Regionalisation of Transitional Justice Frameworks in Africa and Europe

In this blog post, Valerie Arnould, compares and contrasts the transitional justice policy frameworks adopted by the African Union and the European Union. Alongisde the elements of converge, she highlights the differing regional conceptions about the place of criminal justice and the objectives of transitional justice.

This commentary first appeared on  the Leuven Transitional Justice Blog.

(Photo credit: EgmontInstitute)

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Transitional justice’s uneven path in the DRC

In February 2019, the African Union (AU) adopted its Transitional Justice Policy (AUTJP) following an extensive consultation process with civil society organisations and AU member states. This was the second regional framework on transitional justice to emerge, following the European Union’s (EU) adoption of a Policy Framework on Support to Transitional Justice in November 2015. This constitutes an important development as it not only represents a growing institutionalisation of transitional justice but also a potential diversification of conceptualisations of transitional justice. At the level of scholarship, contentious debates about the exact nature and scope of transitional justice have been longstanding. But at policy level, the conceptual framing of transitional justice has been largely dominated by the United Nations, which has produced an extensive body of reports and policy documents. Divergences between states over the nature of transitional justice, its objectives, and how it relates to other policy priorities have been increasingly evident but have largely remained unstated. With the adoption of two regional frameworks on transitional justice, we now have an opportunity to examine if and where possible political and normative disagreements around transitional justice, as a concept and a practice, may exist.

There are important convergences between the EU and AU’s transitional justice policy frameworks. Both strongly advocate for a comprehensive approach to transitional justice as well as a victim-centred approach. In addition, both emphasise the importance of transitional justice processes being locally owned and involving the participation of a broad set of stakeholders. The role of civil society in advocating for, designing and implementing transitional justice processes is especially recognised, and both policy documents set clear commitments by the EU and AU to support such civil society initiatives. Both organisations also call for transitional justice mechanisms to pay special attention to the needs of vulnerable populations, especially women and children – with the AUTJP broadening it by also including persons with disabilities, internally displaced persons and older persons.

However, there are also some significant differences between the EU and AU policy frameworks on transitional justice. Here I will highlight two of these differences, which relate to the place accorded to criminal justice in transitional justice and to the objectives of transitional justice.

The place of criminal justice

The EU and AU both recognise a role for criminal justice as a means of pursuing accountability and redress. But there are some significant differences in where they position criminal justice in the overall transitional justice ‘architecture’. The EU endorses a comprehensive approach to transitional justice whereby ‘transitional justice measures should not be seen in isolation from, or in competition with, each other but rather as mutually reinforcing’ (page 9) and acknowledges the role that non-judicial mechanisms can play in transitional justice. But a closer scrutiny reveals that the EU policy framework frames criminal justice as standing at the apex of a transitional justice pyramid: there exists a hierarchy between transitional justice mechanisms, in which criminal justice is seen as the preferred instrument. For instance, the document states that transitional justice mechanisms such as truth commissions or traditional/informal justice mechanisms should not act as substitutes for criminal prosecutions (p. 6 – the reverse, i.e. that criminal prosecutions are not a substitute for truth commissions or informal justice mechanisms, is not stated in the document). Its policy framework furthermore affirms that such mechanisms need to ‘respect international norms and standards’ (p.9). While it is important for transitional justice mechanisms not to perpetuate exclusions and rights violations, such an approach has also been criticised for leading to an increased judicialisation and strait-jacketing of non-judicial and local transitional justice practices, which can be to the detriment of their effectiveness.

