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Challenges facing outside actors within transitional justice

By: Saeed Kakeyi

April 13, 2008

Abstract
Since the early 1980s, outside actors—whether states, international or transnational
institutions and organizations—have been helping states in times of transition to democracy
using various transitional justice mechanisms to account for the past wrong-doings and build
a democratic state. Mechanisms such as trials, truth commissions, amnesty laws, reparations,
lustration, museums and memorial sites, have been employed either single-handedly or in a
combined form to address past vicious crimes and gross human rights violations. Within
these democratic nation/state building processes, international actors have been facing
various challenges in their attempts to strike a reasonable balance between punitive and
reconciliatory measures.
This paper tries to address some of the main challenges facing the international or
outside actors that have become the rule rather than the exception following inter-and
intrastate conflicts in the post-Cold War era. Thereafter, the author of this paper will explain
which division of labor among outside actors is likely to prove most effective in meeting
such challenges in the future.

Introduction
Transitional justice in recent years has become a “norm” for more and more nations/states in
their transitional path to democracy. However, transitional justice, since its emergence, has
encountered many challenges. In particular, these challenges do relate to the goals of
transitional justice. Achieving these goals can be fraught with difficulties such as identifying
victims, deciding whether to punish superiors or middle agents, avoiding a "victor’s justice",
and finding satisfactory resources for compensation, trial, or institutional reform. Also, the
transitional period may only result in a questionable peace or fragile democracy. As noted in
the discourse on transition to democracy, the difficulty has always been for new governments
to promote accountability for past abuses without risking a smooth transition to democracy.
In addition, existing judicial system might be weak, corrupt, or ineffective and in fact make
achieving any viable justice difficult.
The enormity of these transitional nation/state building tasks in post-Cold War era
forces the domestic actors to look for help and needed support of the outside actors.
Domestic and outside actors stand to gain from a well functioning relationship. Domestic
actors have a harder time building peace without the support of outside actors; and outside
actors cannot engage in reconciliation and peace-building in fragmented nations or states
without the legitimacy that only domestic actors can confer on their actions.

Challenges facing outside actors

Legitimacy, both in its domestic and international conceptual framework, is a critical
challenge facing outside actors in their reconciliation endeavors. Without “sufficient
acceptance by former enemies of the legitimacy of post-war rule of law” (Ramsbotham et al.:
2005, 236), outside actors may not properly be able to provide enough help for structuring a
badly needed domestic restorative justice. Similarly, without internationally mandated
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legitimate foundation, outside actors may come under unavoidable criticism, either from the
contending domestic actors or from other international actors restraining from participations
without a legitimate mandate sanctioned by the United Nations’ (UN) Charter.
After the end of the Cold War, with the horrors in the former Yugoslavia and Rwanda
freshly in mind, the UN in its take on to restore order and peace, created international
criminal courts. To prosecute alleged perpetrators of genocide, war crimes and crimes against
humanity, the UN Security Council created two ad hoc international criminal tribunals, the
International Criminal Tribunal for the former Yugoslavia (ICTY) in 1993 and the
International Criminal Tribunal for Rwanda (ICTR) in 1994 (Dicker and Keppler: 2004, 1).
With that in mind, one should not ignore the complex makeup of the outside actors—
nation-states, international nongovernmental organization, transnational corporations,
academics and their worldwide centers—which challenges the legitimacy of the outside
actors (Dickinson: 2003, 303). For example, the ICTY appears to “face greater obstacles in
establishing local legitimacy in the places from which the accused perpetrators come than
they do in establishing legitimacy within broader international communities” (Dickinson:
2003, 303).
More often than not, such legitimacy challenges closely bounded by cultural
indifferences between both, inside and outside actors. What it may seem legitimate for
outside actors, may not be the same for inside actors. In explaining his “perceived
legitimacy” term, Dickinson shows the cultural legitimacy contestation by stating that
“various national communities may focus on very different factors in assessing a court's
legitimacy, and these factors might, in turn, be different from those that underpin legitimacy
in the eyes of various international communities standing outside a country and judging its
legal process” (Dickinson: 2003, 301).
It is inequitable, however, to deny the successes of outside actors in holding some
perpetrators of crimes in the former Yugoslavia and Rwanda accountable. Although
financially expensive and time-consuming, the ICTY “has played a critical role in advancing
the cause of justice in the former Yugoslavia” (Freeman: 2004, 2). Also, the ICTY has been
able to maintain its pledge to balanced judicial objectivity while retaining qualified staff in
the face of competition from other local and international courts (Freeman: 2004, 4). Similar
successes did occur with ICTR in Rwanda. In 2002, the Security Council increased the
capacity of the Rwandan tribunal by amending the ICTR Statute “to permit ad litem judges to
serve in trial chambers” (Dicker and Keppler: 2004, 2). It is worth mentioning that these
successes have contributed to the legitimacy of the ad hoc tribunals in the eyes of inside
actors who are susceptible to the new culture of globalization. Yet, culture has always been
influenced by political factors, especially in times of transitions to democracy.
The global political culture in the post-Cold War era reflects the increasing nature of
intrastate conflicts in which human rights are routinely violated. In turn, this factor indicates
that the relationship between peace and justice is becoming a complicated one (Ramsbotham
et al: 2005, 241); therefore, “a significant increase in the judicialization of world politics both
regionally and internationally” cannot be denied (Sikkink and Walling: 2005, 3). The
diversity of this “judicialization” process—domestic, traditional, foreign, international and
third generational hybrid trails—poses some critical “political constraints or contextual
challenges [that] cannot necessarily be averted” (Hayner: 1994, 636). In fact, it is shaping a
new norm in the history of human rights trials. According to Gray Bass, “there is no way of
determining what will be done to accused war criminals without reference to ideas drawn
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from domestic politics” (cited in Sikkink and Walling: 2005, 22). Insofar, exploring new
ideas and morns may reduce the “capacity-building problems” and increases the venues for
cooperation between the domestic and the international judicial bodies (Dickinson: 2003,
304). Moreover, diversifying ideas and norms will strengthen the accountability measures in
striking a balance between punitive and reconciliatory mechanisms and may lead to a
“substantive norms criminalizing mass atrocities in transitional countries” (Dickinson: 2003,
305).
In sum, cooperation and diversification of ideas and norms may lead to develop
domestic justice systems that are critically important for the transitional process. In countries
where there is no justice or where there is only unequal access to justice, violent conflict is
likely to reemerge. Outside actors can help domestic actors to improve the justice system in
four main areas: reorganization, recruitment and training, infrastructure and access to justice.

