The ICTJ Program Report is a new online feature that presents ICTJ’s work and impact around the globe. Through monthly in-depth interviews with our experts, the ICTJ Program Report will offer a view of ICTJ’s work on reparations, criminal justice, truth and memory, and other transitional justice developments in countries where we work.
To launch the series, we speak with Paul Seils, ICTJ’s vice president and the head of our Program Office. From Burma to Tunisia, Colombia to Uganda, we explore pressing issues facing societies in transition and ICTJ contributions in these contexts. Seils discusses important developments that have impacted the field and ICTJ’s work in the past year, and reflects on the evolving understanding of transitional justice among decision and opinion makers in today’s world. We examine the prospects and risks for accountability efforts in the Middle East and North Africa, Latin America, Africa and Asia, as well as advances made by our thematic programs as they face opportunities and challenges in the coming year.
We hope this new feature further illuminates the work of ICTJ and transitional justice issues in today’s world. We welcome your comments and feedback: please write to firstname.lastname@example.org, or connect with us on our Facebook page and Twitter feed.
Yes. We need still to explain transitional justice and its benefits. One reason for this is because transitional justice is complex, simply put. It’s not straightforward. It’s not like advocating against the use of landmines or for basic accountability. It’s more complex than that; the term itself makes it more complex, to begin with.
The second reason is that our counterparts change all the time. And even for the people that we’ve been working with for years – at embassies, the UN - it’s still relatively obvious that transitional justice isn’t their main focus. They have a grasp of some aspects of it, but they frequently need to have some kind of assistance to explain issues we work with. A classic assumption is that transitional justice is an alternative to criminal justice, as opposed to a strategic understanding of criminal justice as a part of transitional justice and accountability mechanisms.
One is the constant assumption that transitional justice is a repetition of the South African experience. And almost inevitably linked to that is the myth that transitional justice is about substituting conventional accountability mechanisms for truth and reconciliation approaches. I think there’s still a fairly massive gap- both normatively and practically- in the issue of institutional reform. There are very few experiences where we can really point to effective, clear approaches to institutional reform. And when we talk about the importance of civic trust, we have to be careful not to give the impression that transitional justice is a magic recipe for creating peaceful democracies and building the entire necessary infrastructure that a functioning democracy will emerge from.
|I think our goals have to be much more focused, and we have to be careful in making it clear how much in the foothills we really are as we do this work. Accountability does not automatically create the necessary framework for a functioning democracy, but it is a necessary, crucial start.|
No, almost certainly not. ICTJ has worked in around 40 countries in the past 10 years –and the issue is rarely just about a normative or procedural clarity. It is frequently about the basic understanding of how to achieve accountability with the instruments you’ve already got.
We worked in many countries where the criminal codes wouldn't give you the exact same framework on the motive, liability, or responsibility that you might find in the Rome Statute. But the truth is that nine times out of ten you don’t need it. There is probably something in the code that is sufficient to prosecute massive human rights violations and international crimes. So you don’t have to create a new amendment to the criminal code, even if you could do it due to issues of retroactivity.
The same is true for truth commissions. We have debates whether it should only be done by legislation or by presidential decree, and people have different opinions. But the truth is that some that have been done by decree were successful, although there are always issues around that. So, I don’t think the issues tend to be around documentation and codification. In my experience, the issue is more about the will to find ways of implementing what already exists.
I think those two things that you mentioned are very significant as a consolidation of advances in the field, both at an architectural and theoretical level. The creation of the special rapporteur is something that the relevant states have been working on for five or six years, and it represents a significant success. At the same time, there are major challenges to make sure the rapporteurship is given a realistic scope of work. I think it is not reasonable to expect that it will change the implementation of transitional justice mechanisms overnight or even at all.
The last World Development Report does represent a massive shift in the World Bank’s focus. I think it would be unfair to others before them who’ve worked in the development areas to say that the World Bank was the first to identify connections between transitional justice and issues like security and development. But it is a massive and significant step forward and very useful for the development of the field.
There are other significant developments, if less newsworthy in the short term. There are at least four ongoing major studies of what commissions of inquiry can do around accountability and transitional justice and what the relationships are. That is a slow-burning issue that has been developing for four or five years and is gradually making its way into the broader discussion on transitional justice and accountability. Major NGOs, including ICTJ, are working on analyzing and thrashing that out at a practical level.
