Thinking about transitional justice

In 2004, the United Nations Secretary General’s Report on the Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies described transitional justice as the “full range of processes and mechanisms associated with a society’s attempt to come to terms with a legacy of large-scale abuses committed in the past, in order to achieve accountability, serve justice, and achieve reconciliation.” Initially conceived in the context of transitions from authoritarian regimes to democracy, the relevance of transitional justice eventually evolved to include transitions from armed conflict to post-conflict contexts and as such, it has become integral to peace processes.

The International Center for Transitional Justice ( ICTJ) recently came out with the book entitled Justice Mosaics: How Context Shapes Transitional Justice in Fractured Societies that argued the imperative of understanding context in advancing transitional justice. Accordingly, it notes the importance of contextual variations as they point to the fact that there is no “one-size-fits-all” formula and advocates for the use of contextual versus formula-based approaches. In examining various country cases and experiences, the study identified four main contextual factors namely, institutional context, conflict context, political context, and underlying social and economic structural problems.

Foremost, institutional context includes national and local formal institutions that can enable or hinder transitional justice processes. Where institutions are strong and able to deliver programmatic initiatives such as reparations and criminal trials for massive human rights violations, then the realization of transitional justice is more likely compared to having weak and corrupt institutions that have no interest or capability to do the same. Furthermore, an institutional environment that is open to reforms — such as institutionalizing the practice of vetting, undertaking the establishment of critically needed institutional entities, and supporting the crafting of appropriate policies and laws, among others — enables the realization of transitional justice.

The second contextual factor is the context of conflict which pertains to the understanding the nature, type, and root causes of conflict, the actors involved in the conflict, and the identification of massive human rights violations or violence committed as they relate to developing transitional justice mechanisms. Achieving formal peace through signing of peace

agreements meant to provide frames to address the conflict is a progressive step in the transition to peace. However, violence, crimes, and human rights violations may continue despite the achieving formal peace and thus risk gains made in the transitional justice process. In this regard, it is thus important to take stock of coalescing (i.e. vertical and or horizontal) conflict actors and alliances between armed groups and organized crimes that can pose many challenges to realizing transitional justice in order to take appropriate initiatives.

Political context, on the other hand, refers to the nature of political settlement. In the case of armed conflict, the key element would be how it ended ( either through a military victory or a negotiated agreement) and what the resulting power relations would be in the post- conflict society. The results of political bargaining — particularly, those that pertain to accountability measures — contribute to the concretization of transitional justice. The imperative is to address impunity for human rights violations that have been committed by parties to the conflict while at the same time, expanding the understanding of these groups ( who may have perpetrated violence), are also agents that can contribute to transitional justice initiatives. Other actors relevant in the political context are civil society organizations that push for transitional justice measures as well as international institutions that advance compliance to international standards and mobilize/ provide support to transitional justice efforts undertaken.

And lastly, underlying social and economic structural problems point to the structurality of violence that may be direct (as in the case of gross human rights violations) and embedded (as in the case of laws, policies, and practices that fuels inequality, discrimination, and marginalization). Related to responding to this context from the lens of transitional justice is the notion of transformation — how to address socioeconomic problems that fueled the conflict situation in the first place. In fact, the 2011 UN Secretary General’s Report on the rule of law and transitional justice confirmed the need for transitional justice to support the realization of economic and social rights.

In the Philippines, transitional justice was an integral provision the peace agreement between the Philippine Government and the Moro Islamic Liberation Front (MILF) — specifically, in the Normalization Annex of the Comprehensive Agreement on the Bangsamoro ( CAB) — that provided for the establishment of the Transitional Justice and Reconciliation Commission (TJRC). In March 2016, the TJRC launched its Report detailing its findings on historical injustice, legitimate grievances, human rights violations, and marginalization through land dispossession in the Bangsamoro as well as providing an in-depth analysis using the “dealing with the past” framework and advancing general and specific recommendations to respond to the right to know, right to justice, right to reparation, and guarantee of nonrecurrence. Unfortunately, not much has been done to move closer to the realization of transitional justice.

Although there had been efforts to popularize transitional justice — such as dissemination of the TJRC Report to various stakeholders, forums, and constituency-building for grassroots communities by civil society organizations and orientation/capacity development for national and regional agencies led by international institutions — it has not gained the traction it needed. Worst, the very “idea” of transitional justice does not seem to make sense in light of current circumstances — the war in Marawi as related to violent extremism and the issue of extrajudicial killings as linked to the so called “drug war,” to name a critical few. Despite an on-going initiative to craft a road map for transitional justice in the country, not too many seem to know, understand, or even pay attention to the salience of transitional justice and the potential it offers to heal our country from the lived historicity of violence. Maybe a systematic step is to examine the contextual factors relevant to the Philippines and see how transitional justice can move from there.

The very “idea” of transitional justice does not seem to make sense in light of current circumstances — the war in Marawi and extrajudicial killings in the so called “drug war,” to name a critical few.