CHAPTER THREE: POST VIOLENT CONFLICT RECONSTRUCTION

3. TRANSITIONAL JUSTICE AND RECONCILIATION

 Introduction
 In violent conflict affected individuals and communities are
often subject to gross injustices, including violations of human
rights, destruction of livelihoods and the loss of friends and
family members.
 These grievances create deep feelings of mistrust and suspicion
between communities and destroy the social fabric that holds
societies together.
 The recreation of trust is fundamental both for sustained peace,
and to create conditions for sustainable development.
 Justice for the victims of conflict is a precondition for increased
trust, and in turn depends on a functioning rule of-law
Origins of violent conflicts are frequently related to contest over
economic and natural resources or social, political and economic
inequalities and exclusion.
This means that to avoid recurrence of the violence transitional
justice processes must go hand in hand with efforts to address root
causes.
It also means that socioeconomic development programs in
post-conflict societies need to make sure discriminated groups
and/or victims of the conflict are included.
 Reconciliation and transitional justice are related to the building
of trust in the context of inclusive peace building after violent
conflicts or authoritarian regimes.
 Both seek to address the legacies of violence and human rights
abuses to compensate for past wrongs and promote social
healing.
 There is often a normative association made between
reconciliation and transitional justice, but it is important to
separate the two concepts.
 Even if they are integrally interlinked and interdependent they
do not automatically lead to each other nor come hand in hand.
 1. What is transitional justice and why is it needed?
 Transitional justice refers to the ways countries emerging from
periods of conflict and repression address large-scale or systematic
human rights violations so numerous and so serious that the normal
justice system will not be able to provide an adequate response.
 Some of the measures associated with transitional justice, like war
crimes tribunals, have a very long history.
 However, the term itself is of recent origin.

 It was developed from the 1980s as a response to political dilemmas

faced by countries with a legacy of gross human rights violations in
their transition from authoritarian rule towards representative
democracy.
 Later it was extended also to post-conflict situations.

 Transitional justice refers to initiatives taken by states and societies

to re-establish the respect for human rights and the dignity of the
victims of violations.
TheUN commitment to transitional justice was first outlined by
UN Secretary General Kofi Annan in 2004 and defined as
“… the full range of processes and mechanisms associated with
a society’s attempts to come to terms with a legacy of large-scale
past abuses, in order to ensure accountability, serve justice and
achieve reconciliation.
These may include both judicial and non-judicial mechanisms,
with differing levels of international involvement (or none at all)
and individual prosecutions, reparations, truth-seeking,
institutional reform, vetting and dismissals or a combination
thereof.”
 Transitional justice is based on four complementary pillars that are
mutually reinforcing: the victims’ rights to truth, justice, reparation and
guarantees for non-recurrence of violations.
Pablo de Greiff has also underlined the centrality of the victims in the
transitional justice processes.
The victims are the right-holders.
The visualization of the victims – all different groups of victims, not
just one group - and the acknowledgement of their voices is the most
important advance in transitional justice:
“Through different means, transitional justice helps victims occupy a
space in the public sphere that they lacked before.
Functionally, that space becomes for society the grounds of solidarity, a
basis of justice and ultimately of social integration.
 In some contexts, the term “survivor” is preferred
instead of “victim”, to avoid victimization in the
process of psychological rehabilitation.
 Not seldom have survivors/victims been driving actors
to move transitional justice processes forwards.
 Also, in the complex conflict patterns of today people
can also be both victims of and perpetrators in a
conflict, for example in the case of child soldiers.
 The four pillars of transitional justice seen from
victims’/survivors’ perspective are outlined below:
1. The right to truth
 Victims/survivors have the right to truth about what happened.

 According to Pablo de Greiff this means victims are able to seek and
obtain relevant information concerning
 a) the alleged violation;

 b) the process that enabled the alleged violation and

 c) the whereabouts of the victim (in cases of disappearance).

 The violations must be recognized if dignity is to be restored.

