There are indeed tremendous challenges involved in promoting and protecting human rights in transitional states. My thoughts have been on the transitional mechanisms in Sri Lanka which have yet to fully materialize after brutal human rights abuses against the Tamils committed during the civil war.
Although Sri Lanka’s Office of Missing Persons came into effect in September 2017 to investigate abductions and disappearances of Tamils , the other transitional mechanisms such as a truth commission and a hybrid judicial tribunal comprising of national and some international judges to prosecute war crimes have not been created .
The political realities have been such that the impunity of regimes of those like those of Rajapaksa and Pol Pot have gone largely ignored by current governments of Sri Lanka and Cambodia, whose officials include some members of previous regimes.
I found Akhavan’s article on the tension between ‘judicial romantics’ and ‘political realists’ particularly helpful. At the heart of this debate is whether ‘appeasing the powerful’ in order to seek peace ,stability and reconciliation of states emerging from the devastation of violence is to be preferred over the pursuit of justice and the vindication of rights of victims and their families.
It is hard to disagree with Akhavan’s assertion that ‘leaving such crimes unpunished contradicts our intuitive conceptions of fundamental justice’.
It is inconceivable that immense political and diplomatic hurdles had to be overcome before the Cambodian Tribunal finally secured the convictions of 3 individuals at the cost of $300 Million, 30 years after the mass graves of those executed by the Pol Pot regime were discovered , a killing which involved nearly 2 million victims.
The cold war diplomacy arguably contributed to the West’ s support of the Khmer Rouge’s regime and fact that it was only in 1997 that the UN recognised the killing fields.
A counterpoint to the argument that justice in the form of judicial prosecutions should be pursued over all other measures is explored in the peace v justice debate especially in the context where ‘ the pursuit of justice often competes with the imperative of a peaceful transition.’ (Akhavan).
In this respect , Nagy takes a more nuanced approach in arguing against the imposition of ‘one size fits all, decontextualised solutions.’ The argument is that truth and justice should be seen to be complementary. I would support the contention that variables such as ‘gender, customary law, culture and social justice’ ( Nagy) should feature as part of peacebuliding within the primary objective of achieving justice for victims of war torn countries.
A multifaceted approach to transitional justice should include but not be limited to an introduction of democratic processes, holding of ceremonies that dignify and memorialise victims, reparations, rebuilding of institutions that ensure the safety and welfare of citizens, truth and reconciliation commissions that provide authoritative accounts of past abuses which may possibly contribute to the the healing process for victims. (The PeaceBuilding Initiative).
Forsythe, for instance, comments that the Truth and Reconciliation Commission of South Africa ‘probably made a contribution to peaceful democratic transition’ and ‘to an all race liberal democracy’ although the actual effectiveness of the public airing of the truths of both victims and their aggressors in bringing about a healing process among a divided people remains unclear.
Payam Akhavan, Are International Criminal Tribunals a
Disincentive to Peace: Reconciling Judicial Romanticism
with Political Realism, 31 Hum. Rts. Q. 624 (2009)
Rosemary Nagy (2008) Transitional Justice as Global Project: critical
reflections, Third World Quarterly, 29:2, 275-289