Armanshahr/OPEN ASIA Report: How and why truth and justice have been kept off the agenda; A literature review on transitional justice in Afghanistan, Nov 2015

“However tall a mountain, there is a route to its peak”
Afghan proverb



28 September 2015. The symbolic seizure of Kunduz by the Taliban in Northern Afghanistan surprised many observers; after weeks of fighting and the tragic loss of civilian lives, the Taliban withdrew. For sure, these events were a strong reminder that the Afghan conflict has no ended with the fall of the Taliban regime in 2001, far from it. A situation that explains to a great extent why the Afghan people are now extenuated and yearn for security and peace. But what is needed for this to happen? Proponents of transitional justice – or justice in countries in transition to “peace” or “democracy” – argue that there can be no peace without justice. The problem is that transitional justice is off the agenda in Afghanistan. This report, which includes some theory and a comprehensive literature review on transitional justice in Afghanistan, aims to present an overview of challenges and opportunities, which Afghan people and the international may take into account or make use of, in order to restore the great promises of transitional justice, i.e. peace but also a sense of truth, justice and dignity for the victims.

What is transitional justice?

A brief history of transitional justice

Most measures associated with transitional justice are nothing new but where to start a history of this field is no easy question. One thinks of the Allies’ precedent-setting trials of Nazi war criminals at Nuremberg, the post-junta human rights policies in Argentina in 1983, or truth and reconciliation efforts in South Africa from 1994. The term actually began to emerge from the late-1980s to the mid-1990s as a device to signal a new sort of human rights activity and a response to concrete political dilemmas human rights activists faced in what they understood to be “transitional” contexts; the ending of repressive regimes in Latin America forcing a shift in strategy and thinking. The transmission and acceptance of the phrase was most significantly aided in the mid-1990s by the publication of a four-volume compendium entitled Transitional Justice: How Emerging Democracies Reckon with Former Regimes in 1995. Importantly, the structure of the volumes suggests that transitional justice was a fully formed and rather well-understood set of practices by 1994 – so much so, that one could compile a “neat list of transitional justice measures that might arise in undertaking them, including commissions of inquiry, prosecutions, lustration or purges, and restitution or reparations programs”.

The United Nations historical document The Agenda for Peace set the foundation for comprehensive peace building processes that move beyond managing conflicts with peace keeping. Beginning with resolution 1040 (1996), in respect of the situation in Burundi, and in numerous resolutions since then concerning countries undergoing transitional processes, the Security Council has called for the restoration and maintenance of the rule of law and established peacekeeping mandates with rule of law components that include the implementation of transitional justice measures. The 1997 publication of a UN-commissioned report on combating impunity known as the “Joinet Principles”, which advocated for the rights to know, to justice, and to reparations, was also a signal event in this regard.

In the meantime, the field of transitional justice has evolved and been adapted to various contexts. Initially applied to situations of transition from authoritarian rule to democracy in Latin America, Eastern Europe, and South Africa, it has been progressively applied in contexts where the transition was of a different nature, mainly post-conflict situations (such as in Sierra Leone, Timor Leste, Liberia, or Nepal) and, more recently, in ongoing conflicts (such as in Colombia, Afghanistan, and the DRC). There have been approximately 40 truth commissions to date. Their common objectives include accountability, official acknowledgement for crimes of the past and for victims’ experiences of these crimes, establishing an inclusive history and citizenship, identifying victims for reparations, making a moral/symbolic break with the past, contributing to the development of a culture of respect for the rule of law and human rights, making recommendations for institutional reforms, and serving as a platform for nation-building and reconciliation.


Approach to transitional justice

Transitional justice has been the focus of growing attention in recent years, including through the work of international and hybrid criminal jurisdictions, truth commissions, national courts and local reconciliation efforts, which all enabled individuals, communities and nations to respond to the atrocities and abuse arising from war. Nevertheless, there is no single theory of transitional justice, nor does the term have a fixed meaning. The Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, whose mandate was established in 2011 by the United Nations to cover the field of transitional justice, defines it as a “set of processes with four inter-linked aims: recognizing the suffering of victims through documentation, truth-seeking and symbolic measures; holding perpetrators accountable and ending impunity through retributive and restorative justice methods (these can include prosecutions and reparations); laying the ground for institutional reform through disarmament, security sector reform and vetting; and reconciling through all the above and additional measures”. In a 2004 report by the UN Secretary General, transitional justice is defined as comprising the full range of processes and mechanisms associated with a society’s attempt to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation. Other definitions add more elements – such as the contribution of transitional justice to social reconstruction – but eventually cut across the above ones. Comprehensive national consultations, particularly with those affected by human rights violations, have been recognized as a critical element of transitional justice, while commissions of inquiry are seen as possible important precursors to transitional justice mechanisms.

