Abstract
Excerpted From: Inga N. Laurent, An Absence of Accountability, 54 Seton Hall Law Review 137 (2023) (121 Footnotes) (Full Document)
“Soon come” is a ubiquitous, amorphous, Jamaican phrase with myriad meanings. The statement could suggest the imminent arrival of a person or an object like a document, or it could suggest the promise of an intended arrival, one that never fully materializes. Transitional justice (TJ) can emulate this fluid Jamaican phrase. TJ [Transitional Justice]'s evolution has no doubt positively revolutionized the way states respond to protracted conflict, but its promise remains unrealized. Perhaps this is most evidenced in truth and reconciliation commissions (TRC [Truth and Reconciliation Commissions}s)--one practical mechanism of enacting TJ [Transitional Justice] theory. If the goals of TRC [Truth and Reconciliation Commissions}s were solely measured by the breadth of their investigative capacities, these endeavors would be an astounding success. Although collecting once-suppressed narratives is an integral component of the peacebuilding process, as the name implies, TRC [Truth and Reconciliation Commissions}s inherently require something more, namely, the move from truth to and through reconciliation. Many TRC [Truth and Reconciliation Commissions}s clear the first stage of procuring repressed truths admirably only to stall on the foothills of reconciliation--heralded healing regulated indefinitely to “soon come” status.
Archbishop Desmond Tutu, chair of the South African Truth and Reconciliation Commission (SATRC [Truth and Reconciliation Commissions}), acknowledged the harm that results when TRC [Truth and Reconciliation Commissions}s fail to move beyond their truth-gathering functions and fail to achieve the curative recommendations painstakingly drafted by commissions:
The commission was a beginning, not an end. It united South Africans around a common fire for the first time in history to hear the stories of our past, so that we could begin to understand each other--and ourselves--and take forward the job of developing the compassionate and just society for which so many had suffered and laid down their lives.
The tardy and limited payments of reparations to victims of human rights violations eroded the very dignity that the commission sought to build. The fact that the government did not prosecute those who failed to apply for amnesty undermined those who did. The proposal of a once-off wealth tax as a vehicle for those who had benefited from the past to contribute to the future was stillborn.
To use a medical analogy, the soul of apartheid South Africa was on its deathbed, fundamentally crippled, shot through with the cancers of immorality and inequity, and financially bankrupt. In the 1990s a new superintendent took over the hospital. South Africans dared to dream of a miraculous recovery. The superintendent appointed a matron, on a contract basis, to blow some momentum into the recovery process.
The commission succeeded in its mandate to stabilise the patient sufficiently to move it out of intensive care into a general ward. But then the government decided further treatment was unnecessary.
Our soul remains profoundly troubled. The symptoms are all around us.
This acknowledgment--from the preeminent figure of a process globally upheld as the “paradigmatic moment” that ushered in the modern restorative alternative to TJ [Transitional Justice] tribunals--should not be overlooked. The “politics of reconciliation [or] contest between the imperatives of the real and a desire for the imaginary” has received increased attention over the past decade. As the great Archbishop Tutu called for action, scholar, Claire Moon, warns that the therapeutic ethos of reconciliation is, at its core, “a radically new mode of state legitimation” dangerous prospect if no further guarantees of corrective action are promised. Indeed, other national TRC [Truth and Reconciliation Commissions} projects have met the same fate as the SATRC [Truth and Reconciliation Commissions}. At the end of the Canadian Truth and Reconciliation Commission (CTRC [Truth and Reconciliation Commissions}), the Commission created ninety-four calls to action for the government, and six years later, the government completed only eleven. Of the approximately seven hundred recommendations proposed in ten Latin American truth commissions, researchers found only 38.67 percent implemented. Currently, the data collected post-TRC [Truth and Reconciliation Commissions} appears to show processes that acknowledge the violence committed and promise to “close the violent chapter” in the nation's history, but the ten Latin American truth commissions fail to achieve success addressing the more difficult recommendations urging the eradication of persistent root causes of conflict.