Also, the constant effort to position the complementarity principle firmly in the justice context has seen big advances in the last year. A significant part of our work is to put complementarity into the transitional justice “box,” as opposed to it being some kind of external influence.
So, all those things are going on, not at the same headline level, but they are shaping the field in a very important way.
In a number of countries we’re trying to put forward a slightly different model of work that marries the expertise of our local offices with the world-leading expertise of our thematic experts.
|The idea is to try and go into countries where there is the opportunity to present the understanding of the relationship is between different transitional justice mechanisms, and then to devise a model for their implementation. In that way, we are hoping for a greater impact and a stronger role for accountability in the society’s transition.
At this time, we are working on this in Colombia, Ivory Coast and Tunisia. These are very much active processes. They’re all at different stages in responding to such an approach.
Tunisia, for example, has created a Ministry of Transitional Justice, which makes it look like a very good home for this kind of approach. On the other hand, it’s not clear that that ministry necessarily has the same view of a holistic understanding of transitional justice that we have.
Colombia is a great challenge in this respect. There is a great deal of activity on transitional justice across the board, like inclusion of victims, reparations, land-restitution programs, and criminal investigations into all levels of paramilitaries, politicians, military, etc. The real challenge is trying to help them focus strategically, to ensure they understand how each of these measures impacts the other. In a country like Colombia, there is a risk that these things are done episodically, in an atomized manner, without necessarily taking into account the massive impact each has on the other.
|As far as the Arab Spring countries are concerned, we’ve been heavily involved from the beginning in trying to get on the ground to understand the different dynamics. We are currently engaged in, or previously have been involved in Tunisia, Libya, Egypt, Yemen, and Syria, insofar as Syria can at this point be included at all.|
Obviously, each has its own variability and dynamics. I think there’s a kind of cycle that occurs – there is the initial surge of excitement and concern, which naturally filters out in a different way. And then, under what looks like one broad umbrella, one sees very different dynamics start to develop.
In Libya, it appears to us that there is a strong dynamic for criminal accountability, with all of the problems around the due process and capacity of the justice system. While there are prospects for certain accountability issues in Libya, there is a great deal of difficulty in assessing the possible way forward. It is a country that is still grappling with how to relate to some of these issues, and the degree to which it wants external assistance in this area.
On the other hand, in Tunisia we have a relatively low-intensity approach to criminal justice, and a much more articulate, coherent view of a reconciliation process based on other kinds of restitution and truth-seeking. At the moment, everyone would point to Tunisia as the most fertile ground for transitional justice.
Yemen is a country low on the radar but its potential is very interesting when it comes to transitional justice. Compared to other countries, it had what could be called a “political pact” kind of transition, as opposed to a revolutionary transition. Saleh’s people are still very much at large, and there continue to be negotiations there. But by some views, Yemen is actually developing more in terms of transitional justice mechanisms than Egypt, for example. Egypt is still very much in a stage of self-discovery as far as transitional justice is concerned. We are working in all of these situations and we will continue to do so next year. The issue will be to work out what kind of contribution and support we can give to these societies.
Among transitional justice literature, there is an interesting book by Alex Boraine which charts the initial ideas in South Africa being premised massively on the experiences of Argentina and Chile, and to some extent, El Salvador.
|It’s a rather sterile kind of issue, but I think we should be clear that the broad experience of transitional justice does originate in its modern form through the Latin American experience. It has been varied, changed, and improved upon through other experiences, including South Africa, but I think we do owe a particular debt to Latin American human rights activists, and it would be misleading not to put that on the record. At the same time, it would be foolish not to recognize that to a large extent, everything that happened in postwar Germany was probably a precursor of anything we refer to today as transitional justice.|
The issues in Africa represent the biggest difficulties for the study that we’re currently doing on the role of transitional justice in the conflict context versus the repression context. All of the situations that we are working in are effectively contexts of conflict, with the exception perhaps of Kenya. We are now working in Sudan, Kenya, Uganda, Ivory Coast, and DRC.
Ivory Coast has just got itself out of at least a 10-year stand-off, civil war based on ethnic tensions. In the DRC there is a state that simply cannot ensure its control of territory, and the continuing violence in the Kivu region is alarming.
