Are Traditional Justice Systems the Missing Component of Transitional Justice? 

“We are not to simply bandage the wounds of victims beneath the wheels of injustice, we are to drive a spoke into the wheel itself.”

Dietrich Bonhoeffer

“In matters of truth and justice, there is no difference between large and small problems, for issues concerning the treatment of people are all the same.”                                                                                                                                                Albert Einstein

Table of Contents

Introduction

Definitions

Established Definitions

Concept and Theories of Traditional Justice

Case Studies

Uganda

Sierra Leone

Legal Basis and Legitimacy

Advantages of Traditional Justice Systems

Accessibility

Child-soldiers

Flexibility

Forgiveness

Challenges of Traditional Justice Systems

Re-victimization

Minority Groups

Human Rights

Too informal?

Traditional Justice Going Forward

Conclusion

Introduction

The field of transitional justice revolves around four fundamental pillars; truth, justice, reparations and guarantees of non-recurrence. Though each pillar has a specific and important function to fulfill in the process of rebuilding a nation, particular attention has been paid to justice. This concept is as straightforward as it is vast. For many, justice rhymes with courts, attorneys, and trials, but for others justice is economic or social. Recently, there has been a crisis of the legal system in Western countries, and for that reason these same countries became increasingly attentive to traditional justice systems, which are a different and rawer way to render justice. Most of the transitional justice work is concentrated in countries that differ radically from where the model of transitional justice was created. Therefore, there is a need to rethink the models and processes for cultural appropriation of the processes of transitional justice. There are just as many interrogations regarding traditional justice methods and what they entail, as there are opinions about the systems. Do traditional systems respect international law? Are they legitimate? Are they a satisfying remedy for victims? Can they empower minority groups? This paper will bring light to the questions above through detailed research illustrated by case studies and arguments of renowned scholars. Traditional justice is an extremely vague and heterogeneous field and this paper does not pretend to give an answer to the specificity of each system. Instead, this paper will explore the necessity or deficiency, of traditional justice systems in transitional justice. For this reason, a few case studies have been carefully selected. Though the Gacaca trials of Rwanda are one of the main reasons, if not the only, that traditional justice became popular in Western countries, I have carefully decided to leave this case study out of this dissertation. The reasons being that the Gacaca trials are not, in my opinion, an accurate representation of what traditional justice systems thrive to be. They have been widely controversial and were fully put in place and ran by the government of Rwanda. The legitimacy of the courts was undermined by the fact that the “traditional” process was being imposed from the top down. The label “traditional” helped legitimatize the process in the eyes of the international community but it served as a bandage and did not necessarily meet the functions of a traditional justice system. However, this is not to say that the international community has not gained any knowledge from the experience of Rwanda on the topic. Instead, the two following case studies will be used to illustrate the arguments of traditional justice in transitional countries: Mato Oput in Uganda and  Fambul Tok in Sierra Leone.

Definitions

Established Definitions

Before jumping into the core of the subject, it is important to understand the etymology of the words tradition and justice; and even more crucial, to fathom the wide scope of these concepts. Oxford Dictionary defines the word tradition as “a long established custom or belief that has been passed on from one generation to another”[1]. This definition is rather vague, which consequently leaves the concept of traditional justice just as imprecise. Lots of different customs and rituals can fall under this type of justice and the definition of the word does not help narrow down the systems. In the same dictionary justice is defined as “a just behavior or treatment”[2]. Once again the definition remains vague and it makes it hard to grasp a clear concept of the term. The Report of the United Nations (UN) Secretary General (UNSG) of 2004 on Transitional Justice, gives a little more precision about what justice is. The report defines justice as “an ideal of accountability and fairness in the protection and vindication of rights and the prevention and punishment of wrongs”[3]. This definition implies fairness for both the accused and the victims but it does not specify that the process can only be legal. In a further reference of the paragraph of the report, the UNSG highlights that “traditional dispute resolution mechanisms are equally relevant”[4] as the legal means.  In a later paragraph[5], the UNSG writes about the importance of culture sensitivity in the process of transitional justice. Each process is different and should be adapted to the culture of the country. Without this culture adaptation the transitional justice process risks to fail meeting its objectives and reinstitute peace and stability in the country. Traditional mechanisms are a way to adapt to the country’s culture if that is a part of the country’s tradition. The wide scope of the definition of the word justice works in favor of traditional justice systems as it means that justice is not only a legal concept as defined by most Western judiciary systems.

Reconciliation is a reoccurring term in traditional justice as it is the end goal of these systems. For this reason, it’s important to understand what reconciliation entails and the variations of this word. Pablo De Greiff writes quite a formal definition on the subject that reads:

“Reconciliation, minimally, is the condition under which citizens can trust another as citizens again (or anew). That means that they are sufficiently committed to the norms and values that motivate their ruling institutions, sufficiently confident that those who operate those institutions do so also on the basis of those norms and values, and sufficiently secure about their fellow citizens’ commitment to abide by and uphold those basic norms and values”[6]

 

De Greiff’s definition gathers an in-between approach of reconciliation meaning that that there should be mutual respect between the two parties concerned and a certain level of trust, while still leaving space between the opposing individuals. The minimalist approach only focuses on simple co-existence and on creating a lesser evil. This approach is typical of the legal system as it focuses on procedural justice. Traditional justice on the other hand, strives to fulfil a maximalist approach to reconciliation. With harmony as one of the end goals, it strives to achieve integral forgiveness. Desmond Tutu defined a maximalist approach to reconciliation as:

“Harmony, friendliness, community are great goods. Social harmony is for us the summum bonum – the greatest good. Anything that subverts or undermines this sought‐after good is to be avoided like the plague. Anger, resentment, lust for revenge, even success through aggressive competiveness, are corrosive of this good. To forgive is not just to be altruistic. It is the best form of self‐interest. What dehumanizes you, inexorably dehumanizes me. Forgiveness gives people resilience, enabling them to survive and emerge still human despite all efforts to dehumanize them.”[7]

These approaches are important in the development of transitional justice as they define the type of forgiveness that will be possible for a country. The mechanisms adopted in the transitional process have a direct effect on the possible reconciliation of the people. Therefore, as traditional justice and legal mechanisms are based on different approaches, strong cooperation is needed between the two for maximum results.

