By- Harshpreet Kaur.
Peace-making at the places of wars, brutality and savagery has never been an easy task. Countries which do not have decent past experiences, when shift from an authoritarian regime to democratic form of government go through many striking changes. When any undemocratic country democratizes, then not only political transformations take place but a major drift from an unjust society to the community which demands for justice is also seen. At times of such transitions, there are numerous challenges faced by the government officials. They need to gain the trust of the common people, major proportion of whom are the victims of past atrocities. Countries which have been under the rule of dictators, imperial rulers, colonies, authoritarian governments, etc. have seen the worst of their lifetimes. Large scale genocides, rule of corrupted officials, social exclusion and gender inequality were some of the common day-to-day practices under existing powers. But, as the knowledge enhanced, the minds grew and people started thinking rationally; then emerged the demand for a people-loving democratic government. When such countries chose to set up democratic form of government, none of its citizens would have imagined the challenges in front.
Transitional Justice is put to use at these times of transitions. It can be explained as any judicial or non-judicial way which is used to address the legacies of human rights at the national and international levels. The people who have suffered under the rule of subsisting powers have full-fledged right to receive justice. Unless and until they are granted justice, it would be difficult for common people to ensure their trusts on the upcoming government. So, what are the major challenges faced at times of transition? How the newly formed government copes up with these? What are the mechanisms and strategies adopted to secure trust of the citizens? Is it really worthy to punish someone for something they did in past? And finally, is this way of closure before beginning of new government is actually fruitful or not? All these questions and queries have been descriptively discussed and answered below.
WHAT IS TRANSITIONAL JUSTICE?
Transitional Justice represents a set of extraordinary responses, often delivered during junctures such as transitions from war to peace or from authoritarianism to democracy. Transitional Justice is meant to both redress gross violations and identify avenues to address the structural causes for those violations, such as gender inequality and social exclusion. While transitional justice includes criminal accountability, it is undergirded by a broader understanding of justice that takes into account a range of victim needs and societal priorities.
Transitional justice is necessary so that the sustainable development goals do not leave behind communities in countries that have experienced massive right violations, according to the International Center for Transitional Justice (ICTJ). The core feature of transitional justice is to build a new government on the basis of faith and trust of the citizens of the country by providing them justice for their sufferings. It aims at halting the trend of human right abuses and create a safer place for people to live in.
The previous culture of human rights violations can only be discontinued by investigating past crimes, i.e., truth-seeking by forming truth commissions. By identifying that who is responsible for human rights violations, we can impose sanctions on those responsible perpetrators.
Majorly, there are four main measures to address justice to the victims. These include-
· Truth Seeking.
· Criminal Prosecutions.
· Civil damage actions such as reparations, impunity and reconciliation.
· Amnesty for pe
PEACE V/S JUSTICE
At the time of drifting from one form of rule to another form of rule, there may be some people who value peace more and would settle for amnesties and impurities; while, on the other hand, some groups of people can demand for more severe punishments in order to favor justice more. Now, the views of these two schools of thoughts clash when it comes to a mutual consensus agreement. Since the emergence of transitional justice, it has encountered uncountable challenges such as identifying victims, their frauds and then deciding whether to punish them harshly or settle for just arbitration or reconciliation.
As already had been noted, that the journey period to reach democracy promotes accountability for past abuses without risking a smooth transition to a newborn fragile government. The dilemma still remains constant that whether one should aim at promoting truth, justice and punishment or one should emphasize on forgiveness, healing and moving on. To be clearer with this confusion, we must put our feet in the shoes of both power holders and victims. A victim who had tolerated great malfeasance will always seek for more cruel ways to punish the offenders and a power holder who is aiming to create a peace promoting society will look for more lenient ways of redressal. But the truth that stands inevitable is that “WE TRADE ONE CHAOTIC SITUATION FOR ANOTHER” which means that the past must be addressed to reach out to future. Thus, even if there are clashes and disagreements relating to the idea of transitional justice, then too, the end result is worth the effort.
PUNISHMENT SHOULD BE PROPORTIONAL TO OFFENSE
The most important point that needs to be mentioned is that punishment should always be set according to the extent of the crime. One cannot be hung for not returning money on time and one cannot be granted impunity for committing a murder. The alternatives such as restorative justice or retributive justice can be adopted in cases of less severe crimes. Putting an offender from one grievous situation to another can never improve the condition. If any culprit is directly put into prison for the very first mistake of his life which is also not very serious, then he will again commit the same crime the very next day he comes out of the jail. So, the ultimate solution to better the situation is to maintain a proper balance between the offense and the sentence. An effective system not only knows how to ameliorate today but also knows how to strengthen tomorrow.