The term ‘transitional justice’ does not refer to a special kind of justice, and even less a form of soft justice, but to a strategy for the achievement of a “legally grounded understanding of justice”, that is the realization of the rights to justice, truth, reparations and guarantees of non-recurrence in the aftermath of gross violations of human rights and serious violations of international humanitarian law. These measures work best when designed and implemented in relation to one another. It is also usually a matter not of choosing between measures but of appropriate sequencing. Besides, transitional processes are dynamic, meaning that besides allowing for suitability to context, the design of the policies to implement transitional justice elements should take into account fittingness to a certain stage in a process. Thus, what is necessary and feasible for prevention, changes over time, not only as institutional characteristics change, but also as the horizon of possibilities shifts.

Transitional justice measures, for example truth-seeking initiatives, can be used preventively to identify and respond to risk factors for violence and human rights violations; and they can also contribute to restoring trust. Trust, which is often lacking in post-authoritarian and/or post-conflict settings, is the foundation for the development of a rule of law culture, an environment that fosters reconciliation and a necessary precondition for effective communication between the victims and the authorities, as well as within society. Finally, transitional justice measures contribute to the promotion of a transformative form of justice, by seeking to address not just the consequences of violations committed during conflict but the social relationships that enabled these violations in the first place. In other words, transitional justice has moved the purpose of justice from being principle- or duty-based to being results-based.

Transitional justice in conflict settings

The key argument of those who do not support transitional justice in general, is that it cannot be implemented in contexts where peace has not been fully restored. From this viewpoint, in order to move forward with transitional justice, violence has to end and the causes of instability and insecurity be addressed as a priority. While there is no firm evidence about this, it is true that transitional justice initiatives have not taken into account or much analyzed the significant differences between the post-authoritarian contexts, where the model of transitional justice originally took shape and the situations of post-conflict and fragility in which it is now predominantly implemented. Empirical evidence from numerous post-conflict transitions also provides no clear answers about the relationship between truth-telling, accountability and reconciliation and a nation’s prospects for avoiding renewed conflict, and there are few examples of instances in which victims got justice when the guilty were still in power, and that impunity was as firmly entrenched as ever.

The transition paradigm has also regularly been perceived as too tainted by a specific political project (democratization), implying that the term “transitional justice” should be abandoned, and replaced with something along the lines of “mass atrocity” justice. The attempt to shift meaning in this way could make sense given the immense expansion of international principles and law on these issues since the late 1980s, and the emergence of an “anti-impunity” movement, which, though related to transitional justice, has a different history and conceptual background. Some also argue that transitional justice has become one among many interchangeable policy tools used to manage conflict, alongside negotiations, economic sanctions, and military force. If justice cannot bring peace and reduce violence as effectively as these other instruments, then logically it follows that it should be replaced by these other tools. According to the same sceptics, the assumption that justice can be pursued neutrally during conflict is inconsistent with the claim that justice can independently affect the prospects for peace by marginalizing some actors and empowering others. They add that the potential of a backlash against international justice may be great if evidence emerges that it undermines humanitarian efforts, inhibit peace talks, and impede successful implementation of peace accords.

On the other side of the spectrum, proponents of transitional justice ask a legitimate question: what actually determines whether a nation is ready to confront its violent past and, in a situation of continuing conflict, whether transitional justice impedes a peace process? If the argument that accountability may undermine stability is common in post-conflict situations, the risks of pursuing accountability are often exaggerated to suit political ends; experience in post-conflict countries has actually proven that (political) reconciliation without truth-seeking and justice only rehabilitate those responsible for grave human rights violations. In other words, violence would have to be confronted and addressed in order to break the cycle of conflict. Given that political will and leadership are scarce in peace-building contexts, it is then certainly more of a challenge to support justice initiatives than security and development initiatives, but new models in the implementation of transitional justice at the time of war are needed. READ FURTHER