Concept and Theories of Traditional Justice

The international community has not always brought adapted assistance to countries undergoing a transitional justice process. For this reason in the 2004 Report of the United Nations (UN) Secretary-General, the head of the organization stated that “due regard must be given to indigenous and informal traditions for administering justice or settling disputes”[8]. The shift from legal justice to a more informal way of fulfilling this pillar of transitional justice is what Kieran McEvoy calls “letting go of legalism”[9]. Through this concept he explains that transitional justice is much bigger than the thin notion of legality and the field should respond to the development and the culture of human rights in a certain state. It is a more personal way to achieve justice and more importantly reconciliation, which leads to sustainable peace. Moreover, traditional justice societies respond to the concept of cosmopolitanism defined as the moral obligation to restore humanity for the people based on their humanity only[10]. According to this theory, the humankind should always remain the biggest concern. For this reason, the legal system is not the only way to convey justice. On the contrary, traditional justice measures can restore humanity and peace in a more effective way than legalism.

Legal tradition is the set of deeply rooted, historically conditioned attitudes about the nature of law, the role of law in society and the policy, and the proper organization and operation of a legal system in existence within a state or community. Traditional justice may be based on codes such as those in the civil law tradition, the moral precepts of religion, or long-standing communal practices designed to ensure harmony and balance. African customary tradition conceptions of law, for instance, stem from respect for the traditions of one’s ancestors and fear and respect of the supernatural. They are usually located either in local communities themselves or close by. The processes themselves often encourage the participation of the local population. They draw on existing local practices, structures, customs, and values. These mechanisms often come in to complement other traditional justice mechanisms, such as trials, but this complementary remains rather rare. There are many reasons why some countries turn to traditional methods to fulfill justice. The main one being that the legal department cannot take care of all the cases when a conflict has ravaged an entire country. On the opposite of legal procedures, which are defined as retributive justice, traditional justice focuses on restorative justice. Justice is a plural concept and there are different ways to achieve it. Therefore, restorative justice is just as relevant as retributive justice in times of transition. Pietro Sullo focused on restorative justice in his work of the same name and describes it as “a process of re-building relations”[11]. He explains that it includes both parties equally and encourages reconciliation and reintegration rather than punishment. In his elaborate definition of restorative justice, P. Sullo sees this type of justice as a complement to retributive justice in that it can reduce the load of the criminal justice systems when these are overloaded with cases[12]. Restorative justice focuses on healing the victims on a spiritual level in order to achieve harmony within a community. Though punishments might be an outcome of a traditional justice process, the ceremonies are not focused on it but rather on the reconciliation of the two conflicting parties. Desmond Tutu, the head of the South African Truth and Reconciliation Commission (hereinafter TRC) spoke about traditional justice systems as “another kind of justice, (restorative justice), which (is) characteristic of traditional African jurisprudence”[13]. In his opinion, this type of justice is much more fitting and customary for the African people. He spoke about the African continent because it is homeland, but this also applies to many islands in the Pacific. Any nation that has a strong indigenous culture is better fitted for restorative justice.

Though many see traditional justice systems as impunity because there is no judicial accountability. One could argue that there is still accountability from part of the perpetrator. Indeed, most traditional justice systems require the perpetrator to admit the facts and to discuss the situation with either the mediator or the victim directly. Then, the healing ceremony happens in front of many people in the village, holding the perpetrator accountable in front of his neighbors. There is a very strong sense of accountability at the community level, which has shown to be more therapeutic and restorative for the victims[14].

Traditional justice is an extremely heterogeneous category; there isn’t one system that looks exactly the same. Some processes are very formalized and some others are completely informal. Moreover, some of the rituals are written down meanwhile other rituals are passed down vocally from one generation to the next. Even when the rituals are written down, there is a need to identify the traditions that were invented and disguised as such to respond to an extraordinary conflict, and those who were really entrenched in the culture before the conflict erupted. Traditions can change and be altered after an unconventional situation such as mass atrocities, but a new made-up mechanism conceived after a conflict does not fall under the category of traditional justice[15]. However, there are three key attributes[16] that are common to all traditional justice systems. The first one is that it focuses on groups rather than individuals. The second feature is that these systems strive to restore the harmony of a community as a whole by resolving personal conflicts. The practice is as such because the inheriting peace of one person will benefit the entire community. Finally, traditional justice systems emphasize on the restitution over other forms of punishment.  They are not focused on the perpetrator and the chastisement that he or she should receive.

Case Studies

To understand the place of traditional justice in transitional context, two case studies have been chosen to illustrate the arguments.

