Justice in Wrecked Communities
Are truth commissions preferable to war crimes tribunals in establishing the
basis for a sustainable peace in post-conflict societies?
The proliferation of intra-state globalised wars after the end of Cold War (Kaldor,
1999) and the great importance attributed to the promotion of a culture based on
human rights (HR) and democratic values, created the basis for the spread of
transitional justice (TJ) operations- the struggles of a society to face a legacy of large-
scale abuses to achieve accountability, justice and reconciliation (Aucoin, 2007). This
essay evaluates the positive outcomes of two different TJ approaches, namely the
retributive and the restorative models. The topic constitutes one of the most
problematic aspects of the relationship between conflict, security and development in
war-afflicted countries. Hence, it concerns the shift from humanitarian towards peace-
building operations, increasingly pursued since the 1990s in ‘internationalized
territories’ to reduce the threat of relapse into violent conflict, create a durable
political settlement and a viable state (Caplan, 2005:28). This paper explores the role
of justice in peace-building and focuses on a critical dilemma: to what extent the need
for democratic peace and stability in the present and future can be reconciled with the
moral imperative of truth and justice in the past? Challengingly, in the aftermath of a
conflict, powerful actors shape the pre-existing relationships of force in state
institutions and economic inequalities (Foucault, 1975; Doyle, 1986). Hence,
designations of post-conflict ‘peace’ will fundamentally depend on the political forces
affecting a certain country. First, this paper examines the relationship between TJ and
peace-building processes. Second, it analyses the long-term effects on the peace
process achievable through the work of war crimes tribunals, on the one hand, and
truth commissions (TCs), on the other. Third, it argues that TCs are not preferable to
criminal courts in the pursuit of sustainable peace. However, the establishment of
such non-judicial bodies, in interrelation with criminal courts, is desirable to address
victims’ needs more directly and to face larger patterns of abuses. Finally, it claims
that any TJ mechanism alone can foster a long-term peace within a society previously
vexed by massive atrocities. It is rather the combination of such apparatuses, within a
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more holistic approach, that may succeed in achieving constructive steps forward in
the development of this purpose.
The definition of the best means required to achieve a determined goal, certainly
depends on the delineation of the goal itself. For this reason, before engaging in an
examination of which TJ mechanism better answers to the necessities of post-conflict
societies, an explanation of the concept of ‘sustainable peace’ is essential. There is no
universally accepted definition of sustainable peace. While the adjective ‘sustainable’
commonly indicates the ‘ability to be maintained at a certain rate or level’ (Oxford
Dictionary), the core of the term ‘peace’ is more difficult to delineate. Over the
competing definitions, this essay refers to a positive notion of peace, not related to the
mere absence of violence, but rather to the promotion of cooperation and integration
among communities and states (Luckham, 2004). Indeed, since the conflict and its
legacies generate new political realities, sustainable peace does not concern the sole
return to the pre-war condition, but ‘the elimination of unacceptable political,
economic, and cultural forms of discrimination; a high level of internal and external
legitimacy or support; self-sustainability; and a propensity to enhance the
constructive transformation of conflicts’ (Reychler, 2001:12). Thus, it encompasses
the ‘political capacity’ to manage conflict (Cousens and Kumar, 2001:12), as well as
the development of political and legal institutions that can prevent group grievances,
which naturally characterize a society, from degenerating into violent clashes. In the
context of post-conflict societies, where ‘open warfare has come to an end’ (Junne
and Verkoren, 2005:1), the achievement of a similar scenario becomes particularly
difficult, since high levels of tension and internal fracture elevate the possibility for
violent conflict to re-emerge. The combination of vulnerability in post-conflict
societies and the aspiration of Western democracies to promote liberal values for
achieving peace led to the implementation of the sole paradigm of ‘liberal
internationalism’- foreign policies that naturalize the belief that developing states
should engage an incessant process of evolution toward political and economic
liberalization in order to achieve peace (Paris, 1997:56; Junne and Verkoren, 2005;
Doyle 1986). This pattern has been executed in various UN ‘Transitional
Administrations’ through the lasting engagement in promoting liberal, democratic and
capitalist structures (Caplan, 2005:5). However, the idea that the international
community can craft peace through the reconstruction and development of entire
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states and societies reflects the hubris of the major donors and international bodies,
rather than the real possibilities achievable through peace-building operations
(Luckham, 2004; Paris, 2005).