 There is no specific international convention on the right to truth, but

other conventions have elements that have been used by courts and
judicial bodies to establish the right to truth for victims and their
families as part of the broader right to remedy.
 Tools for truth-seeking are for example truth commissions, international
fact-finding missions, archives documenting the past, and forensic
anthropology.
2. The right to justice
 In this context justice means criminal justice.

 Criminal responsibility for human rights violations is established

through judicial procedures.
 The right to justice does not mean that all human rights violators will
be brought to court.
 Depending on context different ways of prioritizing who to prosecute
have been made; focusing first on symbolic cases, the most serious
crimes, those that are most responsible or on low-hanging fruit.
 Usually it will only be the leading and responsible perpetrators that
are prosecuted.
 According to international legislation, transitional justice, including
prosecution of war crimes, should be handled at national level.
 The International Criminal Court, ICC, is only the last instance.
3. The right to reparation
The right to reparation for victims/survivors is established in
numerous international and regional conventions.
The objective is to restore the dignity of the victims.
This can include official apologies, individual or collective
material and economic compensation, as well as physical and
psychical rehabilitation.
It may also include spiritual reparation connected to religion,
culture and burial ceremonies.
Victims’ rights also include the right to participate in the design
of the transitional justice process and other reform processes.
4. Guarantees of non-recurrence
This means measures to guarantee that the human rights
violations are not repeated in the future.
Usually it means a preventive function.
It may include reforms of justice and security institutions to
transform into democratic, efficient institutions, as well as
addressing root causes of conflicts and preserving the memory in
school curriculums.
It may also include reforms of legislation and constitution and
an array of other kinds of measures.
 
THE AIMS OF TRANSITIONAL JUSTICE
The aims of transitional justice will vary depending on the context but these
features are constant: the recognition of the dignity of individuals, the redress
and acknowledgment of violations, and the aim to prevent them from
happening again.
Complementary aims may include:

