Ingrid Samset

When societies go from military dictatorship to democracy or from internal armed conflict to peace, one of the toughest choices facing the government in the new order is how to deal with past violence. Great hopes have been pinned on transitional justice mechanisms, but the anticipated positive effects of transitional justice mechanisms on the process of restoring peace or (re)constructing democracy may be too high.

On 20 August, After Violence: Transitional Justice, Peace, and Democracy is featured in a literary salon in Bergen Resource Centre for International Development.

The literary salon is part of the Bergen Exchanges on Law & Social Transformation starting this week.

In the course of a mere 100 days in the spring of 1994, between 800 000 and one million people were brutally massacred in Rwanda. The genocide took place in the context of an armed internal conflict, the fighting parties being the Hutu-led government and the Rwandan Patriotic Front largely composed of Tutsi refugees. With the world watching, the United Nations pressed for addressing the atrocities. An international criminal tribunal was established by the UN alongside several national hearings called gacacas.

After periods of large-scale violence and systematic human rights violations, truth commissions, criminal prosecutions, economic and symbolic reparations, and amnesties are frequently employed with an aim to restore justice and a sense of reconciliation in societies that have been scarred by war and conflict. But does it work?

- Internationally, the gacacas have been portrayed as a success, but it is hard to say what the gacacas have meant for the average Rwandan. Rwanda is still a repressive authoritarian regime, and people who have objections to the government induced gacaca policies may very well refrain from saying so. Some fear retaliation and choose to keep their mouth shut, says Elin Skaar, senior researcher at CMI and one of the authors of the book After violence: Transitional Justice, Peace and Democracy.


Context matters

Based on case studies of four countries (Uruguay, Peru, Rwanda, and Angola) coming out of internal armed conflict or transitioning from dictatorship to democracy, Elin Skaar and her co-authors Camila Gianella and Trine Eide have developed a theoretical framework for assessing the impact of transitional justice mechanisms on peace and democracy. Their findings suggest that the success of transitional justice mechanisms in contributing to these overarching goals depends on a variety of national and international factors

- The main lesson is that general claims regarding transitional justice must be modified by context. A country’s history; the nature of the conflict itself; the state of its institutions prior to and after conflict; international pressure for transitional justice; and time are factors crucial to shaping the outcome of any transitional justice mechanism, says Skaar.

Angola, marred by a civil war that lasted for decades and ended in 2002, is one of the countries in the multi-case study. It is the perfect example of how national and international factors can impede transitional justice processes.

- Angola is at the far end of the transitional justice spectrum. The government has since the signing of the peace agreement in 1992 been unwilling to address human rights violations because it is an accomplice to the atrocities. An amnesty law passed at the same time as the peace agreement was signed has granted human rights perpetrators full impunity, and there has not been any attempt at truth-finding nor at granting reparations to victims. The only ones who have received some form of economic compensation are ex-combatants. Civil society is weak, and so are the country’s institutions, especially the courts, says Skaar.

She also points to the significance of international factors in determining the outcome of impunity for human rights violations. The United States and the Soviet Union were actively involved in the war, as were several other countries, such as Cuba and South Africa. The Cold War may have ended, but many countries still have vested interests in Angola. Its vast oil resources have arguably encouraged international partners to turn a blind eye on past as well as current human rights violations.

- Fighting and violence forms part of the collective memory of Angolans. It is therefore not surprising that people simply wanted peace to last when it finally came. Whether transitional justice processes are implemented or not, the mere absence of fighting is still a great improvement over war. The prerequisites for establishing transitional justice mechanisms simply have not been present in Angola, says Skaar.


Immediate effects are unlikely

Transitional justice mechanisms may promote peace and strengthen democracy, but there is no magic bullet. Depending on context and subsidiary conditions, these mechanisms can affect peace and democracy in different ways.

- A quick look at the statistics will tell you that there is a positive correlation between legal settlements for past violations and the rule of law, but such analyses have many flaws as they rarely take into account the degree of peace and democracy, says Skaar.

For peace and democracy to be fruitful concepts in an analysis of the impact of transitional justice mechanisms, they have to be understood as a continuum: To put it simply, democracy evolves from low to medium to high. Peace evolves from negative (i.e. the absence of large-scale violations) to liberal to positive (i.e. societal reconciliation among warring parties).

- There are potential positive and negative impacts on democracy and peace for all of the most commonly used transitional justice mechanisms, says Skaar.

Amnesties may facilitate the transition to peace and democracy in the short run, but amnesties can have a detrimental effect on justice. In Uruguay, the amnesty law passed in 1985 at the time of democratic transition was endorsed through two referendums. The country finally, in practice, got rid of its amnesty law in 2011, thus opening up for criminal prosecution of alleged human rights violators.

Despite challenges and mixed experiences of the four countries examined in this co-written book, Skaar argues that it is too early to conclude about the effects of transitional justice mechanisms.

- Rwanda’s genocide took place 1994. The civil war in Angola ended in 2002. In a long-term perspective, the conflicts in Uruguay and Peru, which are also part of this study, are also part of contemporary history. Democracy and peace have arguably to a large extent been consolidated Uruguay and Peru. In Rwanda, by contrast, there is a ways to go. Yet, transitional justice mechanisms may very well contribute to strengthen democracy in the long run, says Skaar.