Reconciliation in light of conflict is imperative for societal advancement. Shoring up TJ [Transitional Justice] jurisprudence and praxis, especially within TRC [Truth and Reconciliation Commissions}s, is necessary as TJ [Transitional Justice] is “increasingly commonplace,” and is now considered an essential part of peacebuilding. Scholar, Makau Mutua, poetically contends that “[i]n many circles, transitional justice has become an article of faith as a catalyst for reclaiming societies in political and social imbalance and dysfunction.” Recent TJ [Transitional Justice] processes highlight this trend. From May 2018 to 2022, an independent government agency of Taiwan investigated the actions of the Kuomintang with the aim of providing public access to political archives, removing authoritarian symbols, preserving sites where injustices had occurred, and redressing injustices, among other goals. Additionally, more countries are adopting and integrating components of TJ [Transitional Justice] piecemeal, hoping to address long-term, persistent problems often referred to as “historical injustice.” In an effort to advance reconciliation in Colombia, where “[e]very sixth Colombian is now officially classified as a victim of war,” the country adopted an ambitious Victims' Law, focusing on restitution to address past wrongs. On September 30, 2020, California established a Reparations Task Force to propose “concrete restitution to Black citizens to address the enduring economic effects of slavery and racism.” Currently, the task force is considering $350,000 in reparations for American Descendants of Slavery (ADOS).
Though questions and frustrations regarding their overall efficacy remain, TJ [Transitional Justice] processes continue evolving as experimental laboratories. In particular, TRC [Truth and Reconciliation Commissions}s are practical expressions, bringing to life the varied theoretical concepts aimed at fostering accountability and reconciliation in an attempt to ultimately enrich democracy.
TRC [Truth and Reconciliation Commissions}s also have the capacity to usher in new paradigms for society's collective existence and liberation and have become a primary mechanism for practical TJ [Transitional Justice] application. Their reconciliatory aims are laudable and worth persistent pursuit: seeking increased democratization citizen empowerment, acknowledging the atrocities survivors/victims ([Survivors/Victims} s) suffered, addressing the needs borne of [Survivors/Victims} s, preserving those wrongs by compiling them in an official historical record, and attempting to right those past injustices. TRC [Truth and Reconciliation Commissions}s are also “hostage to configurations of political power that condition the terms of peace agreements, underscore the legitimacy of incoming regimes[,] and perform a nation-building function.” In sum, these processes also have the potential to relegitimize state power without adequately addressing or altering systemic wrongdoing and failing to eliminate the conditions--explicit and implicit laws, policies, practices, and persistent power-imbalances--that allowed discrimination and dehumanization to fester in the first place. Thus, refining TJ [Transitional Justice] praxis will be an ongoing and important endeavor.
Although scholars, talking past each other, currently find it difficult to conceptually define and identify indicators of success across TJ [Transitional Justice] and TRC [Truth and Reconciliation Commissions}s, Christine Bell argues that some of the confusion arises because TJ [Transitional Justice] is rooted in multiple conflicting concepts. These concepts involve (1) “an ongoing battle against impunity rooted in human rights discourse,” (2) “a set of conflict resolution techniques related to constitution making,” and (3) “a tool for international state building in the aftermath of mass atrocity.” These concepts relate to the multiple theories of justice embedded--retributive, restorative, and transformative-- that signify the distinct, historical periods that have defined the different arcs of TJ [Transitional Justice] evolution.
Ruti Teitel's Transitional Justice Genealogy structures these arcs into three distinct phases. The origin of modern TJ [Transitional Justice] (“Phase 1”) can be traced back to World War I. Symbolized by the Nuremberg Trials, Phase 1 is primarily identified through its retributive nature. Typically, under a dominant retributivist ethos, justice is achieved via authoritative legal institutions--in particular, international tribunals--with trials representing the gold standard. The shorthand moniker for retributive justice is “just desserts,” signifying that justice is righted when a person responsible for causing harm (“responsible party” or “RP”) receives proportionate punishment.
The post-Cold War period (“Phase 2”)--marked by democratic transitions, globalization, and modernization--is largely characterized “by an acceleration in conflict resolution and a persistent discourse of justice throughout law and society.” TJ [Transitional Justice] moved away from the international tribunal model towards alternatives, hybridizing legal and societal responses to protracted conflict. This ended the targeted approach to justice that had focused on individual retributive accountability, shifting the paradigm to communitarian conceptions of accountability--principally through truth commissions. Thus, “law as conventionally understood ... almost disappeared, the alternative model was said to have universal applications and claimed general diffusion around the world .... [which had] significant juridical and political implications.” Under this contemporary phase, TJ [Transitional Justice] primarily relies on discourse as a matter of seeking humanitarian justice and is most associated with restorative justice (RJ). RJ is concerned “with how to put a situation right when ... relationships have been harmed[,]” focusing on the needs and obligations created as a result of wrongdoing.