STEPS TO ENHANCE THE WORKING OF TRANSITIONAL JUSTICE
1. STEP-1- FINDING THE TRUTH
Firstly, the truth needs to be found out. Seeking of truth encompasses allowing investigating groups to thoroughly examine the past abuses and seek redress for victims. This step enables societies to prevent recurrence of human rights violations. Truth commissions need to be set up for working for the same. These are non-judicial bodies of inquiry that aim to discover and reveal past atrocities by state or non-state actors.
2. STEP-2- DECIDING THE WAY OUT
Secondly, the step that needs to be followed is to decide where to settle. The aggrieved wants criminal prosecution or impunity or lustration or vetting or amnesty or reconciliation or all of them. It is quite a hectic task to decide the punishment for the offender. And in the countries where the perpetrators have got financial and political support, then it becomes way too difficult to take a legal action against them. Then, emerges the need for innovations.
3. STEP-3- INNOVATION
Here, innovation means to create more variety of responses to offenses. While some aspects of transitional justice might be well established, sound analysis can also lead to thoughtful innovation. It may be the case that in some cases of redressing massive human rights violations, the pre-existing conventional concepts do not fit in. Contextual analysis, getting right interventions for that context, and promoting participation are the basic elements of the idea of innovative approach of transitional justice.
4. STEP-4- REDRESSAL
The most necessary step to accomplish the basic essence of just government is the redressal. It means putting penalties or giving punishments for any wrong committed in the past. Redressal can be done through many ways such as providing amnesties, criminal prosecution, vetting, lustration, impunity, etc.
5. STEP-5- PEACE MAKING AND TRUST BUILDING
The final step to establish a democratic government in any post-war country is to maintain law and order of the country, have peace all around and building of trust in the eyes of common people. The period of transition sees major notable changes even at minutest levels. In order to have the sense of honesty and faith between the government and citizens, the trust needs to be maintained from the start. If the government provides them with legitimate judicial or non-judicial strategies to obtain justice, then the common people will be able to gain confidence for their new leaders.
IS IT ACTUALLY WORTHFUL TO TOUCH THE PAST INCIDENTS?
In any nation, which is aiming to build a strong empire in future and is working enthusiastically for achieving this in present; is it really fruitful to turn back and look into the matters of the past? It is always said that, one must always live in the present, work for the future and LEAVE THE PAST BEHIND. So, what is the value of this concept of transitional justice which wholly focusses on the atrocities and abuses faced by the people in the past times?
In order to get an appropriate answer, we need to look for the reasons behind the necessity of addressing the past events, learning from them and moving on. One can never move on in a positive direction if he/she still dwells in the past memories or flashbacks. A proper closure can only be done if we are ready to confront the facts and use them to empower ourselves for future endeavors. Genuine reforms and redressals shall allow the victims to forgive the offenders for all the wrongs they have committed. If there are no guidelines for addressing past brutalities such as genocides, murders, fake encounters, etc. then surely, it will be impossible for a common man to stay in that country which cannot even provide them justice. The core value of transitional justice does not necessarily focus on criminal justice, but this is actually linked with the building up of more peaceful, certain, safe and democratic future.
At the end, what stays is what we have worked for. The only difference between an “extraordinary” and “ordinary” achievement lies in the word itself, i.e., the extra efforts we put in for gaining that. Similarly, the concept of transitional justice accomplishes its very basic ethos of community building based on a peace agreement between the government and citizens; only in those countries who put some extra efforts in constructing that. In this write up about transitional justice, I have defined the term at first. And, my main aim was to rethink the basic ideologies regarding transitional justice. I have tried to evaluate its concept from a newer point of view. I have focused importantly on steps and mechanisms that can be adopted for the smooth functioning of transitional justice. Secondly, I have tried to direct views of sight of readers towards reconsidering the notion of past management and its necessity.
“CHANGE IS NEVER EASY, YOU FIGHT TO HOLD ON, AND YOU FIGHT TO LET GO”
But the universal truth is that change is an inevitable part of the society. Social and political changes involve adjustments and alterations at each and every level of society. When any country reorganizes and remoulds the pre-existent framework of the government, then it undergoes various challenges. But still transitional justice shows no signs of decreasing in use. Indeed, this makes transitional justice viable, especially in this age of state-building and democracy promotion in post-conflict societies.
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