Establishing accountable institutions and restoring confidence in them

Making access to justice a reality for the most vulnerable in society in the
aftermath of violations
Ensuring that women and marginalized groups play an effective role in the
pursuit of a just society
Respect for the rule of law
Facilitating peace processes and fostering durable resolution of conflicts
Establishing a basis to address the underlying causes of conflict and
marginalization
Advancing the cause of reconciliation
 The aims of transitional justice will vary depending on the
context but these features are constant: the recognition of the
dignity of individuals, the redress and acknowledgment of
violations; and the aim to prevent them happening again."
WHAT DOES TRANSITIONAL JUSTICE LOOK LIKE?
Because of the numbers of violations and context of societal fragility not
every violation will be dealt with as it might be in normal times.
 Traditionally a great deal of emphasis has been put on four types of
“approaches:”
 Criminal prosecutions for at least the most responsible for the most
serious crimes
 “Truth-seeking” (or fact-finding) processes into human rights violations
by non-judicial bodies. These can be varied but often look not only at
events, but their causes and impacts.
 Reparations for human rights violations taking a variety of forms:
individual, collective, material, and symbolic
 Reform of laws and institutions, including the police, judiciary, military,
and military intelligence.
 These different approaches should not be seen as alternatives for one another. For
example, truth commissions are not a substitute for prosecutions.
Comprehensive Transitional Justice
"The political, social, and legal conditions in a country will dictate what kinds
of things can be done and when."
Not only is it important to think creatively and innovatively about the
established ways of addressing massive violations of human rights, there are
also important issues to bear in mind that help increase the chances of meeting
the aims of transitional justice:
Analyzing the context: The political, social, and legal conditions in a country
will dictate what kinds of things can be done and when. It is important to take
the time to carry out the necessary analysis, avoid “check-list” or template
approaches, and ensure that what is done responds to an informed understanding
of the conditions in the country.
 Getting interventions right: Because of the constraints of scale and fragility,
it will sometimes be prudent not to try to do too many things at the same time.
 Participation: The opportunity to address massive human
rights violations signals a potentially important part in the life
of any society.
 Innovation: While some aspects of transitional justice might be
well established, sound analysis can also lead to thoughtful
innovation.
 It may be that in some circumstances the most meaningful ways
of redressing massive human rights violations do not fit with
conventional concepts of accountability.
DOES TRANSITIONAL JUSTICE REQUIRE A “TRANSITION”?
There can sometimes be unnecessary confusion about whether a country is in a
period of “transition” or not, but practically speaking it is not that complicated.
The question is whether an opportunity has emerged to address massive
violations, even if it is a limited opportunity.
These kinds of opportunities have come up most frequently in and around
peace processes seeking to end internal armed conflicts:
Parties to negotiations and others involved in the negotiations may seek to
incorporate justice issues as part the agreements to end the conflict. Sometimes
these reflect the demands of civil society and victims’ groups working on justice
issues. Examples include Colombia, Guatemala, El Salvador, Sierra Leone, 
Democratic Republic of Congo, Liberia, South Sudan, the Philippines, Nepal,
and other countries.
In some of these cases, the armed conflict has taken place alongside violations
of a deeply repressive regime.
What is transitional justice not?
It is not the way to fix everything that is wrong with society.
 The long-term social and political struggles for justice and equal
opportunities might be assisted by measure of transitional justice but not
solved by it.
It is not a particular type of justice like restorative justice, distributive
justice, or retributive justice.
It is the application of a human rights policy in particular circumstances.
It is not “soft” justice.
It is the attempt to provide the most meaningful justice possible in the
political conditions at the time.
If it is simply an effort to evade meaningful measures of justice, it is
sophisticated impunity.
 1. What is reconciliation?
Reconciliation is extensively discussed in the academic literature
and there is no consensus on how to understand the concept.
It is frequently seen as connected to forgiveness.
But according to some opinions, forgiveness within a
reconciliation process should not be taken for granted.
Forgiving is a power only held by the victims, therefore
reconciliation is sometimes labelled as “coexistence” or “social
reconstruction” when elements of forgiving are not necessarily
included.
Reconciliation is sometimes seen as a process and sometimes as
a goal.
 In local contexts the views on reconciliation may be influenced
by culture and religion.
Religious traditions and religious leaders have different opinions
concerning the meaning of reconciliation.
 The concept can also be attached to different meanings in
accordance with, for example, local language, customary law and
cosmovision.
 Reconciliation may be viewed as the process of building or
rebuilding relationships damaged by violent conflict, between
individuals or groups within the society, or between the
population and the state/institutions. T
 he reconciliation process can take place within a state as well as
outside of the state’s boundaries.
 The objective of the engagement in reconciliation processes is to
prevent the conflict from re-escalating into violence and creates
sustainable peace and can be viewed as both a long-term goal and a
process.
 The reconciliation process is often seen as a bottom-up approach
dealing with the grievances that was not dealt with during the political
top-down, settlement.
 However, all levels of society need to be simultaneously engaged with.

 Reconciliation efforts must pay attention to the “connecting tissue” or

“social fabric” that connects and integrates the different entry points.
 The role of intermediaries, with the ability of listening down and
speaking up, must be highlighted.
 Reconciliation is not limited to post-conflict social reconstruction.

 It may start in the absence of a peace agreement.

Reconciliation should not be imposed as a burden on the
victims/survivors.
For them a reconciliation may not be meaningful without
recognition and acknowledgement of war crimes.
Reconciliation means different things to different people.
Its significance varies from culture to culture, and changes with
the passage of time.
To get a grip on the concept, the Handbook poses four basic
questions:
WHAT? • WHO? • HOW? • WHEN?
What is Reconciliation? Ideally
 Ideally reconciliation prevents, once and for all, the use of the past as the
seed of renewed conflict.
It consolidates peace, breaks the cycle of violence and strengthens newly
established or reintroduced democratic institutions.
As a backward-looking operation, reconciliation brings about the personal
healing of survivors, the reparation of past injustices, the building or
rebuilding of non-violent relationships between individuals and communities,
and the acceptance by the former parties to a conflict of a common vision and
understanding of the past.
In its forward-looking dimension, reconciliation means enabling victims and
perpetrators to get on with life and, at the level of society, the establishment of
a civilized political dialogue and an adequate sharing of power.
In Practice
 In practice such all-encompassing reconciliation is not easy to realize.