The term TJ, coined by Kritz in 1995, covers one area of peace-building and is
grounded on the assumption that judicial and non-judicial processes are required in
order to provide post-conflict societies with justice for past abuses and enhance peace
(Villalba, 2011). The belief that justice stands as the foundation for peace represents
one of the main pillars of the Western political thought and trace of this correlation
can be found in the Biblical tradition- ‘The way of peace they do not know, and there
is no justice in their paths’ (Isaiah, 59:8). TJ developed in response to the claims for
justice during the political transitions taking place in Latin America and Eastern
Europe in the 1980s and 1990s and concerns the process of acknowledging and
prosecuting past crimes after civil conflicts (US Institute of Peace, 2008). Since it
takes place in societies devastated by massive and widespread atrocities, is directed
beyond the physical and economic effects of war to the social and psychological
effects on victims and communities (Maynard, 1997). Controversies arise in the
determination of which TJ paradigm most effectively addresses, both, the systematic
abuses of former regimes and the political ongoing changes (United Nations, 2008).
For instance, two opposing models claim the ability to address the needs of post-
conflict societies: war crimes tribunals seek retributive or political justice, and are
directed at the losing party of the conflict in order to deter and repress future
atrocities, while TCs provide restorative justice and struggle against social, political
or cultural injustices through the promotion of forgiveness and reconciliation (Elster,
2004). These approaches seems to characterize diverse visions of how a society
should be rebuild in a period of transition after a violent conflict and their relationship
is often described as one of incompatibility between justice and truth (Maynard, 1997;
Cohen, 1995).
Advocates of retributive justice, called maximalists, believe that future violence can
be avoided through the establishment of the rule of law and the subsequent
strengthening of democracy (Olsen et al., 2010). They associate justice with legal
prosecutions that typically encompass a person accused with the commission of a
crime to be judged by an arbitrator, who will determine his penalty (Quinn, 2013). In
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this sense, prosecutions can provide the most direct form of accountability by making
a clear break with the abusive past and establishing the basis for self-sustaining peace
to emerge (US Institute of Peace, 2008). The prime benefit is the public
acknowledgement of the actions committed. Indeed, during an open trial, the dynamic
and occurrence of past atrocities are examined and often truthfully divulged for the
first time, referring a strong social message that criminal actions will not be tolerated
in the future (Quinn, 2013). This commitment against impunity fosters the foundation
of a peaceful environment by demonstrating the willingness of the new government to
move away from the past (US Institute of Peace, 2008). Moreover, the core rationale
behind prosecutions, that perpetrators of horrendous crimes must be punished for the
actions committed, is directed towards the removal of the offenders from the relevant
environment, as well as to the creation of deterrence effects- inhibition of similar
crimes to be committed in the future (Quinn, 2013). Furthermore, the capability to put
trials in act is a clear symptom of the viability and functioning of the judicial system
and of its ability to transfer the authority of the law on the territory, since the failure to
prosecute would produce a ‘culture of impunity, erode the rule of law and encourage
vigilante justice’ (Olsen et al., 2010:983). Therefore, prosecutions are likable to
promote sustainable peace because they encourage the revival of legal order and
reaffirm the trust in public institutions (US Institute of Peace, 2008). The case of
Zimbabwe illustrates how the broken links of solidarity among citizens and the
promotion of accountability can be reconstituted by litigation in domestic courts and
the representation of powerful individuals against high-level government actors
(Freedom House, 2013).
Moreover, retributive TJ is conduced through different judicial levels, because
domestic courts cannot address the size and complexity of mass crimes and they are
often seen as politically biased, due to long periods of authoritarian control (US Peace
Institute, 2008). Hence, prosecutions have to be sustained by strong political will, and
this can lack if perpetrators or political factions associated with them are still in power
(ibid.). During the 1990s, the international community developed mechanisms of
enforcement in cases where the national tribunals are unwilling or unable to do so
(ibid.). These new models of prosecution, namely international courts and hybrid
tribunals, represent the pieces of an international system of criminal law fostered by
global civil society networks- movements for a new global political order (Keane,
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2003; Quinn, 2013). They provide essential resources and knowledge to the afflicted
country and attest the commitment of the international community to prosecute the
most serious international crimes- genocide, torture, crimes against humanity, war
crimes (US Institute of Peace, 2008). Due to the failures of the International Criminal
Tribunals for Yugoslavia and Rwanda (ICTY and ICTR) to meet the expectations of
the victims and communities involved in the massacres, the first permanent
International Criminal Court (ICC) was created, together with hybrid models of
prosecutions (Ramirez-Barat, 2011). Such progresses represent the propensity of
international criminal justice to create outreach programs-direct channels of
communication with the affected communities- and to provide consistent international
resources and expertise, which ultimately enhance the credibility of courts and
promote sustainable peace (Aucoin, 2007).