Those countries represent huge challenges, and each is different. Ivory Coast is currently demonstrating a degree of openness to international support in developing accountability mechanisms. They’ve had a plethora of mechanisms already set up: national commissions of inquiry, national investigation cells, and a truth commission. They’ve already published indictments against senior officials of the previous regime.
The challenge in Ivory Coast is to help them systematize a process that makes sense rather than rush to address issues in a way that could be perceived to be “victors’ justice.”
In the DRC, we’ve got the permanent challenge of determining the most effective partnerships: should these be at national levels with the government? Should they be developed at local level with local government officials? How do we catalyze civil society activities so its contribution is useful?
We’ve worked hard on the establishment of the Special Chambers and the implementation of the Rome Statute law. But I think we have to focus on how to use the military justice system, and determine how to establish truth-seeking mechanisms that have basically been undermined or ignored. Even after all this time, we have a real and ongoing battle in Congo to make headway for transitional justice.
Kenya and Uganda present slightly different situations. Kenya’s got a smaller violation base than the other situations, resulting from the post-election violence of 2008, 2009. The ICC looms very large, I would say larger even than in Ivory Coast and in DRC. We are assisting the truth commission in the final stages of its mandate. But a lot of work still remains to be done in Kenya around implementation of any truth commission recommendations. We will be working very hard on that and trying to see what kind of appetites for accountability there are at at the local level instead of what so far have been attempts in avoiding it.
In Uganda, we’re still looking at reparations-related issues and exploring possibilities for truth commissions. At the same time, we are working with the international crimes division of the High Court, trying move the process forward.
There are three countries that I should mention in the context of Latin America: Colombia, Guatemala, and Brazil.
In Colombia, as I’ve already said, the complexity is almost intimidating. The last two governments have been working to develop mechanisms which appear to be dealing with issues of accountability. But the implementation of those mechanisms has been extremely flawed and in some senses just stillborn.
Now they are trying to keep a strategic view to understand the relationships between mechanisms, and we are helping with that. We have to find a way for the Justice and Peace Law to work, because there were simply far too many on the list of people subject to this law that could actually be investigated and prosecuted.
|The Justice and Peace process has to look at their investigations in a completely different way. That, in turn, can have an effect on the kind of truth that comes out of the justice and truth process, which in turn can have an effect on the rank-and-file people from the paramilitary organizations getting different benefits. And the truth they have to tell. All of which, of course, has an effect on the issue of reparations and restitution.
So, the information that comes from two previous processes has a direct impact on what victims will be able to demonstrate about their rights to reparations and restitution.
The issue that’s left largely unspoken but is happening behind the scenes is the domain of institutional reform. They have actually abolished one of the criminal intelligence investigation services called the DAS. That is not exactly being done publicly, but there are underlying issues in all processes not being confronted at an institutional level. There is a need to reform how people get into positions and what they do in those positions.
So, Colombia presents an enormous strategic and technical challenge. We’re working extremely hard there to make these things happen at a very, very detailed level.
Guatemala, in some ways, presents a more straightforward challenge. Effectively, we’re working hard with a number of justice actors, including the prosecution side and, in a more general way, with the judiciary. We have done a very detailed training with judges on Rome Statute and the nature of international crimes as a result of their accession to the Rome Treaty. And we’re providing some technical assistance to the prosecution as they prepare to prosecute former military leaders for genocide and war crimes.
Guatemala is a situation where institutional support from within the prosecution and judicial authorities is very clear, but broader government support is not. At the moment, the tensions, threats, and problems that arise from that are very real.
In Brazil, we are working very hard in an interesting dynamic with the development of the truth commission. We’ve already provided detailed technical advice on issues around the mandate and the initial planning. It is very encouraging to see Brazil adopt such a mechanism, and uphold the victims’ right to truth. We think that can have a massive influence on Brazil’s role as a significant contributor to transitional justice and as a model for other countries to adopt.
We have now effectively wound down our activities in Indonesia and Afghanistan, and will finish in East Timor by the end of the year. When we looked at our new strategic plan and the work we were doing, we realized that while there is important work to be done in places like East Timor and Indonesia, it is not necessarily the kind of assistance ICTJ would provide. We established that the work that is needed can be more effectively done by local NGOs, because it involves building an understanding of transitional justice at a grassroots level, or at an earlier stage in the process than our own added value can be usefully applied to.