 The experience of a brutal past makes the search for peaceful

coexistence a delicate and intricate operation.
 Reconciliation is not an isolated act, but a constant readiness to leave
the tyranny of violence and fear behind.
 It is not an event but a process, and as such usually a difficult, long
and unpredictable one, involving various steps and stages.
 Each move demands changes in attitudes (e.g., tolerance instead of
revenge), in conduct (e.g., joint commemora tion of all the dead
instead of separate, partisan memorials) and in the institutional
environ ment (e.g., integrating the war veterans of both sides into one
national army instead of keeping ex-combatants in quasi-private
militias).
Above all, the approach must be that every step counts, that every
effort has value, and that in this delicate domain even a small
improvement is significant progress.
 There is a certain danger in talking about reconciliation in terms of
strict sequences.
The process is not a linear one.
At each stage a relapse back into more violent means of dealing with
conflicts is always a real possibility.
And the stages do not always follow logically after each other in any
set order.
Nonetheless, they remain essential ingredients for lasting
reconciliation.
 THREE STAGES STAGE
1. REPLACING FEAR BY NON-VIOLENT COEXISTENCE
 When the shooting stops, the first step away from hatred,
hostility and bitterness is the achievement of non-violent
coexistence between the antagonist individuals and groups.
 This means at a minimum looking for alternatives to revenge.

 A South African observer, Charles Villa-Vicencio, writes:

 “At the lowest level coexistence implies no more than a

willingness not to kill one another - a case of walking by on the
other side of the street”.
Stage 2. When Fear No Longer Rules: Building Confidence
and Trust
 Then, in due course, coexistence evolves towards a relation of
trust.
 This second stage in the process requires that each party, both
the victim and the offender, gains renewed confidence in
himself or herself and in each other.
 It also entails believing that humanity is present in every man
and woman:
 an acknowledgement of the humanity of others is the basis of
mutual trust and opens the door for the gradual arrival of a
sustainable culture of non-violence.
What Reconciliation Is Not
 Reconciliation must be seen as a long-term process that may take decades or
generations.
The use of the term “reconciliation” in dealing with past human injustice is not
without its dangers.
The interpretation of the concept is contested, and there are many erroneous
notions of what reconciliation is.
In a political context, those who want nothing done may cynically plan
reconciliation merely as a smokescreen.
 Victims, on the other hand, may perceive and condemn it as a code word for
simply forgetting.
 For those who have to live with their own pain and trauma, the term is indeed
extremely sensitive.
 As a victim of apartheid told the South African Truth and Reconciliation
Commission (TRC), “Reconciliation is only in the vocabulary of those who can
afford it.
 A second source of misunderstandings is that the
people of a post-conflict society are sometimes forced
to be impatient, as if coexistence, trust and empathy
can come swiftly.
 Such timing, expecting too much too soon - especially
if it is proclaimed as official policy - is doomed to fail.
 Reconciliation must be seen as a long-term process
that may take decades or generations.
 Reconciliation based on ambiguity will not last.

