By Kirthi Jayakumar
Image: Syrian Refugees arrive in Greece / NeedPix
Whose justice is it anyway?
Transitional justice has often been dispensed by a mix of ad hoc and permanent international tribunals, hybrid courts, special chambers within domestic judicial systems, and truth commissions – all of which are yet to produce “satisfactory results in the eyes of those harmed” (Senier 2008: 67).
However, given that justice is “locally relevant and context specific” (Aroussi 2018: 3), transitional justice has often operated as an externally imposed international approach toward reconstructing countries that have faced conflict on liberal democracy terms (Lundy and Mc Govern 2008). Most attempts that strive to adjudicate upon war crimes and mass atrocities tend to ignore domestic – both traditional and mainstream – judicial systems, in the process imposing an idea of dispensing justice that may be almost entirely alien to the communities seeking justice. Another consequence of this disconnected sense of justice is that those that are prosecuted are not the ones that committed the crime on ground: most of whom return to their neighbourhoods and regular life, such as the genocidaires after the Rwandan Genocide and the Northern Ugandan rebels.
This is not to mean that domestic and traditional means have been entirely successful – given that there have been allegations of the lack of procedural fairness, the fear of reprisals, and the lack of access (Waldorf 2006). While it is not ideal to gloss over any one kind of judicial apparatus as the ideal solution, the point to be born in mind is that the idea of “justice” should be defined by those who seek it.
In order for transitional justice to be efficient and responsive, so that it serves the needs of the survivors while also addressing impunity, it is important to “understand not only how justice is conceptualized in the local context,” but to also understand what “influences survivors’ perceptions of justice” (Aroussi 2018:4). Scholarship has returned to the operations of transitional justice mechanisms in hindsight to point out how things could have gone (Nowrojee 2012; Kelsall and Stepakoff 2007; Oosterveld 2009; Schrag 2004). Lessons drawn from the ICTR, the ICTY, the ICC, and the Special Court for Sierra Leone can prove to be useful while framing a prosecution model for the future.
Very little research has articulated the justice-related needs of the victims of sexual violence by the ISIS. While Zoonen and Wirya (2017) interviewed members of the Yazidi community in 2016, there has been no structured research to identify what the LGBTQIA+ survivors of sexual violence by the ISIS envision as justice. Some respondents suggested an international court while others looked upon the Kurdistan Regional Government’s engagement in trying and punishing the guilty (Zoonen and Wirya 2017: 15). To them, the idea of relying on the Central Government of Iraq was not an option because of their “perceived bias towards Muslims” that is “embedded in Sharia Law” (Zoonen and Wirya 2017: 15).
Respondents alluded to community fears that either the perpetrators will not be punished or that there will be “new cycles of violence by fuelling desires for revenge-acts outside the legal system” if any attempt is made at providing justice without the involvement of an international entity (Zoonen and Wirya 2017: 16). The participants in the study also said that that the KRG and CGI would have taken “important steps already” if they were “serious about ensuring justice after the genocide.” The respondents in the study indicated that they “saw an important role for the Sunni Arab tribes and the international community” in dispensing justice. The role of the former, in their opinion, would help “combat the idea among Yazidis that all Sunni Arabs are IS sympathizers,” and the role of the latter would be “necessary to ensure fair trials and appropriate sentences” (Zoonen and Wirya 2017: 16). LGBTQIA+ survivors of sexualized violence at the hands of the ISIS may share similar concerns if not entirely the same, and attempts should be made to ascertain what their vision of justice is. Structural violence has prosecuted LGBTQIA+ people on account of their identity in both Syria and Iraq, and this needs to be addressed by the transitional justice mechanism, as well.
Aroussi, S. (2018) Perceptions of Justice and Hierarchies of Rape: Rethinking Approaches to Sexual Violence in Eastern Congo from the Ground up. International Journal of Transitional Justice 12 (2), 277-295.
Kelsall, M. S. and Stepakoff, S. (2007) ‘When We Wanted to Talk About Rape’: Silencing Sexual Violence at the Special Court for Sierra Leone. International Journal of Transitional Justice 1 (3), 355–374.
Lundy, P. and McGovern, M. (2008) Whose Justice? Rethinking Transitional Justice from the Bottom Up. Journal of Law and Society 35, 265–292.
Nowrojee, B. (2012) ‘“Your Justice Is Too Slow”: Will the International Criminal Tribunal for Rwanda Fail Rwanda’s Rape Victims?’ In Gendered Peace ed. Pankhurst, D. London: Routledge.
Oosterveld, V. (2009) The special court for Sierra Leone’s consideration of gender-based violence: Contributing to transitional justice? Human Rights Review 10 (1), 73-98.
Schrag, M. (2004) Lessons learned from ICTY experience. Journal of International Criminal Law 2, 427.
Senier, A. (2008) Traditional justice as transitional justice: A comparative case study of Rwanda and East Timor. PRAXIS The Fletcher Journal of Human Security 23, 67-88.
Waldorf, L. (2006) Mass Justice for Mass Atrocity: Rethinking Local Justice as Transitional Justice. Temple Law Review 79, 10-11.
Zoonen, D.v and Wirya, K. (2017) The Yazidis: Perceptions of Reconciliation and Conflict. Erbil: Middle East Research Institute (MERI).