Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice (4 page)

Two dimensions – national/international, or truth commission/trial – are no longer enough to map the universe of transitional justice efforts. Transitional justice now reaches down into the local village or neighborhood level, and makes use of a number of techniques drawn from or influenced by local customary law that combine elements of truth‐telling, amnesty, justice, reparations, and apology. In East Timor, the Truth Commission organized Community Reconciliation Procedures where low‐level perpetrators (none who had committed murder or crimes against humanity) were granted immunity from formal prosecution in exchange for appearing at a community‐level hearing, recounting their crimes, and carrying out a sanction imposed by the community itself. In Rwanda, the government is carrying out a large‐scale experiment in the use of village‐level
gacaca
courts to judge alleged perpetrators of the 1994 genocide. Local‐level justice processes can create a much tighter sense of community ownership than those that take place in far‐off capital cities or, worse still, foreign lands. They can provide a
more understandable process, one untainted by the perceived unfairness or remoteness of formal legal structures often inherited from a colonial power. They can also play a role, after “horizontal” conflicts involving ethnic‐ or territorially‐based armed groups, in allowing neighbors who have been on different sides of a conflict to re‐engage and to coexist. They can draw on indigenous and traditional ceremonies and authorities, tapping into profound spiritual and world‐visioning symbols that are often non‐Western, based on ideas of community harmony and well‐being. Because of the culture‐specific nature of these processes, it can be hoped that they will resist the tendency, so pronounced in the case of truth commissions, for politicians and negotiators to extrapolate a “formula” that can be applied, with few changes, to any and all situations.

These local‐level initiatives also give a new, more fulsome meaning to the concept of reconciliation. During the early wave of experiences, reconciliation was conceived of as either a code word for impunity (the Latin American experience) or as an automatic by‐product of other processes, especially of knowing the truth (the South African variant). However, a new understanding of reconciliation as a separate set of phenomena, with its own demands and time‐frames, has slowly emerged. Definitions of reconciliation are still contested and murky, and the individual, community and polity aspects of such processes are still not well understood. Theorists talk about “thick” and “thin” processes, of “coexistence”
[18]
or “normalcy”
[19]
as the goals. We, like others,
[20]
have always preferred the term “social (and moral) reconstruction”; some chapters use reconciliation instead. As Weinstein and Stover write:

 

And so, at a group level, reconciliation involves the reconfiguring of identity, the revisiting of prior social roles, the search for common identifications, agreement about unifying memories if not myths, and the development of collaborative relationships that allow for difference. At the individual level, reconciliation may mean personal reconnection with friends and acquaintances from a former life – a reconnection that raises questions about trust, forgiveness, and attachments in a very intimate way. Societal development necessitates the construction of networks that promote collaboration across social groups.
[21]

 

It is easier to visualize these multiple meanings once social reconstruction has been decoupled from other transitional justice processes, with which it is deeply interconnected, and once the community as mediating structure between the individual and the polity has become a key actor in at least some post‐conflict settings. Finally, a more complex temporal dimension exists as well. While transitional justice efforts focus on the
period shortly after a new government, committed to change, comes to power, it is now clear that ends to transitions cannot be decreed, and that certain aspects of the transitional justice agenda will endure for many years. Transitions may happen in bouts or waves, as new generations come of age and as the international context changes. A long‐term perspective is therefore essential.

This book brings together case studies that explore one or more of these dimensions. Together, they illustrate the interplay of different functions, levels, mechanisms and goals in the current transitional justice agenda, and they point to some directions for the future. The cases are organized into two parts: Part I involves Truth and justice: Combinations and coordination. Part II centers on Levels of justice: Local, national and international. The overlap between the sections is substantial. The chapter on the East Timorese Community Reconciliation Procedure, for example, is about both combining truth and justice and combining local, national and international levels of justice, while the chapter on emerging efforts in Colombia reflects both the combination of functions and the strong influence of international factors, especially the Inter‐American system and
ICC, on domestic debates. Several of the case studies in Part II also involve multiple mechanisms or proposed mechanisms, while those in Part I reflect different (and in the East Timor and Sierra Leone cases, extensive) international shaping and participation. A concluding chapter draws out the lessons learned.

We chose the case studies because they illustrated one or more of the trends we were interested in: other places could have illustrated many of these same points, and raised others. We also looked for a balance of regions, how far along these processes were, and varying kinds of international influence. We looked for a mix of the relatively well‐known, and of places much less‐known and analyzed, at least in the English‐speaking literature. We also looked for a mix of academics and practitioners, a combination of insiders describing the processes they helped establish and guide, and outsiders with intimate and long‐standing knowledge of those processes. We brought the team of authors together (with a number of additional experts) at a workshop held at Notre Dame University's Center for Civil and Human Rights in 2004. Seeking a balance between specificity and comparability, after discussion of all the papers, we jointly came up with a rough template of questions for the chapters: questions about effectiveness, buy‐in, constraints, continuity and sustainability, synergies and gaps. The chapters each reflect these concerns in their own way.

The study of how to come to terms with the past, to reconstruct the social and moral fiber of a society, is one of the most complex and
daunting human endeavors. It is not just a rational intellectual exercise, but one that engages our deepest and most cherished notions of what it means to define ourselves and our memory, and to live in community and society. In all these stories, determined people, faced with a window of opportunity, looked to other places for ideas, borrowed from their successes and learned from their failures, taking outside constraints into account. And then, if they had the minimal security and leeway to do so, applied their own wisdom, ingenuity, imagination and traditions to create something unique to their particular time and place. We celebrate that creativity, determination, and drive, and we dedicate this book to those, in all the countries where we work, who act to make justice, in the largest sense of the word, a reality.