 The notion and its interpretation must be publicly

discussed.
Reconciliation: Who is Involved?
Allthe steps in the process entail the reconciling of not only individuals, but also groups
and communities as a whole.
Coexistence, trust and empathy develop between individuals who are connected as
victims, beneficiaries and perpetrators.
This is reconciliation at the interpersonal level.
That is, for example, what happens when the victim is willing to shake hands with the
torturer who inflicted their pain.
Many initiatives in the area of healing (for example, counselling victims and offenders
together) and restorative justice (for example, mediation) take this route towards
reconciliation.
However, all the steps in the process also entail the reconciling of groups and
communities as a whole.
 Each perspective, the interpersonal and the collective, has its own chemistry but they
are equally important in the process.
Reconciliation: How?
Burying the past in a reconciliatory way requires the
mobilization of a variety of techniques. Most of them have to be
activated in the short run:
healing the wounds of the survivors;
some form of retributive or restorative justice;
historical accounting via truth-telling; and
reparation of the material and psychological damage inflicted
on the victims.
 Dimensions of reconciliation?
A framework for reconciliation action Reconciliation Australia
defines reconciliation through five critical dimensions that
together represent a holistic and comprehensive picture of
reconciliation. The five dimensions are:
 Race relations  equality and equity  institutional integrity 
unity  historical acceptance.
Types of Reconciliation
While reconciliation is understood as a process of building or
rebuilding relationships after massive violations of human rights,
there are different sorts of reconciliation that fit under that broader
umbrella.
Individual, interpersonal, institutional, and socio-political
reconciliation are each distinct outcomes that can occur
independently or simultaneously in a society.
Individual Reconciliation
After the trauma imposed by human rights abuses, victims may
have to reconcile themselves with their past experiences.
Work alongside victims underlines the need for psychosocial
care that helps assimilate lived experiences into new conceptions
of themselves and their relationship to the society.
Interpersonal Reconciliation
To repair the relationship between victims and perpetrators,
interpersonal reconciliation can rest on the acknowledgement of
the past, reform, and forgiveness between individuals.
Socio-political Reconciliation
Socio-political reconciliation focuses on relations between groups
—social, political, ethnic, religious, or other—in divided societies.
It can involve the creation of a political community based on
openness, inclusion, fairness, and diversity that seeks to include
previously marginalized sections of the population.
Institutional Reconciliation
After the dissolution of trust in the state, institutional reconciliation
can repair the relationship between citizens and their government
bodies through the guarantee of individual and group rights.
Institutional reconciliation often leans on reforms to justice and
security agencies, but can also impact media and education.
Thick and Thin Reconciliation
Reconciliation rests on a spectrum with two poles: on one end is
“thin” reconciliation, coexistence of all involved in repression or
conflict, but with limited understanding or cohesion between the
parties. On the other end of that spectrum lies “thick”
reconciliation.
In instances of thick reconciliation, the relationships of those
involved in violations have been rebuilt on the basis of trust,
respect, and shared values, all of which may contribute to the
restoration of victims’ dignity that may have been lost as a result
of violations.
 “Restoring dignity in this sense may require processes
aimed at countering negative attitudes, restoring those
who suffered violations to their proper position as
rights bearers and citizens, and reversing or reducing
the structural causes of marginalization and
discrimination.
 It is victim centered to the extent that it means not only
recognizing the harms done through acknowledgment
measures but also taking seriously the social and
economic harms that have been caused by violations
and taking steps to remedy them
Key lessons in supporting transitional justice
 Transitional justice and reconciliation initiatives cannot be designed
from outside.
 Donors can only support initiatives with strong broad ownership in the
country. Civil society engagement together with the political will from
within the Government are critical for success of a transitional justice
process.
 Transitional justice and reconciliation are about longterm processes or
goals.
It may take a generation to fully implement a transitional justice
process. While visible results in the short-term perspective may be
important to create the trust in the process, a too heavy focus on quick
results may harm the process.
 Avoid the check-list character or template approach to transitional
justice. Donors can only support what is possible and sustainable in a
certain context, and need to understand that the possibility to advance in
different pillars of transitional justice may differ depending on context.
 The victims/survivors and their rights should always be at the centre of
transitional justice. What are the perspectives of victims/survivors, what
is most important for them in a certain context? Are they organized? Are
they included as participants with voice in the transitional justice
process?
 Conflict-related sexual and gender-based violence was for long a
neglected war-crime, but has recently received more attention for
example through key UNSC Resolutions.
 Transitional justice and reconciliation initiatives can be connected to
other kinds of development programs, for example to ensure that
victims/survivors are included in development efforts.
 Transitional justice processes often need political backing as much as
they need financial support
 1. Balancing justice and reconciliation
Transitional justice versus reconciliation - contradicting voices?
 Is there a contradiction between transitional justice and
reconciliation? One of the most debated topics concerns amnesty for
human rights violations during a conflict.
 Some argue that it is impossible to achieve peace and reconciliation
without amnesty, since perpetrators of human rights violations never
would hand in their weapons without guarantees to not be prosecuted.
Others argue that amnesty enforces a culture of impunity and that the
establishment of rule of law requires criminal prosecution.
 1. Post war reconstruction: Combining physical and social aspect
 Post-conflict reconstruction supports the transition from conflict
to peace in an affected country through the rebuilding of the
socioeconomic framework of the society.
 Given the nature of intrastate conflict, the formal cessation of
hostilities does not necessarily signify the completion of a
process of transition, although it does represent a critical point in
the transitional path.
 Reconstruction supports forward motion along this path.
Reconstruction does not refer only to the reconstruction of
physical infrastructure.
 Nor does it necessarily signify a rebuilding of the socioeconomic
framework that existed in a country prior to the onset of conflict.
 Conflict, particularly long-lasting conflict, transforms societies,
and a return to the past may not be possible or desirable.
 Psychological Reconstruction: Trauma healing
Psychologically, forced displacement creates immense human suffering
associated with trauma, loss, uprooting, poverty, destruction of normal patterns
of living, worsened economic status, political persecution, separation of
families, and uncertainties about the location and safety of loved ones (cf.
Boothby, 1988; Marsella, Bornemann, Ekblad, & Orley, 1994; Miller & Rasco,
2004; Petevi, 1996).
 Life inside camps for refugees or displaced people can produce problems of
chronic stress, poor health, dependency, depression, and hopelessness, among
many others.
Living in forced exile, many refugees have powerful protection needs and feel
stripped of their human dignity.
In such contexts, psychosocial intervention is part of the humanitarian
imperative to protect human rights and to restore human dignity and well-being.
FRAGMENTED APPROACHES
Individualization