Uganda

The Lord’s Resistance Army (LRA) terrorized Uganda and especially the northern part of the country for twenty-two years. The case of Uganda is an extremely complicated yet fascinating case of traditional justice. Children were, sadly, at the heart of this conflict as victims but also as perpetrators under the description of child-soldiers[17]. After the conflict ended, the reality of the Acholi[18] people was that victims and perpetrators had to live together again but it could not happen with out some kind of reintegration process. When children were abducted and made child-soldiers, the LRA instill fear and respect for the commanders’ powers. The children were forced to commit atrocities out of loyalty for their leaders, and often these brutalities were committed against people of their community, and even their own families. The International Criminal Court (hereinafter ICC) kept a close eye on the conflict of Uganda, investigating and prosecuting some of the leaders of the LRA. However, this did not do much to the reintegration of child-soldiers. Upon the return of these children and other combatants to their communities, elders in Northern Uganda started performing cleansing ceremonies to purify the perpetrators from their actions and to establish peace in their villages. The Acholi people partake in many traditional practices to “chase the bad spirits” and cleanse someone or something from any undesirable vibes. The main tradition practiced after the conflict was mato oput, translated as the bitter roots[19]. This traditional ceremony is especially practiced to reconcile people of a same family or community that have hurt each other. Roger Duthie explains “an approach toward the LRA that is rooted in local culture is inherently more likely to be meaningful to victims than prosecutions that seem alien to the Acholi culture”[20]. Participants in the mato oput ritual partake in a long process of confession in a public setting. After the confessions are over, they share a bitter drink at the peak of the ceremony. Essential to the process is the willingness of the offender’s clan (not the offenders an individual) to assume responsibility for the act committed and a readiness and ability to pay compensation. There is also a discussion of forgiveness throughout the confessions and the process ends after both individuals have reached an agreement and shared the bitter drink. Following this ritual, it is expected that the opposing individuals go on with their lives and cohabitate without any issues.

Sierra Leone

The civil war in Sierra Leone, took place from 1991 to 2002. Eleven long years of conflict which destroyed the country and the hearts of the people in Sierra Leone. The transitional justice process in Sierra Leone seemed to be complete with both, criminal trials that lead to nine convictions and a Truth and Reconciliation Commission. However, even with both these mechanisms there was a lack of justice for the people in rural areas that could not access either of the formal processes. Besides, lower ranked perpetrators were quickly granted amnesties, giving them no incentive to come forward and contribute to a truthful narrative of the conflict. Out of this feeling that justice was not being rendered for a majority of the population of Sierra Leone, Fambul Tok was put in place. This traditional justice process, which translates to “family talk”, is a tradition that seeks to bring justice to communities through discussions and a spiritual ceremony. It is designed to “address the roots of the conflict at the local level, and to restore dignity to the lives of those who suffered from violence”[21]. Fambul Tok takes the form of an open ceremony in which both parties explain their disagreement and the perpetrator asks for forgiveness around a large bonfire. Forgiveness is not mandatory, but more often than not, the victim agrees to forgive. The two opposing parties are able to come at peace with one another and their personal healing leads to the harmony of the community as a whole. Fambul Tok was especially necessary for Sierra Leone because the war involved the abduction of countless children to turn into child-soldiers. The TRC concluded that very often these children were forced to commit crimes against members of their community[22]. Therefore, there was a desperate need to reconcile the communities and the only way forward was a process adapted to the type of justice Sierra Leoneans are used to.

Legal Basis and Legitimacy

Due to the fact that traditional justice systems operate outside formal legal systems and sometimes outside any kind of state control, they do not always respect national or international legal or human rights standards – in particular, that they do not always afford due process. International law does not possess direct mentions of the legality of traditional justice systems, which is in part, why this topic is still very much contested. However, there are many indirect mentions of traditional justice processes and the reciprocity of the law is also interesting in this case. Moreover, since traditional justice mechanisms are such a heterogeneous category, they each meet and violate international law on different levels, which is why when implementing one of the processes, a case-by-case judgment needs to be adopted. The first main expression of traditional justice can be found in the 2000 Vienna Declaration on Crime and Justice[23], which strongly advocates for a restorative approach to justice in the interest of the victims. The same year, The Basic Principles on the Use of Restorative Justice Programs in Criminal Matters were adopted by ECOSOC establishing that restorative justice was needed as a complement to retributive justice[24].

Furthermore, traditional justice systems respond to rights defined in the Updated Set of principles for the protection and promotion of human rights through action to combat impunity’. The first right is to truth[25]. These processes oblige the victim and the perpetrator to face each other in order to confess and to come to terms with the atrocity that may have occurred. Since the goal is not for the perpetrator to lower his or her sentence, the interaction between the two is a lot more truthful and a genuine acknowledgement is expected from the perpetrator. However, at the same time traditional justice violates the following principle, which is “the duty to preserve memory”[26]. The informality of the systems prevents them from archiving or transcribing any of the procedures; therefore the only memory preserved from the processes is the one that individuals keep in their minds.

Although the ICC focuses mainly on retributive justice, the court has had to dive into the topic of traditional justice and therefore formed an opinion on it. The ICC is in favor the use of traditional mechanisms as a ‘complementary’[27] process and defines it as “procedures, whether formal or informal, which are implemented by a group or institutions that is accepted as legitimate in order to deal with perpetrators and provide justice to victims”[28]. The legitimacy of traditional justice systems should not be assumed, as it is not necessarily a straightforward criterion. Legitimacy differs depending on who is trying to legitimatize these systems. The international community legitimatizes traditional justice systems on very different grounds than the people of the concerned community. In the eyes of the community these systems are legitimate thanks to their loyalty to the customs and beliefs of the community. There is a very strong spiritual and at times religious element at the basis of these mechanisms. However, the legitimacy is not always steady, and it is especially not safe in times of conflict. The outcome of atrocities can have a significant impact on the legitimacy of traditional justice systems. Transitional justice societies are completely changed and the implication that each person had in the conflict plays a huge role in the legitimacy of the traditional rituals. In the instance that the chief of the community betrayed his or her own people during the conflict, this individual loses all legitimacy to practice the traditions and insure justice in the community. The same applies for the government and local officials. If they were on the wrong side of conflict, then victims are less likely to believe in their fairness and legitimacy. Any mechanism that may be used need to be accepted not only as legitimate on the ground, but they also need to be seen as acceptable within the wider paradigms of international law. Tradition offers an authoritative discursive infrastructure to shore up the legitimacy of a particular process. A traditional chief is legitimate insofar as he successfully deploys symbols and practices that are recognized as authoritatively and historically indigenous by those within his community. In Sierra Leone, the discourse of tradition gives prominence to traditional figures of authority, notably chiefs. Chiefs are a ready form of authority to structure and legitimatize Fambul Tok’s reconciliation process. To the extent that local authorities survive and their authority is seen as legitimate within their communities, the involvement of local authorities may be inevitable, and bringing such authorities ‘on board’ may greatly increase the effectiveness and reach of grassroots TJ processes.

