Whether recovering from the horrific realities of war or the effects of long-standing repressive regimes, societies often find themselves attempting to reconcile their past while safeguarding a better future.

Since the end of World War II, this struggle has become an increasingly important feature of the political transitions undertaken by post-conflict countries. During the latter half of the twentieth century, there were 251 internal and international conflicts, which left 70 – 170 million causalities behind.[1] In response, a number of justice mechanisms were developed to help post-conflict societies deal transition to peace and democracy. Criminal trials were held in Nuremberg, Argentina, the Balkans and Rwanda, while truth commissions were established in Chile, El Salvador, and South Africa. Reparations, lustrations, pardons, amnesties and civil litigation were at times also part of the transitional justice project.

While the Arab Spring has in many regards proven to be a successful, transnational revolution, its long – term success will largely depend on the measures used to assist transitional societies both in overcoming past atrocities and creating milestones for a better future. While success remains largely contingent on the context and dynamics of each conflict and society, it is imperative that decision makers understand the available mechanisms.

Transitional justice involves a variety of different actors, including but not limited to victims, perpetrators, the state, the international community and, at times, Multi National Entities (MNEs), and encompasses several different types of measures, including individual criminal responsibility, truth and reconciliation commissions, lustrations, and amnesties, among others. The goals of transitional justice measures often include truth, justice, and reconciliation – whether mutually or exclusively sought.

Given the diversity of actors and goals, post-conflict societies often must adopt a combination of different transitional justice mechanisms in order to successfully transition to a better future.

Individual Criminal Responsibility

 

Seen as the cornerstone of contemporary international criminal law, the Nuremberg trials, held in the immediate aftermath of World War II, were the first instances in which individuals – as opposed to states – were held criminally responsible for international crimes.[2] Nuremberg’s achievements also led to the development of human rights law, which helped expand international law’s scope beyond the nation-state by endowing individuals with both rights and obligations within the international legal order.

In the years since Nuremberg, the principles of individual accountability have been institutionalized in the ad hoc International Criminal Tribunals for Yugoslavia and Rwanda,[3] as well as in the permanent International Criminal Court. Nevertheless, the efficacy of prosecutions in post-conflict settings remains questionable at best.

Proponents of prosecution argue that holding individuals responsible for international crimes creates a deterrent effect, which helps prevent future violations and abuses of human rights.[4] This perception is contradicted, however, by the number of atrocities that have occurred since Nuremberg.[5] In addition, some scholars believe that trials may feed into cycles of blame between different parties, leaving vengeance to be transformed into retribution.

Critics of transitional justice also underscore the selective nature of criminal prosecutions, and their inability to adequately deal with large-scale violence. Of course, selectivity remains inevitable due to the delicate and highly-charged political climate in which decisions to prosecute are made.[6] At the same time, selectivity sometimes results from attempts to prosecute the most senior, responsible individuals,[7] thereby giving lower ranking officials a degree of impunity.[8]

While on the domestic level punishment of criminal conduct may arguably help with deterrence, the same assumption does not hold on the international level, where crimes often involve mass atrocities and a unified law enforcement mechanism to bring criminals to justice is absent.[9] Still, there is much symbolism embedded in these prosecutions, such as commitment to the rule of law,[10] which are integral both to transitions to democracy and the legitimacy of new regimes.

The success of criminal prosecutions may be dependent on timing, as well. Especially if conducted at an early stage in the transitional process, prosecutions may be destabilizing and hinder peace negotiations between parties to a conflict. In Egypt, the prosecution of former President Hosni Mubarak and his abettors illustrates this point. Held during the immediate aftermath of Mubarak’s fall, these prosecutions may be viewed as helping to destabilize Egyptian society.