However, in the aftermath of widespread and brutal HR violations to guarantee justice
for all the victims by attributing the adequate sentence for every perpetrator is not
possible. The scarce availability of human and technical resources and the feasibility
of principles such as the ‘duty to prosecute’ remains uncertain, at best, due to the huge
number of individuals involved and to the difficulties in investigating and prove large
patterns of abuse (Minow, 1998). Also, the liberal idea of individual responsibility,
linked to the rationality of individuals, results problematic in the case of massive HR
abuses, because the logic of law can hardly explain of the illogic of brutal massacres
(Osiel, 1997; Langer, 1995). Furthermore, controversies arise in the selectivity of
suspects and of crimes- the decision over which situations and personalities to
prosecute- that can undermine the sense of fairness of the judicial process (Minow,
1998; Glausius, 2009). For example, problems arose when the chief prosecutor of the
ICTY decided to withdraw fourteen indictments accused of rape, creating discontents
among victims and the afflicted Bosnian population (Minow, 1998). Even if the
decision was due to budgetary and time constraints and reflected the willingness to
balance the available resources within the trial, it nevertheless proved the failure in
the pursuit of justice and respect for victims’ rights (ibid.). Moreover, the ICTY was
reliant on the political opinions of the United Nations’ most powerful members and it
depended on influential states for matters of resources, decisions and operations
(ibid.). In order to avoid such controversies, prosecutions have to respect the legal
requirements of fairness and impartiality and to follow clearly established procedures,
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such as the norms contained in the International Covenant on Civil and Political
Rights and the Rome Statute (US Institute of Peace, 2008).
Even recognizing the incompleteness and insufficiency of the retributive approach, an
action to restore self-enforcing peace in scenarios of devastation needs to be taken
using the instruments of criminal courts (Minow, 1998). This may be realized by the
combination of ‘honest modesty’ (ibid.:51) about the results achievable from
retributive processes and the acknowledgment that prosecuting HR violations is the
most direct form of accountability possible in the aftermath of a civil war.
Promoters of the moderate or restorative approach challenge the effectiveness of trials
in increasing the pacification of societies disrupted by tremendous brutalities, arguing
that prosecutions potentially perpetuate more violence and instability (Osiel, 2000).
They consider TCs- ‘bodies established to look at widespread HR violations that took
place during a specified period of time, on a temporary basis, by a state, often in
conjunction with opposition forces and/or the involvement of the international
community’ (Quinn, 2013:333)- as the sole means capable to create sustainable peace,
because of their scarce destabilizing effects. These include the mobilization of anti-
democratic forces, linked to the previous authoritarian regime or security apparatus,
with the goal of jeopardize the democratic transition (Olsen et al., 2010). Hence, TCs
seek to address the psychological damages derived from the exposure to
mistreatments experienced by civilians living in war zones (Maynard, 1997). Victims
are not re-traumatized by the ‘financial and emotional costs of litigation’
characterizing trials, such as testify and cross-examination (Minow, 1998:58).
Since the 1970s, more than thirty TCs were established, mainly in Latin America and
Africa (Quinn, 2013). They ought to promote peace employing a broad focus over the
full range of abuses committed, and to seek educative effects through the announcing
of testimony, as well as the final report containing the details of crimes (ibid.). Also,
the cost of TCs is low if compared to the one of trials, since they do not involve as
many infrastructures and personnel as the latters (ibid.).