Advantages of Traditional Justice Systems

Traditional justice mechanisms have received increasing attention for good reasons lately. Overall these systems are much more accessible to the victims. Moreover, there is a special place for traditional systems in transitional justice as they bring even more benefits that they would in regular times. The mechanisms are able to deal with more cases than any legal system could ever take on. As a matter of fact, some countries have resorted to traditional justice as a response to the massive number of cases they had to deal with. Traditional justice systems are even more important in poorer countries or countries recovering from conflict because these nations tend to have issue training judges and lawyers.

Accessibility

Traditional justice systems are much more accessible than any court can be. Accessibility is fulfilled in different ways. The first one is the physical access. These mechanisms take place within the community and for that reason there is no need for victims or perpetrators to travel miles away to attend the process. Linked to the physical accessibility is the financial convenience of these mechanisms. A trip to a court can be costly on its own but the legal procedures require even more funds. In traditional justice systems there is usually no legal representation, which is a criteria that can be argued as a challenge of these systems[29]. However, a legal representative represents an important cost that many victims cannot afford. This is especially true for minority groups. Children for instance, for the obvious reason that they do not work and thus cannot afford the price of an attorney. Women in transitional justice contexts also happen to find themselves deprived of financial means. In almost every conflict, men are targeted to be killed in the conflict while women are usually victims of sexual violence. For this reason, many women become widows in conflict and in patrilineal societies especially, it is extremely difficult for women to make up for the resources that their husbands used to bring to the table. For that reason, thinking of hiring an attorney is the last problem in these women’s minds, instead they work to rebuild their every day life. Additionally, there is no language barrier in traditional justice systems. The legal language can be difficult to understand even for people with some type of education, let alone for victims of conflicts like women and children who have very often been prohibited from getting an education for many years during the conflict. Accessing a judicial mechanism can be very overwhelming and they might not understand what is going on. If they do not understand the process going on around them, they are less likely to feel like they have received justice and it therefore defeats the point of the process. There is also a problem with the actual language spoken in courts, especially in countries with many dialects. Victims of a certain village do not necessarily speak the official language of the country and require a translator to undergo a legal process. This issue links back to the financial issue, most of the victims in transitional justice societies do not have the means for such needs. Traditional systems on the other hand, are handled either by the chief of the community or a member of this community, and mediations happen in their own language, therefore there are translational issues. These mechanisms also allow the participants to speak in their own words with no pressure of using technical language. Overall, traditional justice mechanisms are much more flexible than the legal system could ever be. The rituals and traditions are bendable on a case-by-case basis and the participation of the concerned parties is the most important aspect of these systems. So the community will do what it takes in order to make the mediations happen and facilitate the full participation of the victims and the perpetrators.

As explained by Rosemary Nagy, traditional justice mechanisms offer ordinary people greater involvement in and access to transitional justice than that provided by remote institutions, formal institutions or technocratic reforms[30]. Besides the accessibility of the mechanisms, people like their own traditions and rituals because they feel connected to them and they actually have a meaning. This is what helps them move one and feel the satisfaction of justice. These systems bring the process of transitional justice closer to every home. They give the opportunity to those living in the most rural and remote areas to participate and find closure with the past atrocities.

Child-soldiers

Child soldiers are often left out of the transitional justice process for the simple reason that they are a difficult category to grasp and deal with in a post-conflict society. The most challenging part of dealing with child soldiers is to facilitate their reintegration in their communities. The children are more often than not abducted and forced to join an army. Along with this, they are also forced to commit terrible crimes on members of their own communities, as it was the case in both Uganda and Sierra Leone. Many of them struggle to come back and live in their own communities because of the atrocities they were forced to commit. Even worse, children that were abducted at a very young age come back completely brain washed and not understanding their own families. In the Acholi region of Northern Uganda, reconciliation ceremonies serve as a cultural strategy for dealing with abducted children both as victims and perpetrators of violence. Furthermore, there are countless difficulties establishing legal guilt for child-soldiers and handing the issue over to traditional justice systems seems to be a good balance between the accountability and the reintegration needed for these children. The main legal issue that child-soldiers are confronted with is whether they should be tried as the adults they might be after the conflict has ended or as the children they were when they committed the crimes. Because of the legal conflicts on the status of child-soldiers, some prosecutors decide not to deal with the cases at all. In the case of Sierra Leone for instance, the statute of the Special Court of Sierra Leone (SCSL) stated that children above the age of 15 could be prosecuted but the prosecutor decided not to prosecute anyone under the age of 18[31]. In his decision he stated, “the children of Sierra Leone have suffered enough both as victims and perpetrators (…) I want to prosecute the people who forced thousands of children to commit unspeakable acts”[32]. Traditional justice is a good compromise for child-soldiers as it is a process that takes time to deal with each case separately and its main aim is to facilitate the reintegration of perpetrators into the communities.

