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What is happening in the fields of Ukraine, becomes a reason not to abandon the project of transitional justice, but a challenge to envision routes toward it. Instead of focusing on discrete scenarios, we may need to examine what lays beyond the current center of attention. Truth-telling based on comprehensive documentation as well as establishing consequential discourse are necessary to learn from the past and prevent future escalations.
From a practitioner’s perspective, the concept of transitional justice is useful because it helps to tackle intractable problems. Indeed, from the standpoint of purely legalistic or moral arguments, the tension between negotiating peace and seeking justice, the confrontation of radically different versions of the past, the impossibility to truly restore the well-being of victims, the cyclical nature of violence in deeply divided societies are problems without a solution. The concrete conditions in the terrain, and the political will of key agents, tend to relativize the abstract norms of justice, causing deep dissatisfaction and cynicism.
Transitional Justice deals with these problems in two ways: by widening the spectrum of what can be considered “justice”, and by interrogating the clash between abstract legal norms and political realities. By expanding the types of measures available beyond the confines of criminal justice, it becomes possible to implement truth commissions or reparation processes, for example. These other measures do not deny the need for criminal accountability, but create different routes toward it when trials are unavailable immediately. By accepting that justice is not an abstract state of things, but the result of concrete political conditions, rule of law becomes a strategic goal requiring progressive and complementary measures over time.
By providing a larger definition of what “justice” is, the South African transition after Apartheid was able to inspire many other processes around the world, and generalized the use of truth commissions. By setting up long-term strategies, Southern Cone countries successfully eroded and eventually derogated amnesties that enshrined impunity. By using both avenues, the Colombian peace process has established an integral system of institutions focused on all the components of transitional justice, and gained support for a negotiation producing imperfect, yet practicable measures.
From this perspective, what is happening in the fields of Ukraine, becomes a reason not to abandon the project of justice, but a challenge to envision routes toward it. The reality of a European war between states puts political and humanitarian elements squarely in the international agenda, but the instruments of transitional justice have been invoked from day one.
Just days after the Russian invasion, the Prosecutor of the International Criminal Court announced that he would expand his current investigation which started with reference to the events of 2014, to include the current escalation. The discussion around international prosecution is now expanding beyond war crimes and crimes against humanity to use fully the Rome Statute, including the definition of aggression, so that indictments against senior Russian and Belarussian officials have been proposed. In fact, the notion of genocide has now become seriously discussed, as the intent behind the tactics Russia is using in Ukraine. In fact, the question of reparations is being discussed, not as a remote measure in a post war future, but as a practical option today, using the Russian foreign reserves, frozen in the banks around the world.
A legal and political discussion around options for justice and reparation, as the conflict is raging and undecided is deeply significant, but it in no way exhausts the repertoire of transitional justice. The biggest challenge may be the question of establishing the truth about this conflict, on the basis of comprehensive documentation. Propaganda has always played a role in armed conflict, distorting the events to justify the parties, but current day techniques, with the aid of social media are massively effective. Individuals no longer seek information, but it is information that targets individuals with the help of algorithms, artificial intelligence and massive amounts of information, so that specific swathes of the public can be persuaded.
In scenarios where every community has its own version of events, truth-telling is intrinsically difficult, but the communicative circuits activated for certain narratives used to be relatively slow, requiring generations to consolidate. Truth commissions had the advantage of a dramatic and cathartic shock disrupting pre-existing narratives and motivating informed public debate. In an era in which disinformation is a highly technological enterprise, and global leaders made “fake news” a banner of identity, truth-telling will be both more difficult and more necessary.
In fact, truth-telling is always an urgent precursor to any credible prosecution or fair reparation process and, in that way, it attests to the problem-solving nature of transitional justice. Instead of throwing up arms at the fact of yet another brutal conflict, that the international community failed to prevent, the transitional justice method consists in putting apart the clockwork mechanism: how to document the events, how to use the information thus obtained, how to build cogent and consequential arguments.
Over a quarter of century ago, Michael Ignatieff articulated a dictum that became a paradoxical sum of ambition and realism. Truth commissions, he said, did not really establish the truth so that it would be universally recognized in a society; they merely narrowed the range of permissible lies, they established parameters for the public discourse. Although Ignatieff’s point focused on truth commissions, still a novelty in the 1990s, it has become a useful reminder of what transitional justice as a whole may catalyze: a purification of the societal arguments, not conceding the field to arbitrary power, but also as a call for systematic problem-solving, a protection against despair.
Writing in dark times, a German philosopher said that the angel of history perceives the past, not as a chain of events, but as one single, continuous catastrophe. Instead of focusing on discrete scenarios, we may need to bring attention to what lays beyond the current center of attention: conflicts frozen in Myanmar or Syria, crises kept in obscurity from Nicaragua to Mexico, the emerging catastrophe in Tigray need to evoke the same horror of Ukraine.
The cultural structures deciding what is considered relevant puts Ukraine in the center of attention today. But the formidable and fast activation of transitional justice proposals in that case, just weeks into the conflict, show what is possible in all scenarios, if only transitional justice practitioners applied the same creativity, effort and urgency.