By Molly Morley
I came into the symposium with little to no knowledge of transitional justice. My background is in the development of governance structures. In today’s session with Carolyn Edgerton, we discussed the challenge of having competing justice systems post-conflict – one for national criminal justice and one for transitional justice. The question that struck me is, why? Why not implement transitional justice via existing or rebuilt judicial systems?
The widely promoted approach to governance in post-conflict transitions is to build capacity from the bottom up. Distribution of aid, the rebuilding of infrastructure, and economic revitalization programs should all be conducted via local and national governance systems to build their capacity to provide public services long-term.
In contrast, the popular approach to transitional justice is to establish justice mechanisms outside of the local justice system. I think this is not so much an issue with transitional justice, but with criminal justice systems not having punitive measures appropriate for transitional justice. The punitive measures for transitional justice can include amnesty or lighter sentences to encourage admissions of guilt or apologies to help the victims’ healing process. Criminal justice systems rely on more traditional punitive measures, such as prison sentencing or probation, and place less of an emphasis on victims’ needs.
I would argue, however, that transitional justice and judicial reform should follow the governance model and occur as a post-conflict rebuilding process. Traditional judicial systems could incorporate proven transitional justice methods and use overall systems as a model for reform. This would improve some of the shortcomings of traditional judicial systems and allow transitional justice to occur through the local and national court system, building local capacity.
The greatest shortcoming in traditional judicial systems is the proven inefficacy of its punitive measures. Significant research has demonstrated that serving prison sentences does little to mitigate recidivism. In many cases it encourages it. The incorporation of a holistic punitive and reintegration approach modeled after transitional justice could provide an opportunity to establish a progressive judicial system in place of methods proven to be ineffective. IPSI and our symposium instructors encourage us to push the boundaries of the “best” approaches to post-conflict transition. Why not use transitional justice to both address victims’ needs and correct the wrongs institutionalized in traditional approaches to justice?