By Dr. Ingrid Roestenburg-Morgan
Dr. Ingrid Roestenburg Morgan is a Senior Research Fellow with the Institute for Justice and Reconciliation.
What is Justice? This is a question that I would like to open up for thought in this special edition of the R2P Student Journal that addresses the topic of traditional justice, mainly in light of the transformative context of transitional justice but equally as important in light of the 20th anniversary of the International Criminal Court’s Rome Statute, both of which have dealt with the concept of justice in varying ways. The International Criminal Court (ICC), for instance, determines that justice means “the ending and preventing of impunity of serious crimes” through prosecution (Article 4, Rome Statute, 1998). This is in line with the Preamble of the Rome Statute and in line with article 53 of the Rome Statute (OTP Policy Paper, 2007, pp. 8-9). In other words, the ICC makes it clear that justice should not be relegated to moral or practical disagreements of the term, but rather to the law which is the Rome Statute. Transitional justice proponents on the other hand see justice as “the full set of processes and mechanisms associated with a society’s attempt to come to terms with a legacy of large-scale abuse in order to secure justice, achieve accountability and achieve reconciliation” (Annan, 2004, p. 4). In other words, transitional justice proponents rely on both judicial and non-judicial processes to successfully realise justice needs for post-conflict societies and their citizens (Villaba, 2011).
These differing views on justice effectively open the meaning of the term to scrutiny and debate. From current postmodern viewpoints many theories substantiate these variations and often hold that the concept of justice is open to some degree of personal interpretation (Young, 1997). Justice is thus open to change, critique and the diverse accommodation of social forms, meaning that the term cannot mean the same thing to different people, races, cultures, groups or societies (Young, 1997). For instance, justice could mean something very different to a person who has faced an ordinary crime in a context of normality, in comparison to a person who has faced massive and atrocious crimes in exceptional contexts of transition (Uprimny and Saffon, 2006). Justice also holds differing and varied connotations for societies on the brink of transition in comparison to societies which have remained in peace for years or decades (Mbeki and Mamdani, 2014).
Currently however, it is generally understood that the term justice represents morality, ethics, rationality, law, religion, equity and fairness, and that the two most important variations or discourses that pervade contemporary criminal justice processes are the retributive and restorative justice models (Rawls, 1981). The right to justice, as we currently understand it, basically means that individuals must have the ability to have effective access to justice, which forms a fundamental part of the rule of law (American Bar Association, 2018). Where access to justice is not readily available, victims in particular are at a disadvantage, because they cannot exercise their rights nor challenge any type of discrimination effectively enough (American Bar Association, 2018).
Currently, there is a presumption that justice can be best secured primarily through a retributive system advocating for prosecution and punishment (Moscati, 2015, p. 9). However, considering the complexity of post-conflict societies, where often the role of victim and perpetrator are switched during conflict and where roles have become blurred during ongoing hostilities, ensuring adequate access to justice for both victim and perpetrator is no easy task, and a purely prosecutorial or retributive approach to justice may not in each and every instance be suitable (Morgan, forthcoming, p. 141). This would be the case especially if prosecutions threaten to undermine or destabilise a country or if they threaten to marginalise or disempower the main stakeholders in the justice process, such as victims (Morgan, p. 141). As a result, more holistic approaches to justice have been advocated for, where in some instances both retributive and restorative elements of justice feature (Villaba, 2011). The interaction and interdependence of both theories of justice has accordingly paved the way towards the discipline of transitional justice as we know it today where, because they face complex internal disputes, states are burdened with the responsibility of moving their societies from chaos to stability. As a result, states are expected to find the right reconstructive measures to secure peace, reconciliation and justice for successful transition to take place (Morgan, p. 141).
In the context of Africa, transitional justice has essentially found its roots in the use of traditional justice. Since the 1990s there have been a plethora of judicial and non-judicial mechanisms employed by African states, which very often featured restorative tenets of justice such as forgiveness, friendship and compassion between victim and perpetrator, thus mimicking transitional justice as we know it today (International Peace Institute, 2013, p. 27). These justice mechanisms have been referred to by a variety of names including traditional justice mechanisms, alternative justice mechanisms and local justice mechanisms. The goal of traditional justice mechanisms as understood from an African perspective must be seen to secure reconciliation and national unity by drawing on cultural or religious linkages (Morgan, p. 141). Examples of the latter mechanisms include several truth commissions that have been employed in various African countries such as in Uganda, Zimbabwe, Nigeria, Ghana Sierra Leone and South Africa over the years. Other examples include Gacaca courts in Rwanda, Magamba spirits in Mozambique, Mato oput in Northern Uganda, Kpaa in Sierra Leone and Bashingantahe in Burundi (Huyse, 2008).
The purpose of using such mechanisms has essentially been to address large-scale justice needs, keep the cost-effectiveness of the justice system in check, and most importantly ensure that political reconciliation is achieved as a final goal (Huyse, 2008). But these objectives alone do not necessarily suggest that traditional justice mechanisms provide an adequate measure of justice to victims and survivors of mass atrocities undergoing transition, especially when the context of violence far exceeds crimes that would ordinarily occur on a regular basis (Morgan, p. 141).
