Transitional justice as a beacon of hope

Barney Afako in Berlin | PHOTO © Constanze Flamme

This speech explores why transitional justice matters today, calling for solidarity, local ownership, and adaptability amid political and financial constraints.

The world is changing around us in ways that we are not always able to fathom. What is very clear is that the consensus that had appeared to emerge around human rights and rules-based international order is fraying quite badly. Today, nothing can be taken for granted about shared values and the effectiveness of the multilateral systems that have been built over the years.

We need, therefore, to regroup and reflect deeply on transitional justice.

We need to reaffirm our commitment to the values and processes that matter for the rebuilding of fractured societies: those societies that have been impacted by conflict, repression, and a myriad of other injustices.

Why is transitional justice important in these contexts? You have provided the answer here in this conference.

First, transitional justice lays the foundations for recovery, social repair and societal transformation: it asks questions about long-term change. In short, it is unashamedly idealistic; it looks to a better society, a fairer society, a more inclusive society, a more just, peaceful world; indeed, a better world.

However, in its historical conceptions, transitional justice has always also been realistic: it acknowledges that transformation does not occur in a political vacuum. In contexts of transition from conflict or repression, it aims to facilitate political accommodations and foster joint political and even social enterprises.

We must remind ourselves that transitional justice has been a vehicle of solidarity: while it is intensely local, it enables others to offer support to societies grappling with challenges of overcoming the past and associated injustices.

Let me give examples from the African Continent: in South Africa, they recognised that apartheid could not be overcome without identifying alternatives to formal retributive justice and emphasising political accommodation.

In Rwanda, they understood the need for prosecution and punishment of perpetrators of the genocide but also recognised that alternatives were needed to avoid an intolerable backlog and foster deeper reconciliation. With genocidaires being released after 30-year sentences, Rwandans are discovering that they need to explore what reconciliation means in the aftermath of procedural justice.

In Uganda, we recognised, in the wake of the Lord’s Resistance Army’s atrocities, that the categories of victims and perpetrators had become so blurred that you needed alternatives to prosecutions and criminal processes, to foster social repair.

Transitional justice in a time of heightened constraints

In today’s challenging world, transitional justice must continue to recall that at its best, it is an adaptive, innovative, and evolving field. And we have been grappling at this conference with the question of how to achieve societal recovery and just and fair societies in what have become constrained political and financial environments.

How do we sustain support for transitional justice? We must remind ourselves that transitional justice has been a vehicle of solidarity: while it is intensely local, it enables others to offer support to societies grappling with challenges of overcoming the past and associated injustices.

In the last decades, we have seen immense support for transitional justice, through multilateral and other bilateral cooperations, standing with societies confronting legacies of large-scale or systematic violations.

But we are witnessing today a rapid and dramatic degradation and evaporation of solidarity. Where there used to be principled solidarity, this has been replaced by political insularity and transactional, self-interested dealings.

In terms of funding, we are already seeing the impacts of a reduction in support for transitional justice. There is now an immense resource gap between the aspirations of holistic transitional justice and the realities of levels of support. We are realising how dependent we were on external resourcing and how we perhaps did not invest enough in the hard economic questions and domestic ownership.

Political support for transitional justice can no longer be taken for granted. Some of the previous solid support for justice and accountability has eroded: the troubles at the International Criminal Court are but one example.

These political constraints have contributed to, and are reflected in, resource constraints. Today, transitional justice needs to ask itself how its budget will be funded: it is not a debate we can avoid or postpone any longer. And if you don’t have a budget for transitional justice, what are you going to do? We will all need to ask questions about the sustainability of the transitional justice aspirations we espouse.

What does that (financial) rethink look like? Do we downsize, remove the budget line, or redesign? Perhaps we should be asking ourselves whether some of the goals of transitional justice can be achieved through other measures and policies – a kind of programmatic complementarity.

In difficult contexts like Afghanistan, perhaps they should be looking into how the Sustainable Development Goals can provide a less polarising framework for discussing national and subnational obligations towards citizens and potentially achieve what the language of human rights may not be able to.

In terms of funding, there is an opportunity to look at non-traditional partners and allies. Beyond engaging states, we may also need to consider how multinational corporations and other businesses can contribute to the goals of transitional justice, including the resourcing of transformative interventions. If we engage these entities, will they understand the language and concepts of transitional justice, or might we need to reframe our work?

