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Transitional justice and international criminal justice: a fraught relationship?

By Naomi Roht-Arriaza

What is the key, and often fraught, relationship between transitional justice (TJ) and international criminal justice (ICJ)? How, if at all, do the two fields fit together: do they coexist, create synergies, occupy the whole space, or simply inhabit parallel universes? It has long struck me that people focusing on one or another of these fields often don’t engage with the other, or do so in unproductive ways. Several, often conflicting, viewpoints co-exist and tie these fields together with an interplay of broad and narrow, local and global.

For transitional justice practitioners, the 1980s and 90s saw a conception of TJ based, first, on the cardinal importance of trials to combat impunity, reestablish the rule of law, and provide satisfaction to victims. Other TJ measures were pale substitutes for trials. Trials were, therefore, the sine qua non or essential element of transitional justice – without trials everything else was incomplete at best and a sham at worst.

As the independent value of other measures like truth commissions and reparations became clear, international criminal justice was declared a subset of transitional justice. In this view, TJ involves a set of ways of coming to terms with past atrocities, and trials – either international or using international law – are just one. Thus, there is a need for coherence, coordination, integration, and joint planning of different mechanisms. Trials are a necessary but not sufficient condition for transition.

As international criminal justice gained prominence, especially in the context of the beginnings of the International Criminal Court (ICC), transitional justice advocates and practitioners grew concerned that ICJ was taking over the entire TJ space, sucking resources and talent out of other kinds of potential measures. ICJ was an imposition on TJ. Peter Dixon and Chris Tenove argue that ICJ dominates other, more localized, forms of TJ, which lack the ability to mobilize a globalized justice discourse.

As critiques of the ICC’s actions and proposals for grounded, “bottom-up” kinds of transitional justice embedded in cultural practices and norms multiplied, international criminal justice was conceived of in opposition to TJ. Researchers argued that ICJ was not only irrelevant but harmful to overall processes of social reconstruction. The African Union (AU) picked up (genuinely or not) on this critique, casting ICJ efforts as a form of Western neo-colonialism, demonstrated by the ICC’s exclusive focus on Africa.

The Peace Palace in The Hague, Netherlands. The seat of the International Court of Justice. Public domain via Wikimedia Commons.

The opposition between transitional justice and international criminal justice was often framed as one of local versus global dynamics. The global discourses around justice translate differently (and often poorly) in a local space. In a new article, Felix Ndahinda explores the ways in which the ICC prosecution of Jean-Pierre Bemba has adopted a discourse around the “Banyamulenge” that contributes to exacerbating stereotypes and discrimination against Tutsi-related ethnic groups in the region. From the perspective of local political and sectarian dynamics, Michelle Burgis-Kasthala finds that the International Criminal Tribunal was simply one more player, and a politically colored one at that. However, these local-global dynamics are not static: they change over time, as do our evaluations of their outcomes.

From the other end of the looking glass, some international criminal justice practitioners see transitional justice as basically referring to anything done to deal with past crimes or rights violations that does not involve a trial, especially a trial in an international venue. Thus, TJ can be a precursor of ICJ, as when, in the standard narrative, truth commissions should discover the truth, opening political and evidentiary space for subsequent trials. Or, in a variation on this theme, TJ can be an adjunct to ICJ, filling in the gaps and complementing the central role of ICJ. Conversely, international criminal justice, by expanding its purview to encompass areas like reparations and creating a court-generated historical record, can become an alternative to transitional justice. Jens Iverson, for example, posits that the field exhibits doctrinal and practical confusion due to the conflation of three ways of thinking: TJ, ICJ and jus post bellum (JPB).

For some practitioners of international criminal justice, the proper relationship between the two justices is on parallel tracks. The larger transitional justice agenda is, in this view, irrelevant to ICJ. This view also posits that ICJ and TJ are on different timelines, and that the application of ICJ does not depend on the existence or culmination of a transition.

Part of the distance between these two forms of justice has to do with the particularities of international criminal justice that make it different than other forms of transitional justice. For one thing, its adherence to the forms and values of the criminal law. For Kate Cronin-Furman, for example, the criminal law supplies the goals of ICJ, especially the goal of general deterrence. She takes up how general deterrence might work in cases of systemic crime, using studies from criminology and political science regarding the organizational characteristics of insurgents and militaries. In some cases, this view may be a bit myopic. Louise Chappell sees this myopia in considering the operation of the ICC Office of the Prosecutor’s decisions on preliminary investigations and complementarity through the lens of gender.

Finally, central to both international criminal justice and transitional justice discourses is the role of victims/survivors.  However, the two discourses often fall short in practice. Mariana Pena and Gabriela Carayon, for example, find that while there is great potential, the ICC’s victim participation provisions to date have not adequately provided for the needs of victims. They conclude that, as the Assembly of State Parties considers reforming the process, “[l]istening to victims’ concerns and integrating their views in judicial proceedings is indispensable for justice to succeed. Trials in a distant town thousands of miles away will have little relevance for victims and affected communities if they are not adequately recognised as a constituency whose interests are at the heart of the justice process.” Amen, although the “how” to do this remains at best uncertain.

Naomi Roht-Arriaza is Professor of Law at the University of California, Hastings College of Law.  She teaches and writes widely on transitional justice and international criminal law, and is the author of Impunity and Human Rights in International Law and Practice and The Pinochet Effect, and co-author of The International Legal System (6th Ed.).

The International Journal of Transitional Justice has just published a 2013 special issue: The Role of International Criminal Justice in Transitional Justice, which explores the key, and often fraught, relationship between transitional justice and international criminal justice and the changing range of goals, applicability, methods and techniques of both fields.

The International Journal of Transitional Justice publishes high quality, refereed articles in the rapidly growing field of transitional justice; that is the study of those strategies employed by states and international institutions to deal with a legacy of human rights abuses and to effect social reconstruction in the wake of widespread violence.

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