 Focus on the individual, which reflects the individualism that

saturates Western, industrialized society, is prominent in trauma
theory and practice.
 This individual focus is ill suited to collectivist societies in the
developing world, where most armed conflicts occur.
Cultural Imperialism
 The imposition of outsider knowledge and practice can be a
form of cultural imperialism that continues on an intellectual
level the damaging legacy of colonialism
Victimization and Medicalization
 The trauma idiom tends to portray people in war zones as
victims and to emphasize deficits.
 This deficits focus frequently obscures people's resilience and
local leadership ability even under difficult conditions.
Privileging of Clinical Intervention
 In Western, industrialized contexts, trauma is a distinct
psychological affliction to be addressed by trained specialists.
 It follows that in nonwestern contexts, intervention needs to be
conducted or overseen by trained trauma specialists.
Dependency

Eager to gain the benefits of contemporary science and to obtain the

funding of agencies that bring psychologists to their settings, local people
gloss all their problems as “trauma” and turn to outside agencies even
before asking what tools they have locally to address their problems.
While Western approaches have much to offer, the silencing of local
voices and the creation of dependency on external expertise create a
sense of helplessness that is antithetical to healing and peacebuilding.
Excessive Resource Allocation
 In the aftermath of nearly any war or catastrophe, one sees an influx of
psychologists who want to assist by providing trauma intervention.
 A relatively small percentage of populations in situations of armed
conflict develop problems of clinical magnitude
Unsustainability

Many psychologists help to set up professionalized programs

that have little basis in the local culture and for which local
people feel little ownership.
Following the period of funding, when the attention of the world
has become preoccupied with another crisis and the outside
experts have left, the programs frequently collapse.
This situation can create feelings of abandonment, and it raises
many questions about what might have been accomplished had
the funds been used to build local capacities and culturally
sustainable approaches.
Linkage to Reconstruction for Peace
With regard to reconstruction for peace, the trauma-oriented approach
presents numerous problems, not least of which is the potential conflict
between projects of healing and reconciliation.
As Kosovar refugees returned home in Summer and Fall of 1999, for
example, many NGOs and local groups encouraged trauma healing through
emotional expression and reintegration.
 Being in a relatively secure situation and having returned home following
the most acute phase of the emergency, most Kosovar Albanians were willing
and eager to talk and tell the story of what had happened to them and their
families.
 In telling their stories, they achieved a measure of emotional release,
solidarity with others who had endured similar pain, and ability to get on with
their lives.
Thank You!!!!