperate in order to improve legitimacy, reconciliate and gather accurate historical narratives (Zvobgo, 2019). However, attaining cooperation from both parties can be challenging, as perpetrators may see themselves as victims, be wary of being identified as an ‘other’, and victims may be afraid of re-traumatisation (Zvobgo, 2019). Zvobgo (2019) refers only to truth commissions, however the same difficulties are identifiable in restorative justice processes.
Differences between Truth Commissions and Restorative Justice
One of the most salient differences between truth commissions and restorative justice, is that restorative justice provides the opportunity for victims and perpetrators to converse and communicate directly with one another, whereas truth commissions do not. For example, the South African Truth and Reconciliation Commission did not require repentance or apology from its perpetrators, it instead guaranteed amnesty to those who participated (Allias, 2012). Apology, despite truth commissions being referred to as a mechanism of restorative justice (Llewellyn, 2011), has been emphasised as a highly important element of restorative justice and is always encouraged by advocates (Dhami, 2012). Providing adversaries with the opportunity to communicate with one another also allows perpetrators to repent for their wrongdoings face to face, which is not made possible by truth commissions. This difference can also be emphasised by the values that have been assigned to restorative justice, as at its core, it aims to ‘restore relationships’ between adversaries or between perpetrators and their communities through direct contact, after such relationships have been destroyed (Walker, 2006: 383), which is not a focus of truth commissions.
Another element of restorative justice which differs from truth commissions is its aim to empower victims, perpetrators, and their communities by enabling them to take justice into their own hands and resolve conflict of their own accord, allowing them to come to their own conclusions (Johnstone, 2002). Whereas, truth commissions are formal bodies, established by the government to gather information on past abuses (Teitel, 2003), which, although involving the participation of victims and perpetrators, does not empower adversaries by enabling them to resolve issues themselves. However, some problems have arisen from the direct involvement of victims, perpetrators and communities in resolving their own conflict. For instance, Johnstone (2002) highlights that it is difficult to eliminate prejudice and stereotyping from within communities, which may cause further conflict during victim-offender mediation, therefore, the advantage of outside parties dealing with conflict without the influence of prejudice is lost. Some may also consider that putting justice in the hands of civilians rather than professional bodies is problematic, as they may find it difficult to see past their emotions and suggest appropriate further actions due to having little experience in the field of justice. This highlights a difference between the two measures, as truth commissions are controlled and implemented by outside parties whereas restorative justice, specifically victim-offender mediation, is left almost completely in the hands of victims and perpetrators. Ultimately, the restorative justice paradigm is much broader than that of truth commissions, as restorative justice has been described as a model of justice in its own right; as a movement and new way of thinking within the field of criminal justice (Van Ness et al, 2001). Whereas truth commissions are referred to as mechanisms of transitional justice (Brahm, 2009), making them a practice within the wider paradigm of transitional justice. This emphasises a significant difference between the two measures.
It is clear that both truth commissions and restorative justice have their strengths, however they also have weaker elements that have been discussed within this essay and highlighted by scholars in the field of transitional justice. They have also been recognised as being similar in some ways and different in others. There are some weaknesses that can be identified across the two measures, which have been discussed both on an individual basis and as similarities between them, such as the question of whether justice can be fully achieved without the involvement of any kind of formal punishment (Rotberg & Thompson, 2000) (Allen, 1999). This is a difficult question to consider, as punitive justice has also been highly criticised, with restorative measures being favoured (Neeley & Deegan, 2005). Despite this critique, it is also worth taking into consideration the difficulties that come with the lack of punitive practices, as highlighted in this essay. Examples of the use of these transitional justice measures have clearly highlighted their strengths, weaknesses, similarities and differences. For instance, the South African TRC has assisted in emphasizing the controversies surrounding truth versus justice (Rotberg & Thompson, 2000), truth commissions’ ability to bring peace (Hayner, 2002), the issue of a truth commissions inability to help entire affected populations (Chapman, 2007) and the issue of re-traumatisation (Hamber, 1998).
The evaluation of truth commissions and restorative justice has emphasised that using transitional justice measures and healing societies affected by mass atrocities is a demanding task, and that attempting to achieve all predetermined objectives in such situations will always be difficult. There are many identifiable strengths of both measures, which makes it challenging to decipher which of the two is favourable for use in transitional settings. In stating this, the vast amount of weaknesses and difficulties with truth commissions and restorative justice make this decision equally problematic. Thus, perhaps it should be considered whether either measure should be used independently, or whether they would perform best when utilised alongside another measure such as trials, in order to achieve a more successful outcome (Olsen, Payne & Reiter, 2010). Using a combination of measures in the future may assist in eliminating some of the weaknesses and heightening the strengths discussed in this essay, whist satisfying victims, perpetrators and affected societies to a more adequate extent.
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