The prime added value of TCs resides in the focus on victims, which are dignified and
empowered through the restorative process, in opposition to the sole attention on
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perpetrators attributed to war crimes tribunals (ibid.). That the official role of victims
in trials is restricted to deliver witness testimony in a formal procedure is not to be
denied. However, acknowledging the formal limitations and purposes of the trial
itself, is possible to prevent feelings of being ignored or manipulated during the
prosecution (US Institute of Peace, 2008). Furthermore, the logic shaping retributive
justice is criticized for preferring guarantees for the rights of defendants over truth-
seeking, while TCs are believed to offer a more complete account over the causes and
consequences of conflict (Minow, 1998). Yet, retributive trials reaffirm the truth
concerning the value of the victims, by inflicting a public penalty to their perpetrators
(ibid.). Hence, their limited focus on individual perpetrators does not undermine the
identification of broader patterns of violence, but requires the engagement of TCs to
investigate the widespread patterns of HR abuses in conjunction with tribunals (US
Institute of Peace, 2008).
If we look at the Ugandan case, a TC was created in 1986 to inquire the circumstances
and causes of the massacres occurred between 1962 and 1986, as well as to evaluate
the role of state institutions in HR violations (Quinn, 2013). Sadly, very little results
were obtained in the country due to a variety of situational constraints: excessive
gauge of mandate, lack of evidences, pace, scarcity of funding and lack of political
will (ibid.). The last limitation depends on the fact that these non-judicial bodies are
primarily based on the active participation of the population in the afflicted country
(ibid.). Therefore, the sense of skepticism and distrust among the Ugandan
population, which had been vexed by terrible violence perpetrated by the government
for decades, made it impossible to believe in the initiative supported by the new
regime in power. Hence, the work of the Commission was ‘negligible’, since it
involved only a small part of the whole population (ibid.:340).
The Sierra Leone case further highlights the limitations of TCs for achieving long-
term peace in regard of time constraints and institutional weakness. The Commission
was settled with the purpose of acknowledging and comprehending the country’s
horrific past, but such goal was not to be accomplished within its two years mandate
(Dougherty, 2004). Moreover, various recommendations were not executed as a
consequence of deficiency of judicial and legal influence (ibid.). This situation
created frustration and disillusionment in the members of the community and worsen
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the possibility for a pacific situation to mature (ibid.).
These examples illustrate how the accomplishment of a sustainable peace in post-
conflict societies may be addressed only by the combination of different TJ
mechanisms, both judicial and non-judicial, within a holistic approach (De Bortoli,
2014). Although TCs were created for the noble purpose of providing an alternative
healing approach to enormous individual and social damages, their effectiveness often
remains feeble. For instance, even in the most successful case where restorative
justice took place, namely South Africa, the TC was only a partial stepping stone in
the process toward national reconciliation and peace (Minow, 1998). Its successes
were connected to the particular political situation existing in the country when the
apartheid ended: the voting rights acquired by the black majority infused a real sense
of security, while the whites’ control over huge amounts of economic resources made
national unity a necessity (ibid.). Furthermore, the TC was not the sole apparatus
employed in the transition, since its successes- submissions and evidence from over
20.000 victims- were enforced by the concession of amnesties to lower perpetrators
participating in the TC’s struggle, together with prosecutions for apartheid security
forces (ibid.).
Ultimately, inquiry into facts and reconciliation pursued by TCs do not replace justice
or punishment for perpetrators of atrocities, so that, in the reality of post-conflict
situations, both retributive and restorative models serve as means to achieve
sustainable peace (Murphy, 1998). Indeed, post-conflict transition and long-term
peace cannot be guaranteed by making a choice between justice and truth or between
vengeance and forgiveness. According to Kofi Annan, TJ requires the ‘full range’ of
‘both judicial and non-judicial mechanisms, with differing levels of international
involvement and individual prosecutions, reparations, truth-seeking’ (Aucoin,
2007:42). This is due to the fact that the social damages affecting nations after a civil
war are so deep and broad that they are unlikely to be solved by a unique model of TJ.
During the Rwandan genocide, a large number of women were publicly raped and
over ninety-one percent of the children faced a death in the family (UNICEF, 1995).
In this horrific situation, the creation of a sustainable peace by employing uniquely
retributive or restorative justice systems represents, at best, an utopian goal (Aucoin,
2007). The complex legacies afflicting post-conflict societies require the
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reconciliation between the prevention of a culture of impunity, on the one hand, and
mechanisms that are more sensitive to the needs and vulnerabilities of the victims, on
the other.