Proponents of traditional justice mechanisms nonetheless have stressed the inclusiveness of such systems, which incorporates both victims and perpetrators within the justice process so that these main stakeholders can meaningfully engage and further empower survivors of mass violence. This in turn is beneficial in that it enhances the legitimacy of the justice system in place (Morgan, p. 141). Many of these mechanisms have also been praised for their participatory nature, their flexibility to include both restorative and retributive strands of justice, their high level of truth telling, their ability to secure ‘negotiated settlements’ essential for maintaining peace, the practical implementation of the judgments handed down, and also the very important space that rituals create for discussion on accountability, guilt and restoration (Villa-Vicencio, 2002).
However, based on my recent research into the role and value of such systems it has become clear that these justice mechanisms may function more effectively if they contain elements of both restorative and retributive strands of justice rather than only restorative elements alone (Morgan, p. 141). My findings reveal that purely restorative models of justice will not be able to meet victims and survivors’ justice needs in contexts of mass violence simply because perpetrators wield a diminished sense of personal, moral and legal responsibility characterised by the type of crimes they have committed, where in comparison to ordinary crime, the scale, nature, gravity, and the manner in which the crime has been committed is exceptional (Morgan, p. 141). Furthermore, not all victims find themselves in a position to pardon or forgive their offender, a requirement that is often implicit in a restorative system of justice that functions without any retributive strands (Morgan, p. 141). Additionally, states have a further obligation under international law to prosecute perpetrators of mass atrocities in order to prevent similar crimes from occurring on their territories in the future. In this way, they cannot violate their legal and human rights obligations and thus prosecution is difficult to forego in light of these international obligations (Orentlicher, 1991).
Thus, in order for traditional justice mechanisms to be of value within the transitional justice landscape they would need to undergo “revision” with some form of prosecutorial option at hand to meet the tensions between tradition and modernity. Indeed, complications arise when these justice mechanisms become subject to scrutiny at the international level when for instance they are accompanied with blanket amnesties for perpetrators or when they cannot supposedly meet due process standards of the law (Morgan, p. 141).
At the level of the ICC, this would further suggest that states who proffer the use of traditional justice mechanisms in a challenge of admissibility would need to overcome certain limitations; namely that the justice system in question must meet the requirement of genuineness as elaborated under the ICC’s principle of complementarity as per article 17 of the Rome Statute, and that furthermore such a mechanism should ensure a level of due process of the law (Morgan, p. 141). In terms of the genuineness requirement, this would mean that a mechanism set up hastily and entirely for political reasons without a genuine bona fide intention on the part of the state in question will not qualify. So, for instance, a mechanism set up to shield an accused under the guise of justice to ensure political reconciliation will not qualify under ICC standards if the intention of the state in question to set up such a justice system is only for political purposes and/or to shield the perpetrator from justice and/or to fail to secure justice as an end goal (Morgan, p. 141).
In terms of due process standards, many scholars have been concerned with whether such mechanisms actually need to guarantee a defendant international due process standards. According to my findings, nothing under article 17 requires a state to guarantee international due process of the law, especially because most states parties in a challenge of admissibility would not in reality be able to satisfy such standards. In fact, a proper interpretation of article 17 renders that most states should have a minimum guarantee of due process in place at the national level, which should be afforded to a defendant in order to qualify such a mechanism at the level of the ICC (Morgan, p. 141). Thus, in this regard, the ICC may offer some measure of leeway. Essentially, the quality of justice will be assessed by the ICC as a whole, considering the broader political implications that these justice systems hold individually for victims and survivors and separately for the country on the whole (Morgan, p. 141).
So, in closing, the benefit of traditional justice for transitional contexts may be meaningful if such mechanisms can address both societal reconciliation, which is arguably one component for justice for survivors, and then individually target the justice needs of survivors, contingent of course upon a prosecutorial option being included within the framework of such a mechanism (Morgan, p. 141). When both these tiers of justice can be adequately satisfied then such a justice mechanism may be considered valuable by the ICC. Equally of importance will be the value of these mechanisms to victims and survivors of mass violence, and thus to transitional justice on the whole (Morgan, p. 141). In other words, the use of traditional justice mechanisms in light of the aforementioned assessments should not necessarily be dismissed prematurely based on their often romanticised cultural and religious linkages, but rather they should be thoroughly assessed on their merits and ability to genuinely support both societal reconciliation and individual justice needs, thereby qualifying a deeper definition of justice that post-conflict societies must ensure in general.
 Due process includes amongst others the right to counsel, the presumption of innocence, independence and impartiality of judges, right to an adequate defence, the right to testify in one’s defence, the right against self-incrimination, the right to be present at one’s trial, the right not be arbitrarily detained and protection from double jeopardy.
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