Truth Commissions

 

Since 1974, over 25 truth commissions have been established to deal with post-conflict situations. Truth commissions are non-judicial institutions that neither punish wrongdoers nor seek retribution. Instead, they work to establish a historical record of the past and investigate and reveal the truth about atrocities, tasks which are essential to national and individual reconciliation. Truth commissions tend to be victim rather than perpetrator-focused, as they aim to provide redress for victims and survivors and to accommodate their needs.[11]

At the conclusion of their mandates, truth commissions can make recommendations and disseminate reports about their findings. Capable of being employed alongside trials and potentially remedying some of the shortcomings of prosecutions, truth commissions have become increasingly popular.[12] They are seen as responsive to the right of victims and society at large to know the truth. This “right to truth” can be inferred from human rights instruments – such as the ICCPR – that expressly require states to investigate human rights violations and to, for instance, disclose the fate of the disappeared to their relatives and identify those responsible for international crimes.

At the outset, truth commissions may appear more effective than trials in many regards. By establishing a historical record, truth commissions help minimize the risk that violations will be repeated or forgotten. In addition, by investigating the actions of different parties, truth commissions aim to identify general patterns instead of focusing on individual perpetrators, making them better suited to producing comprehensive accounts of past crimes.

It has been proposed, therefore, that truth commissions be given broad mandates to investigate the actions of all parties to a conflict or civil unrest. While legal judgements can produce some account of historical events, compiling an adequate and an all-encompassing account remains challenging.

Truth can exist in different forms, including factual, subjective or personal. Some argue that while truth commissions may lead to reconciliation, they may nevertheless underestimate the complexities inherent in truth as a concept.[13]

Whatever the accuracy of these concerns, the fact remains that truth commissions can only achieve as much as is allowed by their mandate, their procedures, and their relationships with governments and relevant actors.[14] When the mandate of a truth commission prevents it from compelling the cooperation of victims and/or perpetrators, or sanctioning parties for their lack of cooperation, this undermines the legitimacy of the truth commission and the credibility of the historical record it aims to establish. The implementation of a truth commission’s recommendations also turns upon the political will of the government – without this will, the work of the truth commission comes unraveled.

Reparations

Reparations are a form of restorative justice, which assist victims in dealing with issues of victimhood and overcoming feelings of helplessness and anger.[15] These measures can include restitution, compensation, rehabilitation, apologies, and guarantees of non-repetition.[16] Victims’ rights to these remedies have been recognized by human rights instruments, such as Article (8) of the Universal Declaration of Human Rights and Article (9) of the ICCPR. Most recently, states’ obligations to provide for these rights was emphasised by the UN Basic Principles and Guidelines on the Right to a Remedy and Reparations.[17] When employed alongside other measures, reparations can be of particular assistance to victims.

While monetary compensation cannot rectify non-monetary harms, reparations signify acknowledgement and acceptance of responsibility, helping victims feel like their suffering has been recognized.[18]

Nevertheless, in cases involving mass atrocities such as genocide, determining who is to be compensated may be problematic due to the number of individuals affected. This challenge makes symbolic, rather than monetary, reparations, such as apologies, a more feasible avenue for many post-conflict societies.

Political will remains crucial nevertheless to ensure the success of reparations. In the South African Truth and Reconciliation Commission, the Reparation and Rehabilitation Committee was mandated to deal with reparation and rehabilitation orders. Acknowledging the urgency of meeting victims’ needs, the Committee’s interim report recommended that urgent measures be adopted,[19] such as the provision of medical treatment, financial assistance, and counselling services. The Committee’s recommendation proved futile, however, as there were substantial delays in implementing these measures.

As a result of these shortcomings, South African victims have demonstrated a growing interest in seeking redress in foreign courts. Although the outcome of such proceedings has yet to be fully investigated, the availability of this avenue is particularly important – as economic and political factors hinder governments from adopting effective policies on reparations, foreign courts may present an appealing option.

Conclusion

While criminal trials contribute to the cause of justice and end impunity for perpetrators, they are insufficient alone to realize the promise of transitional justice. While the trials of Mubarak and his aides created the appearance of justice, there is much to be said about how these proceedings were handled and the destabilization they caused. In addition, there are concerns as to whether these trials addressed the needs of victims and their beloved ones.

Combining different mechanisms, such as trials, truth commissions, and reparations, may better assist transitional societies in meeting their objectives.