TCs are grounded on the assumption that providing victims with the chance to tell and
hear the truth will have healing effects on them and, more widely, on the whole
community (Minow, 1998). However, if this process certainly succeeded in the South
African case, it is unlikely to improve the grave situations afflicting many others post-
conflict societies. In the poem Unchopping Tree, Merwin (1970) expresses the
limitations of TCs in the aftermath of a civil war. The impossibility of restoring a tree
when its twigs, branches and leaves have been totally broken is used as a metaphor to
portray the wrecked pieces of a community destroyed by massive war-related
atrocities. Even if the tree would be agonizingly reassessed it would remain
surrounded just by dead leaves. Similarly, survivors of civil wars cannot be healed by
the sole truth-seeking when enclosed in a situation of loss and devastation.
In order to face terrible large-scale abuses and to reach some form of peace, the
international support to affected countries should operate not only by addressing
individual punishment or injury but putting an end to the physical and social chaos
affecting the whole community (Maynard, 1997). Such goal cannot be pursued by
temporary ad hoc TJ mechanisms but has to include diverse justice models in a broad
and holistic approach. Starting from the assumption that each conflict situation is
unique, peace-building measures ought to encompass an inductive or problem-driven
approach, which begins with the causes and effects of particular conflicts and seek to
devise TJ strategies accordingly (Cousens and Kumar, 2001).
In this regard, evidences from the Transitional Justice Data Base (TJDB) project
reveal that only the combination of different TJ mechanisms may positively affect HR
and democracy and, subsequently, create a space for the progress of sustainable peace
(Olsen et al., 2010). The project takes into account TJ processes occurred in all the
countries of the world between 1970 and 2007 and is grounded on the Keesing’s
World News Archives as its primary source (ibid.:991). It demonstrates that the two
paradigms examined in this essay are not inevitably exclusive or opposing and, rather,
that only the combination of trials and TCs, together with amnesties, can advance the
initial TJ goals- democracy and HR promotion (ibid.).
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In fact, trials are crucial to determine the legal and moral accountability required to
deter future HR abuses in the aftermath of a civil war (ibid.). However, in cases of
‘negotiated transition’ after a conflict, that is where the prior authoritarian regime still
possesses consistent political strength, amnesties are necessary to avoid the
jeopardizing of the democratic evolution by ‘potential spoilers’ (ibid.:997). Indeed,
conflicts do not simply end because the social, political and economic dynamics
supporting them remain alive in other criminal forms (Luckham, 2004). According to
De Bortoli (2014), TJ bodies that are used in isolation ‘have a tendency to be
disregarded as nothing more than words’. The importance of TCs resides in the fact
that they address the victimhood of individuals involved in HR abuses, but they
remain nothing more than a symbolic recognition if not accompanied by concrete
political and legal efforts (ibid.). Hence, TCs are unable to operate effectively if
lacking the accountability and stability provided by trials and amnesties (Olsen et al.,
2010). Trials, on the other hand, reveal the capacity and willingness of fighting
impunity and enforcing the rule of law over political and economic powers (ibid.).
In conclusion, so far, TJ established the foundation for a sustainable peace only when
war crime tribunals and TCs have been combined in a comprehensive strategy. Both
paradigms seek to create peace in societies where massive abuses eliminated the
possibility for the state to sustain healthy relations and to respond to personal and
general needs of its citizens. The basis for peace to develop after civil conflict ought
to be grounded on long-term capacity building and the establishment of the rule of
law. To achieve this goal, the sole employment of TCs is insufficient but their action
is needed to address more directly the needs of victims and to face broad patterns of
abuses. Rather than describing them as mutually excluding paradigms, these two
approaches have to be coordinated, while maintaining their distinctive features.
Indeed, if the short-term strategy of each field may differ, their congruent ultimate
goals make their combination possible and desirable. Both approaches aspire at
accomplishing the same goals and they can be concurrently used as parts of a holistic
TJ approach.
The pervasive necessities of post-conflict societies are expressed by the words of a
survivor of the Rwandan genocide: ‘in a normal situation, one can get support and
assistance from school, extended family, work, the state. All these are gone in war.
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There is nothing. You can’t trust anyone. All is gone. There is no protection. The
teachers, the mayors, even the family has killed’ (UNICEF, 1995). Due to the
complexity of the conditions on the ground and to the horrific consequences of HR
violations, the realization of any form of sustainable peace have to move beyond the
paradigms of retributive or restorative justice and, more importantly, further than the
sole liberal capitalism paradigm.
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