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Transition and Justice: An Introduction

Gerhard Anders and Olaf Zenker

INTRODUCTION

Since the end of the Cold War, political new beginnings have increasingly been linked to questions of transitional justice. This can also be observed in Africa. Since the establishment of the South African Truth and Reconciliation Commission (TRC) and the International Criminal Tribunal for Rwanda (ICTR) during the mid-1990s, the African continent has loomed large in academic and political debates about how to deal with past injustices and realize political transition. The contributions to this collection examine a series of cases where peaceful 'new beginnings' have been declared after periods of violence and where transitional justice institutions played a role in defining justice and the new socio-political order.

In spite of the dramatic growth of transitional justice, there are other sites in countries and regions affected by violence and armed conflicts where ideas about justice, reconciliation, retribution and political participation are being instantiated and contested. Among the sites explored in this edited volume are re-education camps for demobilized combatants, refugee camps and prisons, as well as domestic courts, parliaments and village meetings. In these sites, former combatants and their leaders, politicians, civil society activists, village elders and ordinary people advance their views on how to realize justice or seek to secure a place in the new political system. Such negotiations of the terms of new beginnings in Africa, in which transitional justice measures are only one aspect of - and often challenged by - a multitude of much broader societal attempts at realizing more 'justice', constitute the subject matter of this collection. It is aimed at furthering our knowledge about transition and justice, including and transcending the usual transitional justice mechanisms, by presenting fine-grained case studies of sites where claims to justice are advanced and contested.

The focus on Africa in this edited volume is not accidental. Since the establishment of the TRC in South Africa and the ICTR in Arusha, Tanzania, the African continent has turned into a veritable laboratory of transitional justice. The International Criminal Court (ICC), the first permanent international criminal tribunal in history, has focused almost exclusively on Africa. At the time of writing, in March 2014, investigations or trials against accused from eight African countries have been opened at the ICC. This has attracted considerable criticism from various quarters, especially in Africa, where some see the ICC as a thinly veiled instrument of neo-colonialism. The advent of this critique is directly linked to the expansion of transitional justice mechanisms in post-conflict situations in African countries characterized by fragile state institutions, widespread poverty and considerable internal fragmentation due to ethnicity and regionalism. In Sierra Leone, for instance, no less than four transitional justice mechanisms (amnesty, truth commission, international tribunal and domestic criminal trials) co-existed in often uneasy relationships, as Gerhard Anders describes in his chapter. In Uganda, a similar pluralism of transitional justice institutions can be observed, as Adam Branch and Kimberley Armstrong show in their contributions. Uganda and Rwanda are of particular interest as these countries have experienced the most sustained efforts to create alternative transitional justice mechanisms more attuned to local culture and conceptions of justice.

In contradistinction to Latin America, where transitional justice was one of the means to address human rights violations by authoritarian military regimes, transitional justice in Africa with the exception of South Africa has focused on efforts to end violent conflicts and civil wars in societies characterized by the absence of a strong state apparatus and a plurality of de facto sovereign political and military groups. The growing importance of transitional justice in international efforts to pacify volatile regions affected by civil war has resulted in a growing convergence of international peacebuilding, development and transitional justice mechanisms (de Greiff and Duthie, 2009; Mani, 2008; UN, 2004). The interventions of foreign actors such as the United Nations or donor countries promoting transitional justice institutions as part of much larger military-humanitarian interventions have resulted in complex relationships with state institutions and locally operating groups. This variety and complexity is not matched by other regions and allows the comparison of different debates about transition and justice both across Africa and within specific countries. Due to this complexity and variety, the African experiences can shed light on debates about transitional justice and new beginnings elsewhere. Put differently, given that 'Africa' is often treated as a prime location for putting transitional justice into practice, African case studies seem particularly suited to decentre such approaches and to refocus on broader attempts at bringing about transition and justice.

The chapters in this edited volume cover a wide range of situations, putting an emphasis on either explicit 'transitional justice' mechanisms in the context of broader negotiations of justice and transition, or on the multifarious ways in which debates about new beginnings speak to lessons to be learnt for 'transitional justice'. In this sense, the first set of chapters aims at destabilizing the emphasis on transitional justice institutions in the analysis of new beginnings in Africa by studying other sites where past injustices are addressed. The second set contextualizes transitional justice mechanisms, situating them in relation to conflicts and negotiations about the past and the future. Widening the scope and including other sites of contestation will benefit the social-scientific study of political change and attempts to come to terms with past injustices in Africa and elsewhere. By transcending the narrow focus on institutions this edited volume seeks to address fundamental questions about transitions and justice in societies characterized by a high degree of external involvement and internal fragmentation.

We contend that the new beginnings examined in this collection are shaped by two inter-related dialectics. The first is the discrepancy between lofty promises of justice issued by lawyers, commissioners, diplomats and politicians, and the messy realities on the ground and within the institutions themselves, where the official narrative is constantly invoked and challenged by people's everyday actions. The second is the dialectic between the logics of exception, on the one hand, and the ordinary or normal, on the other hand. Re-education camps, repatriation of refugees, land restitution claims, truth commissions and war crimes trials are by no means ordinary measures; they are justified by an emergency or other exceptional circumstances. Yet there is no evidence for consensus on this, as the case studies in this collection show. In fact, there are groups and individuals who make a case for continuity by denying the extraordinary character of a situation and insisting on doing business as usual.

These dialectics, and how they play out during political new beginnings, have not been addressed by the current debate on localizing transitional justice, as the literature review in part one of this Introduction shows. The second part of the Introduction discusses the problem of new beginnings, the paradox of legitimizing a new social-political order that seeks a break with the laws and mores of the past. The third part outlines the importance of the discrepancies between lofty promises of justice and messy realities in the context of new beginnings, while the fourth examines the significance of the dialectics between logics of the exceptional and the ordinary or normal for a more comprehensive understanding of justice that transcends transitional justice as a field of study.

APPROACHING TRANSITIONAL JUSTICE: STATE OF THE ART

Transitional justice became an interdisciplinary field in its own right at the turn of the twenty-first century and has given rise to a burgeoning body of literature. Scholars from a range of disciplines including social and cultural anthropology, political science, theology and legal studies, as well as practitioners and activists, have focused on the analysis and development of institutions and processes including truth commissions, criminal prosecution, amnesty and reparations (Arthur, 2009; Bell, 2009). According to a widely quoted definition by former UN Secretary-General Kofi Annan, transitional justice comprises:

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. (UN, 2004: 4)

During the 1980s and the 1990s, democratically elected governments replaced military regimes across Latin America. This resulted in heated debates about how to address the human rights violations committed under military rule. In Argentina, Chile and El Salvador, truth...