Flexibility

The informality of traditional justice systems gives them the incredible advantage of being much more flexible than other types of justice. This is beneficial especially in times of transitional justice. When a conflict has been so extraordinary it is normal for the responses to be just as exceptional, and for those adjustments traditional justice systems are better suited. There are only so many changes that can be made to the legal systems, and no matter the adaptations, the process will remain lengthy and complex. The traditions and rituals are usually not written therefore the rules are more bendable and not only can they adapt to a situation as a whole, they can also acclimate individuals on a case-by-case basis. Traditional justice is also flexible in that it does not only encompass one strict mechanism. There are many different rituals that define traditional justice and even within one community an individual may have a choice of which ritual is more suited for the situation. In Uganda for instance, the attention has been focused on the mato oput ritual to reconcile parties but there are many more traditions that individuals can partake in, in order to find inner peace and justice. Moyo kum[33] is another tradition that aims at cleansing the spirit of an individual that is believed to be possessed by bad spirits due to his or her actions. This process is an alternative to the direct confrontation of mato oput since it gives the perpetrator the possibility to find inner peace. The cleansing ceremony is also very important for the community as it shows that the concerned individual is ready to move on from his or her dark past and is changing to become a better person. Therefore, even though this ritual is a lot more personal it benefits the community of the participant as well.

Forgiveness

There is a very important spiritual element in traditional justice mechanisms that could trump all the functions of the legal systems. Personal forgiveness helps rebuild the community and contributes to a longer and more sustainable peace. It is hard for anyone to forgive others if they are not first at peace with themselves. A legal process focuses on the perpetrator and on proving his or her guilt or innocence, while traditional justice is much more spiritual and puts the victim at the center of the process. This way, the victims are able to find true closure and inner peace. Forgiveness however, is a complicated process. Acts can be forgivable but forgiving the person responsible for those acts is a tougher step. No one can be forced to forgive and it takes time for people to come to the conclusion that they are ready to forgive those who have wronged them. However, traditional justice systems offer a better platform for forgiveness to occur. Key elements to reaching forgiveness include an apology, contributions, acknowledgement of ones’ actions, credible promise of change and a genuine concern. Unfortunately, none of these criteria appear in a courtroom. The process of a trial focuses on the defense of the perpetrator, and for that reason forgiveness is rarely achievable in such a way. Moreover, traditional justice systems give the victims an opportunity to see the offender in a new light and face a genuine request of forgiveness, which is crucial to being able to forgive. Forgiveness is more conductive to re-establishing the broken moral order because it presupposes the perpetrator’s voluntary submission to the values that are violated.

Reckoning goes hand in hand with forgiveness and together lead to better chances of reconciliation. The concept of reckoning means to face up oneself and doing something about the actions one has committed[34].

“Reckoning … entails confrontation with what has happened, charged with awkwardness and unquiet, towards an end: a painful encounter with truth. It is a coming to terms with what has happened, a calling to account. For the perpetrator of an atrocity, reckoning entails a process of staring in the mirror, of admission and self‐disclosure. It is a means of self‐liberation through tearing off the masks that justified what was done, and making amends. It demands rigorous truth and apology … Reckoning accordingly liberates the survivors within history, opening the way for potential – but by no means inevitable – reconciliation and resolution.”[35]

It could be best described as personal accountability but this personal recognition of ones act needs to be shared publicly in order to face up others and the ones who have suffered as a result of those actions. Reckoning is central to traditional justice systems and it is only practiced in these specific systems.

Challenges of Traditional Justice Systems

Since the increasing attention that traditional justice systems have received, these mechanisms have very much been romanticized. They have been viewed as the perfect remedy to serve justice in response to mass atrocities and the perfect complement to any transitional justice strategy. However, there are many challenges that come with the implementation of traditional justice systems; some of which the international community has a hard time overlooking.

Re-victimization

Having a traditional justice process in small communities has a lot of advantages, but unfortunately it comes with just as many challenges. The first issue is the one of re-victimization. Victims already carry with them a strong stigma from the violence they have suffered. In small communities the stigma is emphasized as everyone knows each other and thus, everyone knows about the atrocities they have suffered. In traditional justice mechanisms the victims have to testify in front of their community. Though one might think that speaking in front of people they know makes it easier it is quite the opposite that seems to happen. Victims become more vulnerable when testifying in front of a group of individuals they know and it hardens the justice process. It is also hard for these victims to relive the process. That is something that is not only true in traditional justice, but in any type of testimony making. No victim likes to relive the violence they suffered and speaking about it is a hard task for them. Moreover, there is little to no witness protection in these traditional mechanisms. Therefore, threats and actions against witnesses and victims cannot be avoided. Moreover, it is not because the issues are being handled at a lower level that the process is completely free from politics. As in group of people politics are bound to be a part of the engagement whether in favor or in disfavor of the people. Moreover, men and women suffer conflict differently[36]. Not only do traditional justice mechanisms need to realize this but they also need to adapt to these different needs. In Uganda, men and women returning from conflict experience the same exact treatment and often times it downplayed the sexual violence that women could have suffered.

Furthermore, traditional justice systems unjustly put psychological pressure on people who refuse to be a part of the system. This is especially true in times of transitional justice when many cases are being dealt with in a community. There is social pressure to deal with one’s personal issue in order to benefit the entirety of the community. Though the pressure is ultimately for the common good of the society it does not give victim the space they need to take a step back and contemplate the harm that has been done to them.