The division of labor and the task of reconciliation

The way in the direction of reconciliation is neither linear nor short, because dealing
positively with the past means engaging in a process that may always be conflict-ridden.
Tension resides in how best to address these conflicting interests, because the desire for
justice and accountability can be paradoxical to the call for reconciliation and forgiveness
(JICA: 2006, xxxv).
As literature in the field show, an acknowledgment of the grievances of victims might
be the first goal. Therefore, the need for addressing the past constructively has resulted in
several transitional justice measures to approach to restore the social structure from the point
of view of accountability and responsibility.
In turn, these measures put heavy stress on cooperation and division of labor. The
reintegration process, designed to facilitate development with an equitable peace, requires the
support of all main domestic, regional and international actors in a program of national
reconciliation. Coordination is essential among the domestic as well as outside actors. It is
also important to develop institutional capacity which will help to mobilize the available
administrative staffing and sources of information to enable the judicial capacity-building
measures to be carried out within an integrated framework for greater impact (Dickinson:
2003, 303-5; Ducci: 1998, 3). For example, outside actors may engage helping domestic
judicial systems with: specific legal and technical advice, training of judges, attorneys and
police officers, supporting structures that help make the justice system more accessible, and
providing funding for the establishment of tribunals or other offices (JICA: 2006, 159).

Conclusion
This paper has some the main challenges facing outside actors in their attempts to strike a
reasonable balance between punitive and reconciliatory measures. It has argued that in the
age of globalization, cooperation and diversification of ideas and norms may lead to develop
domestic justice systems that are critically important for transitional justice. Also, this paper
has explained the importance of cooperation for the judicial division of labor to provide
effective reconciliation measures.
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Reference:

Decker, Richard and Keppler, Elis (World Report 2004). Beyond the Hague: The Challenges of
International. Retrieved April 09, 2008, from http://hrw.org/wr2k4/10.htm
Dickinson, Laura A. (April, 2003). The Promise of Hybrid Courts. The American Journal of
International Law, Vol. 97, No. 2, pp. 295-310.
Ducci, Maria (1998). Guidelines for Employment and Skills Training in Conflict-Affected Countries.
Geneva: International Labour Office (ILO).
Freeman, Mark (October, 2004). Bosnia and Herzegovina: Selected Developments in Transitional
Justice. International Center for Transitional Justice, 1-13. Retrieved Apri 04, 2008, from
www.ictj.org
Handbook for Transition Assistance (2006). Tokyo: Japan International Cooperation Agency (JICA).
Ramsbotham, Oliver, et al. (2005). Contemporary Conflict Resolution, (2nd Ed.). Cambridge, Polity
Press.

Sikkink, Kathryn and Walling, Carrie Booth (2005). Errors about Trials: The Political Reality of the
Justice Cascade and Its Impact. Retrieved April, 09, 2008, from
http://wage.wisc.edu/uploads/Events/GGI/APSA%202005%20final%20copy-Sikkink.pdf