The concept of transitional justice is usually being used for addressing legacies of mass-violence and injustice committed by state institutions. It is a recipe to repair what was done wrong and set it back right up as it is supposed to be, using basically legal mechanisms, a form of retributive justice.
Despite the fact that concept of transitional justice has been widened (“evolved”), as proof of short-comings arose through practice, hence including restorative justice actions etc, my knowledge is deducted from Balkan context that I am engaged in. In the Balkans we have the original TJ concept implemented that relies solely on retributive justice mechanisms, that is International Tribunal for War Crimes and national war-crimes proceedings. It is also clear to me from my context that retributive justice actions are incompatible with some restorative justice actions. An example of this incompatibility would clearly be International crime court and local Truth Commissions which would grant amnesty for complete testimonies of perpetrators. In the case of the Balkans, wide national rejection of releasing verdicts in some important cases has cast a permanent shadow and harmed the credibility of the Tribunal. Furthermore, realisation that the completion of work of international tribunal (which listed reconciliation as one of it’s goals, later removed from it’s website) and ongoing work of national courts has not improved the situation of hatred, discrimination, dominance of nationalistic narratives, fear and enmity as legacies of war, has lead to new ideas of creating regional post tribunal commission which is building on fact-finding achievements of the Tribunal but using truth telling as restorative justice mechanism. However, 13 years since the idea launch, the cold-war atmosphere and contested verdicts of the Tribunal have deemed these attempts void. Twenty four years after the end of Bosnian and Croatian war, twenty years after the end of Kosovo war, we live an atmosphere of ceasefire, not peace.
But, beside some known points of criticism for the work of the Tribunal I wish to point out some criticism points that relate to the concept of the transitional justice in our case.
My points of criticism come from the field I am practicing, that is peacebuilding in the Balkans. I work with war-veterans, a group of people that is rather influential in creating public opinion on issues of the past, and also with other groups with multiplication potential such as journalists, teachers, activists in mixed cross-border groups of (former) enemies.
So transitional justice leads to things being fixed!? Usually the advocates of transitional justice make no difference between justice as the term for the outcome of a legal procedure, and the rather subjective sense of justice that victims or their families as recipients of justice have, or the widely socially perceived sense of what is a just outcome after the injustices committed. For much of international and national justice delivered through criminal procedure there is a public perception that it is unjust. This is not only due to flaws of the legal mechanisms but also because the concept of TJ suggests that justice can be served in cases when no just outcome can exist. Just outcome would be to repair damage that is irreversible and irreparable, but this fact is not recognized. The assumption that repairing is possible by creating just outcome, through legal procedure or otherwise, is illusive and misleading.
How do you repair a loss of life? How do you repair a loss caused by years of suffering and or discrimination? My answer to this is, that the damage done is beyond repair, we cannot compensate or repair a loss of life, a loss of future. What we can do is to contribute to acknowledgement by symbolic acts such as material giving (”compensation”), material privileges to minors left behind, respond to the need that life of victims should be publicly acknowledged as loss and the grief to be given public spaces – an attempt to provide a “sense” for their victimisation. Despite the obvious urge to “repair”, defining unrepairable appears useful in terms of defining the tasks ahead.
To make it clear, a loss of child’s life is an irreparable loss, one may be able to amend the need for recognition of this injustice, or punishment of perpetrators, or create a public remembrance and grieving space about the horrible event, but none of these actions repairs the damage. These actions may contribute to restoring safety for victims and to limitation of ongoing humiliation and suffering.
However, when we look at the ultimate goal: that wounds are healed and that it does not happen again, I see no evidence that these goals can be reached through TJ mechanisms.
Even the most purposeful goal that justice proceedings can achieve: to “tell the truth” determine undeniable facts, widely socially accepted, is not achieved within the Balkan context. Despite high quality work in gathering evidence, the Tribunal failed to be recognised as credible in countries that were meant to profit from it’s work. There are many complex circumstances and reasons for this, which go beyond the scope of this article.
Under real life condition many questions arise and reveal the shortcomings of TJ mechanisms:
What happens when perpetrators are dead? Truth, justice, punishment, repair? Nothing.
What happens when there is no evidence leading to particular perpetrators? Nothing.
What happens when the victims where ordinary soldiers who died in combat? Are they to be considered victims, since law does not recognize them? Is their loss of life a tragedy to their friends and family which requires healing and how exactly TJ addresses this issue?
If we are aware that war-crimes have been illegal and were a subject of legal prosecution for decades already and they keep on repeating, why do we assume that legal prosecution is a barrier to repetition? Is there anything else than threat of repercussions keeping people away from killing one another? If we can think of other reasons not to kill, shouldn’t we rather develop strategies to strengthen these reasons?
Why do people stick to a concept that does not deliver what it’s meant to deliver?
It is misleading to rely upon a concept that is enrooted in legal practices to build peace or achieve reconciliation since peacebuilding and social reconciliation are much wider and much more complex issues than any legal frame could embrace. It would be helpful to recognize TJ’s’s limits and merits and research the field of interaction and impact that TJ mechanisms, or their absence, have on peacebuilding and/or peace degrading. It appears unjustified to speak of peacebuilding as an action contributing to transitional justice, in order to justify the evolution of a concept, which is limited in it’s reach and shortsighted in it’s design.