Minority Groups

Historically, during traditional justice mechanisms women and children tend to not be invited in the process and their husbands and fathers act as their representation. These mechanisms can reinforce the existing hierarchies of power between men and women and disadvantage minorities such as women and children. By representing their family members, men keep their position of power and they can use it to their advantage. Patrilineal societies survive conflicts and for this reason traditional justice might not work well or fairly in situations where there is a different level of power between the two parties that are trying to reconcile. It accentuates the subordination of the weaker group over the stronger group. In Uganda, women are not traditionally involved in the decision-making processes. Therefore, even when they are directly involved in an issue, men make the final decisions for them[37]. Moreover, since the focus of traditional justice mechanisms is on resorting harmony in the society, men can easily take advantage of their power in order to force the status quo on the women and children without having them participate in the system. This lack of fairness against women and children comes from the lack of conformity of these mechanisms to international standards. A century ago, western courts did not make room for women in the legal process because no progress had been made in terms of women’s rights. They do not feel the need to include and be fair to women and children. However, the case of Fambul Tok in Sierra Leone can advocate for the contrary of this argument. Though traditional justice do typically leave minority groups out of the picture, the light oversight of the Fambul Tok process made sure that all Sierra Leoneans would be involved in the process no matter their age, gender or race. It is a great example of the improvements that a little oversight can bring to a tradition. Lastly, given the specific needs of women and girls who have been targeted in sexual and gender-based ways, it is not at all evident that their involvement in playing complementary roles to their adult male counterparts without undue discrimination will be sufficient[38].

Furthermore, though reparations are granted to victims in traditional justice systems, these compensations are not necessarily fit to the needs of women and children. Although monetary compensations can help improve the standards of living of people from minority groups, they can also hinder them.  Women in patrilineal societies may have never had to deal with finances and receiving lump sums of money makes them more vulnerable and more prone to be taken advantage of. Children, are not taught on how to handle money and do not know what to do with it. The types of compensations that should be distributed is a topic carefully studied by international scholars in order to guarantee the best empowerment possible for victims. In traditional justice however, it is not duly considered and therefore puts the most vulnerable people at risk of being abused.

Human Rights

Due to the fact that they operate outside formal legal systems and sometimes outside any kind of state control, traditional justice systems do not always respect national or international legal or human rights standards – in particular, that they do not always afford due process. The process is handled by and within the community and there is very little exterior advice and supervision. This lack of supervision brings two challenges to the processes. The first challenge is the lack of adherence to international human rights law. Whether it is done purposely or by lack of knowledge, many traditional justice mechanisms violate human rights in their practices.  Sometimes there is knowledge that those rules are not met but very often, since the leaders of these processes are community leaders and not legal professionals, they do not necessarily know what the rules are outside of their communities. Therefore, the means to render justice through the rituals and traditions are not always legal and that is something that is very hard to undo. A tradition is always based on some belief, there are reasons behind each ritual performed and asking the communities to change that based on national or international law does not necessarily make sense to them. The second challenge regarding the lack of oversight is the absence of enforcement mechanisms for the outcome of the traditional systems. Though the community is supposed to hold the perpetrator accountable for his or her punishment following the traditional formality, there are no strict bodies of enforcement that can follow-up and ensure the punishment will be completed and/or the reparations paid.

Erin Baines states that aspects of these traditional approaches appear to meet both the procedural and the accountability standards of international justice, such as those of the Rome Statute of the ICC and the International Covenant on Civil and Political Rights (ICCPR). Regarding accountability, she argues that the Acholi justice system of Northern Uganda combines elements of retributive and restorative justice and that international standards of justice can be met through the process of mato oput. However valid the arguments of Baines, traditional justice systems fail to meet article 14 of the International Covenant on Civil and Political Rights (ICCPR)[39]. This article describes the right to fair trial for all which is nearly inexistent in traditional practices. No lawyers or any type of formal representation is present during the healing ceremonies thus; it is the word of the victim against the one of the perpetrator. Though it might seem unfair to the perpetrators to throw them arbitrarily on the bench of accusation this argument forces us to remember the goal of restorative justice. There is no final verdict in traditional justice systems but rather conversations that bring two hostile parties together; therefore there is not necessarily a need for representation.

Too informal?

Traditional justice is poorly suited to documenting mass atrocities and producing truthful narratives. The lack of formality in these processes neglects the collection of data and at the same time the writing of a narrative[40]. Unless there is some kind of top-bottom approach to the traditional justice process, it is most likely that no data will come out of the processes thus no one is able to assess and evaluate the successfulness of the process. Moreover, when nothing is written it is hard to draw an overall narrative of the conflict. Instead, personal stories are shared and accepted but there is no common storyline. The lack of transcribing in the field also causes to distort definitions of crimes and to mishandle grave breaches. Many traditional justice systems have had difficulty handling novel crimes like genocide, crimes against humanity and war crimes, particularly if they never had jurisdiction over serious criminal offenses such as these[41]. Moreover, with no transcription of past cases, there is nothing to found an opinion on and therefore; it is all up to the people to the participants of the ritual at the time being. Traditional justice is much more effective and legitimate focusing on ordinary subject matters. The conformity of international human rights norms is less of a concern where proceedings involve civil claims over property.

Traditional Justice Going Forward

Traditional justice systems are the finest remedies to the 2004 UNSG[42] report’s concern of the lack of cultural appropriation in transitional justice. When adopted by the people rather than imposed by the government or the international community, traditional justice is the most meaningful approach to deliver the feeling of satisfaction that justice has been rendered to the victims of a conflict. The overarching lessons for transitional justice are that successor regimes should resist the temptation to co-opt or control local justice. State control of such a mechanism takes away from the legitimacy of the tradition. It gives a sense that the traditional is no longer local and thus just another legal mechanism to achieve justice. Of course there are also the problems brought by all the challenges of traditional justice. However, these issues all revolved around the fact that there is evidently no supervision of the processes. There are two opposing cases of traditional justice, one where the people of the community are in total control of the process and are not aware of the possible human rights violations that it entails. The other is a mechanism controlled by the state and thus loses legitimacy. The key to credible and meaningful traditional justice systems lies in the balance of the two cases above.  It is difficult to measure the satisfaction that traditional justice brings to the people and even harder to evaluate the impact that it has on transitional justice processes. Surveys and interviews have been conducted following the practice of traditional justice systems and though the responses seemed overwhelmingly positive, because of the lack of data in the field nothing has been tracked on a long time spam. However, traditional justice systems target a category of people that is very often left behind in the process of transitional justice. Though those people are kept in mind in the building of the process, their participation to formal proceedings is quite hard to achieve. Transitional justice requires individuals from rural areas to travel to the process while with traditional justice the process comes to them.

