Levels of Transitional Justice

Transitional justice usually refers to measures and processes adopted at the national-state level, and thus most of the transitional processes adopted so far have operated at the national/domestic state level. This notwithstanding, some authors have identified four levels of transitional justice: supranational institutions, nation-states, corporate actors, and individuals.245 We now, thus, briefly discuss these levels of transitional justice because this might help to understand the policy options available in post conflict or post-authoritarian situations to deal with the past violations.

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Examples of supranational institutions include the Nuremberg War Crimes Tribunal, the International War Crimes Tribunal for the Far East, and the International Criminal Tribunals for Rwanda and for the Former Yugoslavia.246 There have also been numerous ad hoc international tribunals established by the United Nations since 1990th. The permanent International Criminal Court has also started operation dealing with certain crimes that may be prosecuted after situations of regime change/transition. However, criminal prosecutions before international tribunals are very limited247. Nonetheless, we may ask whether this tendency will change through the establishment and operation of the International Criminal Court (ICC).

Transitional justice may also take place at the corporate level. The word corporate does not necessarily refer solely to business or economic organizations. It may refer also to non-state entities including political institutions (parties), religious institutions, economic entities, political associations and municipalities.248 Sometimes, these institutions can be subjects of transitional justice as they might have participated in past crimes or benefited from violent pasts.249 In some cases corporate actors were dealt with because of the benefit, they derived from the past regime for example by taking possession of property confiscated from other individuals or institutions.250 They may also be considered as “dispensers of justice.” 251 There were cases where corporate actors and private firms have taken some measures against their members or employees for their participation in or collaboration with past regime.252

Transitional justice may also take place at an individual level. This is referred to as “private justice” exercised by individuals against others.253

It can take the form of extralegal killing, deliberate and public humiliation, and social ostracism.254 However, a question might arise as to the appropriateness of some of these private processes. On the one hand, individual level

246 ELSTER, J, Above n 184 at 93 247 PRISCILA B H ,Above n 175 at 12 248 ELSTER, J, Above n 184 at 94 249 ELSTER, J, Above n 184 at 94

250_{ELSTER, J, Above n 184 at 95 It is noted that “the recent negotiations involving Swiss banks, Italian}

Insurance Company, and German firms that benefited from Nazi wrongdoings also involved corporate actors rather than individuals.”

251

ELSTER, J, Above n 184 at 94. In some cases, they were the victim of past regime. For example, they may be demanding the return of property confiscated by the former regime. Such was the case in France (by the French Catholic Church after 1815), Czech, Romania, Poland, Hungary, regarding property confiscated from the church or Jews community. Such demands were met in some of these countries.

252

ELSTER, J, Above n 184 at 96

253

ELSTER, J, Above n 184 at 97

254

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reconciliation may also be considered as private justice. A question can also be raised as to the relationship between private justice and legal justice. It is suggested that private justice may be seen as “a substitute for, or pre-emption of, legal justice.”255

Moreover, “legal actions may conversely be shaped by the perceived need to pre-empt or prevent private justice.”256

However, one can question whether legal justice totally prevents private justice. What if victims feel legal justice is not sufficient?

At this point, one should also consider a very important element in dealing with the past at an individual level – that of forgiveness. Some have defined forgiveness “as a negation or abandonment of vengeance.”257

Forgiveness prevents or minimizes private justice, and benefits all – the aggrieved, wrongdoers and the society as a whole.258 Whatever role forgiveness has as a transitional process, it has to take place at an individual level because only victims have the natural right to forgive and perpetrators to request it. The question that may be asked here is what policy measures at a national level would promote forgiveness.

We might also consider another level of transitional justice, which stands between the state and the individual level; we might regard this as justice at the community or local level. These are measures taken at community or local levels, which are neither, state measures, because they do not fit in the formal state structure, nor an individual action because of the collective nature of the measures. These are also different from so-called corporate or municipality level processes. The Gacaca courts of Rwanda may serve as a good example, in respect of which few points can be stated. The Gacaca courts had their roots in Rwandan tradition of settling disputes and later reinvented as a distinct quasi-judicial institutions of dealing with Rwanda’s violent past. The following observation highlights the rationale and the uniqueness of these Rwandan courts:

[The gacaca courts comprise] a system of community courts nationwide...launched as a direct response to the logistical and other challenges of bringing to justice some 120,000 individuals accused of genocide and held in prolonged detention. Based on traditional practices of

255 ELSTER, J, Above n 184 at 98 256 ELSTER, J, Above n 184 at 98 257

ROMAN DAVID, and SUSANNEY P.CHOI. 2006. Forgiveness and Transitional Justice in the Czech Republic, Journal of Conflict Resolution, 50 (3), , Sage publications, at 339

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communal reconciliation, the gacaca hearings were officially instituted as an elaborate and sustained exercise of transitional justice in local settings with grass-root participation. As such, gacaca represents a mainstay of the Rwandan approach to transitional justice: gacaca falls under the jurisdiction of the Rwandan government, the gacaca hearings took place in local Rwandan communities and the SNJG comprises exclusively Rwandan staff.259

The mandates of the gacaca, apart from achieving justice, extend to the promotion of reconciliation and national unity, and were supervised by the National Service of Gacaca Courts (SNJG).260These courts were separate from the International Criminal Tribunal for Rwanda (ICTR) and the formal courts of Rwanda. Thus, Rwandan transitional justice context demonstrates the co-existence of different levels of transitional process.

Although the above discussion is helpful to understand transitional justice in a broader sense, I confine myself to transitional justice processes adopted at the state level. The other levels of transitional justice may be regarded relevant as far as they have connection with the framework of transitional justice measures adopted by states. The notion of private justice and community or local level justice processes are relevant to the Ethiopian context because, as will be shown, they are seen as either affecting the formulation of the transitional process or as a complimentary [or even a substitute] process for the formal transitional processes. As shown in chapter five, the initiation of trial process was seen as preventive of private justice or individualized acts of revenge against former leaders.