Helping to uncover the truth about past events and repressive regimes while also facilitating national and individual reconciliation, truth commissions, which have yet to be successfully employed in the region, may be of particular significance to Arab Spring countries.

Reparations may prove to be a symbolic and material boon for victims, as well. When implemented effectively and alongside other measures, reparations can assist victims in overcoming their victimhood and in moving beyond their past suffering.

The International Center for Transitional Justice has recently recognized the need for the more holisitic approach to transitional justice advocated here.[20] This hybrid approach to transitional justice may be advantageous for Arab societies that are crawling if not toward transition then toward change.

The sooner decision-makers in these countries give due regard to the different transitional justice mechanisms available to them, the more successful these movements for change and revolutions in the region will be.

 


[1] M.C. Bossiouni ‘International Criminal Justice in Historical Perspective: The Tension Between States’ Interests and the Pursuit of International Justice’ in A.Cassese, The Oxford Companion to International Criminal Justice (New York, Oxford University Press,2009) 131,p.139

[2] A. Clapham ‘Issues of complexity, complicity and complementarity: From the Nuremberg Trials to the dawn of the new International Criminal Court ’ in P. Sands, From Nuremberg to The Hague the Future of International Criminal Justice (Cambridge, Cambridge University Press,2006) 30,p.33

[3] A. Cassese ‘ International Criminal Law’ in M.D.Evans, International law ( New York: Oxford University Press, 2006) 719,p.725

[4] D.F. Orentlicher ‘ Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime’(1990-91) 100 Yale L. J. p. 2537,p.2542

[5] M.Minow, Between Vengeance and forgiveness (Massachusetts:Beacon Press,1998) p.27

[6] R.Kerr & E.Mobekk, Peace and Justice Seeking Accountability After War (Cambridge: Polity Press, 2007) p.116

[7] M.Minow, Between Vengeance and forgiveness (Massachusetts:Beacon Press,1998)) p.31

[8] R.Kerr & E.Mobekk, Peace and Justice Seeking Accountability After War (Cambridge: Polity Press,2007) p.117

[9] P.Akhavana ‘Are International Criminal Tribunals a Disincentive to Peace? Reconciling Judicial Romanticism with Political Realism’ (2009) 31 Hum. Rts. Q 624, p.628

[10] M.Minow, Between Vengeance and forgiveness (Massachusetts:Beacon Press,1998) p.25

[11] J.E.Alvarez ‘Alternative to International Criminal Justice’ in A.Cassese, The Oxford Companion to International Criminal Justice (New York: Oxford University Press, 2009) p.30

[12] J.E.Alvarez ‘Alternative to International Criminal Justice’ in A.Cassese, The Oxford Companion to International Criminal Justice (New York: Oxford University Press, 2009) p.30

[13] R.Kerr & E.Mobekk, Peace and Justice Seeking Accountability After War (Cambridge: Polity Press,2007) p.133

[14] A. Clapham ‘Issues of complexity, complicity and complementarity: From the Nuremberg Trials to the dawn of the new International Criminal Court ’ in P. Sands, From Nuremberg to The Hague the Future of International Criminal Justice (Cambridge, Cambridge University Press,2006) p.30 – 1

[15] M.Minow, Between Vengeance and forgiveness (Massachusetts:Beacon Press,1998) p.92

[16] P.D.Greiff ‘Justice and Reparations’ in the Handbook of Reparations (New York: Oxford University Press, 2006) p.452

[17] C.Jenkins ‘after the Dry White Season: The Dilemmas of Reparation and Reconstruction in South Africa’ (2000) 16 S.Afr. J. Hum. Rts 416, p.439

[18] M.Minow, Between Vengeance and forgiveness (Massachusetts:Beacon Press,1998) p.94

[19] C.Jenkins ‘after the Dry White Season: The Dilemmas of Reparation and Reconstruction in South Africa’ (2000) 16 S.Afr. J. Hum. Rts 416,  p. 465 – 6

[20] T. Olsen, L.A. Payne, A.G. Reiter, Transitional Justice in Balance Comparing Processes, Weighing Efficacy (Washington D.C., United States Institute of Peace, 2010) p.24