Tuesday, January 17, 2023
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CommentaryThe concept of Transitional Justice and its mechanisms

The concept of Transitional Justice and its mechanisms

Transitional justice refers to the employment of legal measures to remedy the wrongdoings of repressive regimes during periods of political upheaval. In other words, it is implemented after a society or nation has endured a war or dictatorship. It is more about overthrowing a repressive regime than about fighting.

Its purpose is to make reparations for the past in order to construct a better future and involves addressing the past without producing problems in the present or future. It is also intended to look backward in order to move forward. It is meant to address the past rather than the present or the future. Before embarking on the process, the government must ensure that society is free of all threats, as transitional justice is a promise to “never again.”

There are both pro and con reasons for transitional justice. Some argue that the past should be forgotten in order to establish peace in the present and the future, and that the past should be left in the past. They continue by stating that the past should not be resurrected.

Others, however, maintain that transitional justice is essential since the past does not remain silent and unaccounted-for or unaddressed injustices do not rest quietly. It may be suppressed, but it is impossible to make people, especially the victims, forget about it. Therefore, transitional justice is necessary to achieve lasting future peace, according to this camp.

The case for transitional justice is common and largely accepted, despite competing opinions. Consequently, if it is important and the past must be handled, the question then becomes when and how, as time and procedures can affect the outcome of the process.

The application requires sufficient time, as a delay in justice may result in even greater chaos. For instance, if a government that has been weakened by a conflict attempts to execute transitional justice in the post-conflict period, the situation may escalate due to the government’s inability to handle the resulting scenario.

In such situations, postponement rather than abandonment is essential. The government must wait until it can exert sufficient control over the situation.

Additionally, justice should be applied uniformly among those in need. For instance, selective recall and forgetting may have unfavorable results, most likely leading to future conflict.

Transitional justice is a contextual solution by definition. In other words, what is effective in one country may not be effective in another.

As a result, there is no universally acknowledged transitional justice system. Nevertheless, there are a variety of processes, such as acknowledgement, which is a psychological method for mending the victims’ wounds. It is recognition of the victims’ suffering during hostilities or repressive times in the past. Possibly, it should be the initial step before moving on to other types of transitional justice.

An independent body must investigate the severity of the victims’ suffering, which must be documented and acknowledged. In addition, the government must apologize for any errors that resulted in victim suffering. The alternative choice is prosecution.

Those responsible for committing crimes during an armed war or dictatorship shall be held accountable and punished accordingly. Punishing offenders is a means of providing justice and mending the wounds of victims and their families.

Although prosecution is required, not all offenders can be prosecuted and punished for a variety of reasons, such as the risk of destabilizing a country’s fragile peace, a country’s lack of sufficient resources in terms of economy and manpower, or the fact that prosecuting a large number of perpetrators for mass atrocities is time-consuming and may result in a miscarriage of justice.

Consequently, only the most significant offenders may need to be prosecuted.

A truth and reconciliation commission is another tool that can be utilized. The victims and their families can recover in part by learning the truth about what occurred.

The victims want to know who ordered the abuse and why they were tortured. On the other hand, family members want to know how their loved ones died or were murdered, who killed them, where they are buried, who ordered the murder, whether they are alive or dead, etc.

Knowing the truth can facilitate reconciliation between individuals, organizations, society, and institutions.

Amnesty is a crucial element of transitional justice. Amnesty is based on the idea that victims, in particular, and the general public are supposed to forget or forgive the past in order to achieve peace for the good of society or the nation.

However, there are eligibility requirements for amnesty. As indicated previously, not all culprits will be prosecuted, and some may receive amnesty. Amnesty, especially for individuals who are not major culprits, encourages their participation in the truth-finding and reconciliation process.

In some instances, a standard investigation or the judicial system may not be sufficient to unearth the truth, necessitating the perpetrators’ testimony. Therefore, if everyone faces prosecution, they may not cooperate with the process of determining the truth. o assist the process of determining the truth, it may be necessary to extend amnesty to some culprits. Amnesty may be seen as a necessary evil, even though it is painful for victims and the greater public.

Not only is prosecution and truth-finding insufficient, but victims also requiring assistance in restoring their lives. Consequently, reparation might serve as a form of restitution. It could also mean a return to the status quo prior to the crisis.

It could include the restoration of liberty, the enjoyment of human rights, monetary recompense for the harm they have endured, access to essential facilities and services, medical and psychiatric care, legal services, etc.

The government will assume main responsibility for the repair process, with the assistance of other volunteers and interested parties, such as non-governmental organizations. The government may not be able to provide adequate restitution, but it must demonstrate that it is making every effort to pay the victims.

In some cases, criminals are also involved in the reparation process and recompense victims and society.

Given that the aforementioned mechanisms are mechanisms, the question then becomes, “How do we select the mechanism?” In other words, when should any of the mechanisms is employed?

Transitions can differ based on the conditions that precipitated them. One sort of transition in which there is a clear winner and the loser is defeated or toppled is replacement.

In other words, the past regime no longer exists, and its officials have no effect on the current state of affairs. The ruling party has the authority to choose the transitional justice process in this situation.

In the event of transformation, the incumbent government initiates the transition, and there are no winners or losers. In this type of transition, it may be impossible to punish previous authorities because they are still in power and actively involved in the entire process.

In “trans-placement,” often known as a hybrid form of transition, there is no apparent winner or loser. Both internal and external collaboration contributed to the development. Reformists from within the past regime and outside players collaborate to overthrow the tyranny.

Transitioning is a difficult process due to the different mechanisms that may be used to implement transitional justice; it is vital to consider the type of transition before selecting the transitional justice mechanism that will be utilized to create effective and lasting peace.

If Ethiopia is to undergo an efficient transitional justice process, the Ethiopian government must evaluate the nature of transition as well as the nature, purpose, and different types of transitional justice procedures.

The mechanisms must then be employed as the situation dictates.

Shimelash Wondale is an LLB, MA, and LLM candidate. He can be reached at [email protected]

Contributed by Shimelash Wondale

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