Due to the extraordinary circumstances of transitional justice situations, traditional justice is a remarkably fitted response. Of course, it comes with many challenges but these tasks can be overcome with the help of the international community, without however changing the deeply rooted traditions of the systems. It is also important to remember that needing outside assistance is not the same as needing outside ways of doing things[43]. Governments tend to focus on the latter in traditional justice systems and it is one of the reasons why it hasn’t worked to its full potential.

Conclusion

Conclusions for traditional justice systems are hard to draw because of the lack of data in the field and because of the heterogeneity of the field. However, there are many reasons why a restorative type of justice should be implemented over or in complement to retributive justice in transitional justice. Traditional conceptions of retributive justice place relatively little emphasis on restoring victims’ dignity and demand that the guilty be punished. Restorative justice on the other hand is concerned with correcting imbalances, restoring broken relationships – with healing, harmony and reconciliation. They are all attributes that are much more fitting to repairing a society that have been broken due to conflict.

Traditional justice systems embody all four pillars of transitional justice and are an important complementary process to a successful after-conflict transition. However, this is very country and culture specific. A country that partakes in traditional processes of rendering justice need to have strong indigenous background in order to believe that it is this type of justice that will help them move on from the atrocities that have happened in the past. Justice is only relevant if it is meaningful to the one seeking it. If the victim seeking justice does not feel satisfied with the outcome of the process he or she undertook, then no matter the verdict, justice has not been served. Moreover, the expectations of what traditional justice systems can accomplish in transitional justice societies have to be drastically lowered. It has flourished as the answer to everything that can bring sustainable peace and harmony to a country but as this paper has shown, it is not as ‘cookie cutter’ as it seems. Although traditional justice brings immense progress and reconciliation after mass atrocities, neither this system, nor any other transitional justice process can repair an entire country for the atrocities they have suffered.

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Total number of words: 8,692

Bibliography

 

• Articles

 

Andrew R. Iliff, ‘Root and Branch: Discourses of ‘Tradition’ in Grassroots Transitional Justice’, (2012) International Journal of Transitional Justice.

 

Dana Zartner, ‘The Culture of Law: Understanding the Influence of Legal Tradition on Transitional Justice in Post-Conflict Societies’, Indiana International & Comparative Law Review (2012) Vol. 22 Issue 2.

 

Eric Awich Ochen, Traditional Acholi mechanisms for reintegrating Ugandan child abductees, Anthropology Southern Africa.

 

ICTJ, ‘From Rejection to Redress: Overcoming Legacies of Conflict-Related Sexual Violence in Northern Uganda’ (2005).

Kieran McEvoy, ‘Beyond Legalism: Towards A Thicker Understanding of Transitional Justice’, (2007) 34:4 Journal of Law and Society.

Pietro Sullo, ‘Restorative Justice’, Oxford University Press, 2015.

Tilmann J. Roder, Information Justice Systems: Challenges and Perspectives, Max Planck Institute for Comparative Public Law and International Law.

Turyagenda Mabel Sheila, Justice in the Eyes of the Beholders: Restorative and Retributive Justice in Northern Uganda, 2009.

Ursula De Almeida, Reintegration of FALINTIL, Timor-Leste’s ExCombatants, Then and Now, (2017) Journal of Peacebuilding & Development.

Waldorf Lars, ‘Mass justice for mass atrocity: Rethinking local justice as transitional justice’ (2006) 79(1) Temple Law Review.

 

• Books and Contributions to Collective Books

Desmond Tutu, No Future Without Forgiveness (Rider, New York 1999).

Garrett Wallace and David Held, ‘Introduction’ in Garrett Wallace and David Held (eds), The Cosmopolitanism Reader, (2010).

John Braithwaite, ‘Traditional Justice’ in Jennifer J. Llewellyn and Daniel Philpott (eds), Restorative Justice, Reconciliation and Peace building’, (2014).

Pablo De Greiff, ‘The Role of Apologies in National Reconciliation Processes: On Making Trustworthy Institutions Trusted’ in Mark Gibney, Rhoda E. Howard-Hassmann, Jean-Marc Coicaud, and Niklaus Steiner (eds), The Age of Apology: Facing Up to the Past, Role of Apologies, (University of Pennsylvania Press, 2008).

Roger Duthie, ‘Local Justice and Reintegration Processes as Complements to Transitional Justice and DDR’ in Ana Cutter Patel, Pablo de Greiff and Lars Waldorf (eds) Disarming the Past: Transitional Justice and Ex-Combatants (Social Science Research Council, New York 2009).

Rosemary Nagy, ‘Centralizing legal pluralism? Traditional justice in transitional contexts’ in Chandra Lekha Sriram, Jemima García-Godos, Johanna Herman, Olga Martin- Ortega (eds) Transitional Justice and Peacebuilding on the Ground: Victims and Ex- Combatants (Taylor and Francis, 2012).

• Newspaper Articles

Ed Vulliamy, ‘Reckoning and Reconciliation’ The Guardian.

• Related UN Documents

Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS (CRC).

Diane Orentlicher, ‘Updated Set of principles for the protection and promotion

of human rights through action to combat impunity’, E/CN.4/2005/102/Add.1 (8 February 2005).

ECOSOC ‘Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters’ E/RES/2002/12 (24 July 2002).

International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR).

OHCHR, Human Rights and Traditional Justice Systems in Africa.

Report of the Secretary-General, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies (August 23, 2004), U.N Doc. S/2004/616.

UNDP, Programming for Justice: Access for All. A Practitioners Guide to a Human Rights-Based Approach to Access to Justice (2005).