Local ownership and context-specificity

A key pillar of transitional justice to which we must recommit is the central idea of local ownership. In the face of external and internal constraints, the question of who should shape the transitional justice agenda has become even more important.

Locally led transitional justice processes are critical because transitional justice is about defining (or redefining) transitions and societies. Consequently, those most affected by the context must be involved in this process of definition. It cannot be right that others should do the defining.

We have discussed victim and stakeholder participation extensively over the last few days. Transitional justice tends to be clear about the entitlements of individual victims but less clear in its understanding of how conflict affects the wider society. Yet, these are the citizens and taxpayers who are also impacted by the violations in different ways. In diverse contexts like northern Uganda, South Sudan, and even Syria, few people are left untouched by the violations. Their views, interests and needs must equally engage transitional justice efforts.

An emphasis on context-specificity has always been central in transitional justice and is reflected in the idea that ‘no one size fits all’. Context-specificity demands from us a deep understanding of each transition context.

In the field of mediation, in which I often work, one of the key emphases is for the mediators to deeply understand the context: not just the politics, but the economics, the sense of grievance; in short, the problem. We also like to speak of understanding the ‘people’ aspect of conflicts; how the problem has affected citizens (who are also the key actors in relation to transitional justice).

And then there is the process: only based on an appreciation of the problem and the people, can the mediator propose the most appropriate processes and options for resolution.

In the field of transitional justice, we should ensure that transitional justice processes are tailored to the problem as best as we understand it. For transitional justice, understanding the problem means cultivating a deep grasp of the different levels of politics.

We need to reflect on how to promote and collaborate on transitional justice beyond borders, treating conflict and violation systems as the integrated whole they often are.

One is always amazed at how indifferent or insufficient transitional justice discourses can be in relation to domestic politics. We need to enhance our preoccupation with understanding local contexts.

This means being prepared to listen, really listen, to communities affected by conflict and violations and to analyse the politics: not superficially but deeply. Grasping the socio-economic picture, asking deeper questions about the context: what can it sustain politically, socially, and in terms of resources?

Thus, ownership means that the affected societies must determine the direction they need to take and allocate the necessary resources for their transition. This does not mean that we do not challenge stakeholders and political actors, but that we do so from a position of empathy and support.

In focusing on national ownership, one cannot avoid the politics, but privileging the local and national voices will demand of us humility. Far too much of transitional justice still comes across as a touch arrogant: not listening enough, too sure about its answers.

We should be careful if, in our practice of transitional justice, we do not seem to face any dilemmas and have only certainties. Transitional justice at its best comes with doubts and adaptation.

Transnational transitional justice?

Another area where we need to think about adapting transitional justice is by recognising that conflicts and their impacts now have an increasingly transnational character. It is now anachronistic to confine ourselves to the nation-state when thinking about transitional justice and ownership of processes.

Very few conflicts are confined to the borders of a single state. Their enablers and associated violations extend across borders. This is apparent when we look at the Sahel and indeed the activities of Jihadists everywhere. Communities face similar challenges across national boundaries. We need to reflect on how to promote and collaborate on transitional justice beyond borders, treating conflict and violation systems as the integrated whole they often are.

A beacon of hope

We have seen that the world has become a more complex space for transitional justice and will continue to pose challenges for this field in ways that will not leave it the same. While we must preserve our goals, we need to adjust our methods. That includes finding better ways to privilege local and national voices in transitional justice endeavours.

For multilateral, bilateral and other entities, including internal elites, this means avoiding assumptions about what kind of support is needed, instead basing interventions on a deep understanding of the needs of the context. But having done our due diligence and established the concerns and needs of local stakeholders, we should be bold in reflecting those views.

In uncertain times, transitional justice must therefore stand up to selfishness, indifference and the polarisation that increasingly characterises our world, and insist that every society deserves a future without violations or violence.

Beacons point the way, helping us to see where the terrain has changed. We must recover the transitional justice that is based on the (strong) conviction that societies that have suffered injustices must be acknowledged and supported to recover. That support is an expression of our common humanity and dignity, indeed, our solidarity with others.

In uncertain times, transitional justice must therefore stand up to selfishness, indifference and the polarisation that increasingly characterises our world, and insist that every society deserves a future without violations or violence. This beacon shines a light not only on the past, but reserves the brighter light for the future: towards that which each fragile society can become and remain.