Phase 3--or the “steady-state” (SS) phase of TJ [Transitional Justice]--marks two moves. First, TJ [Transitional Justice] becomes the international norm rather than the exception, and second, RJ, though still present, becomes augmented through the inclusion of transformative justice (“TFJ”) conceptions.
Though RJ and TFJ are frequently viewed as interchangeable, each one's ultimate aims are distinct. Frustrated with RJ's limitations--primarily its inability to address root causes of wrongdoing practitioners began altering restorative techniques to attack prevalent sociopolitical and economic issues. TFJ builds on RJ principles and moves beyond them, questioning why societal ills persist, critically assessing how injustices become structuralized, and asking who benefits from and aids in upholding structures of oppression.
Whereas RJ typically coexists alongside retributivist criminal legal system structures, TFJ explicitly opposes complicity with “systems of domination.” TFJ is mission-oriented on the aspiration of eradicating societal and institutional structures that aid, participate in, and support ongoing harm for marginalized communities. TFJ rejects the “top-down imposition of external legal frameworks or institutional templates, [striving for] a more bottom-up understanding and analysis of the lives and needs of populations.” The implications of TFJ are intriguing, considering nations dealing with consequences of civil war, authoritarian regimes, and genocide--the atrocities typically associated with TJ [Transitional Justice]--can partially mirror the reality marginalized communities exist within daily. Often, marginalized communities have had to create extra-state means of keeping themselves safe from express and implicit forms of historically present injustices with scant resources. People who have been pushed to surviving on the margins hold much wisdom for the international community to draw from when conceptualizing justice.
Although the three phases of TJ [Transitional Justice] are presented categorically, each one fuses into one another, overlapping. They can rightly be described as more cyclical than linear. Thus, arguably, TJ [Transitional Justice] is best effectuated by embracing its evolution in its entirety via appropriately combined practices capable of corresponding with its varied conceptions of justice.
Accountability is the thread that runs consistently through each conception of justice and thus is this Article's starting place for developing those practices. To narrow all that TJ [Transitional Justice] scholarship has to offer, this Article argues that the measure of TJ [Transitional Justice] will result from its ability to foster mixed and multilevel deliberative accountability. It builds on the wealth of current scholarship that mainly focuses on retributive and quasi-restorative accountability mechanisms, enlarging the field by integrating emergent RJ and TFJ praxis.
Part I delves further into the phases of TJ [Transitional Justice] along with their accompanying notions of justice as identified by Teitel's Transitional Justice Genealogy. Part II discusses the theoretical concepts of accountability within the restorative justice context and the importance of deliberative accountability in fostering democracy. Part III explores accountability jurisprudence and praxis, focusing on the importance of embedding mixed and multilevel established and emergent mechanisms. Finally, Part IV concludes with conceptual frameworks for summarizing the material presented.
Additional core tenants that guide this work include the understanding that the reconciliation praxis is experimental. No single path to reconciliation exists, and no attempt is categorically successful or unsuccessful. Reconciliation is an arduous and ongoing journey. People--those who have resisted oppression, attempts at eradication, and dehumanization--hold the keys to society's collective, positive societal transformation. The practices of the marginalized--used to keep themselves and their communities safe--should be recognized and formally integrated into TJ [Transitional Justice] theory and praxis.
[. . .]
TJ [Transitional Justice] and TRC [Truth and Reconciliation Commissions}s are now entrenched in the lexicon of responsive models for stabilization--and ultimately justice and peace. These models rest on sound theoretical underpinnings and on anecdotal and experiential success. Nevertheless, they should be viewed as experimental. Society is responsible for imagining ways to improve these processes. Acknowledging, praising, and learning from Indigenous and underrepresented communities, which have found meaningful ways of safeguarding and building up one another, hold promise for significantly improving TJ [Transitional Justice] and TRC [Truth and Reconciliation Commissions}s. [Survivors/Victims} s and their advocates have already laid the essential groundwork. TJ [Transitional Justice] scholars, practitioners, and supporters owe it to the people they serve to integrate an effective TFJ praxis so that all human beings might thrive.
Inga N. Laurent is a Professor at Gonzaga University School of Law and Fulbright Scholar.