UNDP, UNICEF and UN Women, Informal Justice Systems: Charting a Course for Human Rights Based Engagement.

 

• Websites

––– ‘Fambul Tok International’ (Project Summary in 2008) <http://www.fambultok.org/summary.html> accessed 20 July 2017.

 

Others

Sierra Leone Truth and Reconciliation Commission Report, ‘Chapter 4: Witness to Truth : Children and the Armed Conflict in Sierra Leone’ (2004) 3B.

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[1] Oxford Dictionary, Oxford University Press, 2017.

[2] Oxford Dictionary, Oxford University Press, 2017.

[3] Report of the Secretary-General, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies (August 23, 2004), U.N Doc. S/2004/616, para 7.

[4] idem.

[5] ibidem para 15.

[6] P. De Greiff, ‘The Role of Apologies in National Reconciliation Processes: On Making Trustworthy Institutions Trusted’ in Mark Gibney, Rhoda E. Howard-Hassmann, Jean-Marc Coicaud, and Niklaus Steiner (eds), The Age of Apology: Facing Up to the Past, Role of Apologies, (University of Pennsylvania Press, 2008) 125-127.

[7] Desmond Tutu, No Future Without Forgiveness (Rider, New York 1999) 35.

[8] Supra 3 para 36.

[9] Kieran McEvoy, ‘Beyond Legalism: Towards A Thicker Understanding of Transitional Justice’, (2007) 34:4 Journal of Law and Society 411, 440.

[10] Garrett Wallace and David Held, ‘Introduction’ in Garrett Wallace and David Held (eds), The Cosmopolitanism Reader, (2010).

[11] Pietro Sullo, ‘Restorative Justice’, (2016) Max Planck Encyclopedia of Public International Law, para 2.

[12] Idem.

[13] Supra 7.

[14] Phil Clark, ‘Addressing Atrocity at the Local Level : Commnity-Based Approaches to Transitional Justice in Central Africa’ in L. May and A. Forcehimes (eds), Morality Jus Post Bellum and International Law (Cambridge University Press, Cambridge 2012), 49-77.

[15] In Zimbabwe, the Tree of Life was created as a “traditional justice” mechanism, but turned out to be an invention to respond to the crisis the country was undergoing. The people of Zimbabwe did not feel connected to this mechanism; therefore the goal was not achieved.

[16] Lars Waldorf, ‘Mass justice for mass atrocity: Rethinking local justice as transitional justice’ (2006) 79(1) Temple Law Review, 1-88.

[17] Though we can argue that, being a child-soldier is more of a victim’s role rather than a perpetrator.

[18] People of the region of Northern Uganda.

[19] Eric Awich Ochen, ‘Traditional Acholi mechanisms for reintegrating Ugandan child abductees’, (2014) 37:3-4, Anthropology Southern Africa, 245.

[20] Roger Duthie, ‘Local Justice and Reintegration Processes as Complements to Transitional Justice and DDR’ in Ana Cutter Patel, Pablo de Greiff and Lars Waldorf (eds) Disarming the Past: Transitional Justice and Ex- Combatants (Social Science Research Council, New York 2009).

[21]––– ‘Fambul Tok International’ (Project Summary in 2008) <http://www.fambultok.org/summary.html> accessed 20 July 2017.

[22] Sierra Leone Truth and Reconciliation Commission Report, ‘Chapter 4: Witness to Truth : Children and the Armed Conflict in Sierra Leone’ (2004) 3B, 258.

[23] Tenth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, ‘Vienna Declaration on Crime and Justice: Meeting the Challenges of the Twenty-first Century, A/CONF.187/4/Rev.3 (15 April 2000) para 27-28.

[24] ECOSOC ‘Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters’ E/RES/2002/12 (24 July 2002).

[25] Diane Orentlicher, ‘Updated Set of principles for the protection and promotion

of human rights through action to combat impunity’, E/CN.4/2005/102/Add.1 (8 February 2005), Principle 2.

[26]idem Principle 3.

[27] Rosemary Nagy, ‘Centralizing legal pluralism? Traditional justice in transitional contexts’ in Chandra Lekha Sriram, Jemima García-Godos, Johanna Herman, Olga Martin- Ortega (eds) Transitional Justice and Peacebuilding on the Ground: Victims and Ex- Combatants (Taylor and Francis, 2012) 84.

[28] idem.

[29] infra p. 16.

[30] Rosemary Nagy, ‘Centralizing legal pluralism? Traditional justice in transitional contexts’ in Chandra Lekha Sriram, Jemima García-Godos, Johanna Herman, Olga Martin- Ortega (eds) Transitional Justice and Peacebuilding on the Ground: Victims and Ex- Combatants (Taylor and Francis, 2012) 84.

[31] Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS (CRC) Article 1.

[32] Statement by David Crane, Public Affairs Office of the Special Court for Sierra Leone, 2002.

[33] Eric Awich Ochen, Traditional Acholi mechanisms for reintegrating Ugandan child abductees, Anthropology Southern Africa, p.245.

[34] Ed Vulliamy, ‘Reckoning and Reconciliation’ The Guardian.

[35] Idem.

[36] ICTJ, ‘From Rejection to Redress: Overcoming Legacies of Conflict-Related Sexual Violence in Northern Uganda’ (2005).

[37] Supra 20.

[38] Supra 27.

[39] “All persons shall be equal before the courts and tribunals…” International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR), art 14.

[40] Lars Waldorf, ‘Mass justice for mass atrocity: Rethinking local justice as transitional justice’ (2006) 79(1) Temple Law Review, 1-88.

[41] Supra 34.

[42] Report of the Secretary-General, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies (August 23, 2004), U.N Doc. S/2004/616.

[43] Supra 27.