This does not mean we won’t be involved in these countries or that we no longer care what happens there, but it does mean that in view of limited resources and our added value, we’re better employed in other places where we can have a deeper impact. It is about freeing resources in order to respond more flexibly and to put a more constituted effort into those countries where we think there’s a possibility for a concerted, holistic approach to transitional justice. In Nepal and Burma we have such, longer-term strategic engagements.
I think everyone is waiting to see exactly how the situation in Burma will unfold. With some of the changes in the old guard, there have been relatively positive indications that the transition, at least on the face of it, is irreversible.
In practical terms, there are some interesting developments in possible transitional justice approaches in Burma. Most notably, undertakings to reverse practices of recruitment of child recruitment, and look into what occurred and why. Burma would obviously be a hugely significant development in the transitional justice field, but given the cultural and historical context, we have to be relatively patient. We conducted a very detailed needs assessment mission there earlier this year, and I think we’re very well-placed to develop a prudent plan for engagement.
|Nepal remains extremely complicated. For example, every time one thinks there is a legislative advance, it seems to disappear from our grasp because of political turbulence. But we’re excited because we’re in a very strong position to develop our work. We’ve got a new head of office that will start in September and we will continue to a focus on truth recovery, truth, and memory issues, among others.|
The difficulty in Nepal is that the government structure has somewhat disappeared. We will have to adjust to that reality and work out how to refocus our efforts given the prospects of what can materialize in the next 12 months.
|ICTJ has moved to the forefront on the promotion of national prosecutions in a way that perhaps it didn’t occupy until relatively recently. And that’s partly the result of our work on complementarity and partly due to a greater ability to focus on technical assistance in a number of specific countries.|
It is important to note, however, that ICTJ’s also probably contributed the most in the area of theoretical and practical understanding of truth and memory. We continue to be leading the field in developing models in which local official and unofficial truth commissions can provide some degree of accountability. We are applying incredible energy and effort in practical assistance to commissions around the world that are struggling with their mandates. In Kenya, for example, we’re investing a great deal of effort help the commission despite a very difficult backdrop.
Our work on thematic approaches to truth mechanisms, including the issues involving indigenous peoples, positions truth and memory where it should be - at the forefront of the transitional justice discourse, along with criminal justice, reparations, and institutional reform.
When it comes to reparations, the ICC proceedings in the Lubanga case are an important development. Still, there are a number of challenges around the world in finding a way to implement reparations successfully. Colombia particularly represents a huge challenge because of scale, but also because of the degree of formality that we have to overcome. In Nepal, the challenge is to determine what constitutes assistance, immediate kind of assistance payments versus what is a reparations payment and how does ICTJ position itself around those things.
In addition to those thematic areas, we’re increasingly seeing valuable contributions, in the cross-cutting areas of gender and children and youth approaches to transitional justice. For example, in Kenya, important work has been done to ensure that the TJRC responds positively to the needs of children, and this is now a ground-breaking commission in terms of the use of children’s testimonies and the focus on children.
Similarly, across the board, especially in the Arab Spring countries, a major contribution was made to make sure that we conceive of transitional justice mechanisms with an eye on ensuring that women’s voices are heard throughout those processes.
In terms of the future, I think we first have to speak of the risks. For example, I see the risk of transitional justice being taken for granted. The Arab Spring countries and others have shown that to ensure respect for human rights during times of huge shifts societal shifts, transitional justice mechanisms are clearly needed. This is a great opportunity to show the relevance of transitional justice. In Colombia, the stakes for transitional justice could not be higher than they are right now as it seeks the development of a more just and equitable society.
The World Development Report talks about the cycles of transitions that are now occurring. In many countries we are seeing windows of opportunity. Guatemala represents an example of a new cycle, with a new opportunity, limited but significant. It is limited in terms of the actors who are interested in it success, but significant in terms of what its potential impact on for accountability.
ICTJ has a very clear focus on how we want to do things and where we want to do them. And the holistic engagement we will be adopting in some countries will bear incredible fruit in the next three or four years. ICTJ can demonstrate that transitional justice can be done in a sensible and methodical way to deliver a result that in the past has been so hard to come by.