Transitional Justice Cascades

Abstract

Mainstream discussion about transitional justice swings between the International Criminal Court (ICC), hybrid and national criminal justice responses. Fieldwork in former Yugoslavia (as part of the Peacebuilding Compared Project) inform integration of a three-level transitional justice response, which minimizes criminal justice intervention for lower-level actors and maximizes impact at the top. A bottom level is a restorative justice response that has the task of addressing the greatest number of individual offenders (mainly foot soldiers and low-ranking military officials) and their victims. Instead of court trials, the primary transitional justice mechanism would be a reparation and reconciliation commission, established and supported by a specialized international unit designed for that purpose (International Reparation and Reconciliation Support Unit - IRRSU). The IRRSU would be affiliated with the United Nations and it would move from one post-conflict region to another to provide support where it is needed. Yet the Commission itself would be locally based and composed of local members. Its primary task is reconciling communities and providing reparations to victims, but the hope is that the positive impact of restorative justice would cascade beyond that. Restorative justice would aim to stop denial policies at their root, provide immediate reparations to victims and move quickly to help collect the evidence about individual crimes when there is a need to move up the criminal enforcement pyramid. The bottom-level national response would boost the efficiency of a mid-level internationalized response. Mid-level response would be composed of an international transitional justice unit (ITJU) integrated into national criminal justice administration. The ITJU, also established by the UN or in cooperation with major regional organizations, would move from one post-conflict region to another. It would include international staff (judges, prosecutors, police, military and other peacebuilding professionals). The ITJU would work with national judiciaries and police to indict and arrest middle-ranking officials and those who failed to cooperate at the bottom level. Uncooperative low level defendants would be given a second chance to cooperate in a plea-bargaining process. Finally, the top response would process the high-ranking officials who are most responsible for mass atrocities (including heads of state, defense ministers and generals). These individuals would be tried at the ICC because post-conflict national criminal justice administrations, even where there is strong international support, typically struggle in such cases to deliver fair trials that provide adequate satisfaction to victims.

Keywords: transitional justice, justice cascade, post-conflict justice, international criminal justice, restorative justice, peacebuilding

JEL Classification: K33, K14, K19, K39, K42, K43