Emerging Voices: Making Room for the Distributive in Transitional Justice

[Matiangai Sirleaf  is a Sharswood Fellow, University of Pennsylvania Law School. B.A. New York University; M.A. University of Ghana-Legon; J.D. Yale Law School]

The knee-jerk reaction to institute formal transitional institutions like trials or truth commissions following massive violence needs to be seriously rethought.  For one, it is not evident that societies recovering from mass atrocity will undoubtedly want to pursue truth-telling or trials.  For example, surveys conducted in Sierra Leone and in Liberia indicate that punishing perpetrators was a low priority for victims.  Additionally, data compiled for the truth commission in Liberia indicates that less than 5% of statement givers recommended utilizing a restorative or retributive justice approach.  As such, much more attention needs to be given to truly “victim-centered” approaches following mass violence.  One that attempts to respond to the needs of survivors of human rights violations for a more transformative form of justice, which places meeting basic needs (those needs that are central for survival including food, health, shelter, sanitation and education) front and center.  For instance, in Liberia, a survey conducted by the Human Rights Center at U.C. Berkeley found that 45% of respondents indicated that the top priorities for victims were the “provision of housing” and “education, for their children.”  During my field research in Liberia and Sierra Leone, interviewees also did not indicate that any of these priorities were in particularly large supply prior to the conflicts.  If anything, they expressed sentiments indicating that they were already marginalized and the conflicts just further exacerbated their precarious positions.

These findings suggest that the overwhelming faith that scholars and practitioners place in international criminal justice and formal transitional institutions to adequately respond to gross atrocities is misplaced.  Transitional societies particularly following a conflict, are marked by injustice.  In these societies, people do not simply experience injustice through specific acts of violence orchestrated by a couple of bad actors, but mainly through widespread structural forms of violence.  Structural violence can include systematic discrimination in employment, land deprivations, forced deportations or removals, structural inequalities for particular groups or ethnicities in terms of access to political power, in voting or legislative representation, cultural power, or access to education amongst others.  Liberia and Sierra Leone are paradigmatic cases of this.  In Liberia, 60% of the respondents to the Human Rights Center at U.C. Berkeley’s survey indicated that “greed and corruption” were the root causes of the conflict, with 40% attributing it to ethnic conflict, 30% to poverty and 27% to inequality.  Yet, historically, transitional institutions have not been specifically designed to address many of these root causes of conflict.  Indeed, much of the existing literature ignores the particularities of post-conflict societies when designing transitional institutions.

The large number of those seeking redress in post-conflict societies, as well as the enormous number of perpetrators who must also be integrated back into society, means that a thicker conception of justice is required.  One that goes beyond the confines of the legal institutions usually employed and impacts the lived realities of those that have been affected by war in some tangible way.  In post-conflict societies, it is far less likely that a quick-fix mechanism such as a truth commission or a court alone would be able to address the underlying causes of conflict.  Distributive justice approaches are both forward and backward-looking seeking to improve political and socio-economic conditions overall, but without presuming equality or ignoring historical grievances.  The reason for pursuing distributive justice approaches is simple – by addressing real (and perceived) distributive inequities, we can help to prevent future conflicts.  Accordingly, distributive justice efforts cannot afford to be treated as mere afterthoughts (if conceived of at all), where the aim of transitional institutions is to address the underlying causes that led to massive human rights violations.  In short, scholars and practitioners need to broaden the scope of the post-conflict “tool-box” and pay much more attention to the use of distributive justice approaches following mass violence.