That such a position is adopted by the EU is not surprising as it closely aligns with the broader normative preferences which underpin both its internal and foreign policies, namely human rights promotion, the rule of law and compliance with international law. It also reflects its own experience of a growing judicialisation of politics and the resort to courts when addressing human rights violations. But these preferences are not necessarily shared by others, and the AUTJP promotes a less-hierarchical view of transitional justice, in which criminal justice exists at an equal level to non-judicial mechanisms and where accountability is not a more important goal than conciliation and restitution (§77). The AU adheres to the view that the desirability of criminal justice is not a given and should be weighed against the needs of the society in question and its cultural, political and security context (a view also taken in the African Commission on Human and Peoples’ Rights (ACHPR) Study on Transitional Justice and Human and Peoples’ Rights in Africa, a document which accompanies the AUTJP). As a logical extension, both the AUTJP and ACHPR study accord a greater role to traditional and community-based justice mechanisms in transitional justice than does the EU.

The AUTJP does establish a hierarchy within criminal justice approaches: national trials are defined as being preferable, followed by special, extraordinary or hybrid courts. Regional or international courts are seen as a last-resort mechanism only. Unsurprisingly, considering African states’ fractious relations with the International Criminal Court (ICC), support for the ICC is not mentioned at all in the document. In contrast, the EU is a long-standing and vocal supporter of the ICC and reaffirms this in its transitional-justice policy framework. This being said, it is clear from the EU policy framework and its emerging practice, that the EU considers that developing national capacities to enable states to investigate and prosecute war crimes, crimes against humanity and genocide is also a central component of its transitional justice agenda.

Lastly, the differing weight given to criminal justice within the framework of transitional justice is also reflected in the somewhat divergent positions adopted by the EU and AU on amnesties. Both reject the adoption of blanket amnesties for war crimes, crimes against humanity and genocide. However, the AUTJP leaves more leeway for the adoption of conditional amnesties where these may support peace processes and facilitate the pursuit of transitional justice objectives (§89). The document also sets out criteria for amnesties, such as transparency, impartiality and the need for them to be accompanied by truth-telling and reparations initiatives.

Transitional justice objectives

Another area where the EU and AU policy frameworks diverge is in their respective framings of the objectives of transitional justice. The EU adheres to a classical view of transitional justice’s core objectives: ending impunity, redress for victims, fostering trust, rule of law and reconciliation. Within this framework, justice is very much understood to overlap with accountability and is seen as standing separate from reconciliation. While transitional justice can contribute to reconciliation, the EU document expressly states that reconciliation ‘must not be conceived as an alternative to justice’ (p.3). This phrasing reflects an intent to prevent a proclaimed ‘need for reconciliation’ from being used by states to avoid engaging in transitional justice – particularly in accountability efforts – but it can also have the effect of perpetuating unnecessarily dichotomous views between justice and reconciliation. Finally, the EU also places much emphasis on transitional justice’s role in supporting institution-building, which reflects the part that support for security and justice sector reform plays in the EU’s overall conflict management and human rights and democracy promotion policies.

The AU, in contrast, places greater emphasis on the need for transitional justice to contribute to reconciliation and healing, alongside justice. Its language on transitional justice’s role in combating impunity is more diffuse. Overall, the AU policy framework seems to place a greater premium on transitional justice’s societal goals, such as social justice, social cohesion, national reconstruction and healing, reconciliation and diversity management. While institution-building is not entirely absent from the document (§93-98), it is clearly not seen as transitional justice’s primary task, and no mention is made of transitional justice’s oft-claimed role in building democratic societies.

Furthermore, the AU adheres to the view that transitional justice’s scope should be expanded to not only address legacies of armed conflicts but also to ‘come to terms with the traumas of slavery, colonialism, apartheid, systematic repression’ (§2). The AU policy framework further calls for transitional justice to be mobilised as an instrument for socioeconomic transformation (§10-iii). The objective of transitional justice is therefore not only to provide accountability and victims’ redress but also to promote socioeconomic justice and inclusive development by tackling such issues as land reform, affirmative action development policies and resource-distribution (§17 and §67-70). The EU policy framework also recognises the existence of a link between transitional justice and development, and the need for transitional justice to tackle the ‘root causes of conflict and violence that may reside in discrimination, marginalisation or violation of social, economic and cultural rights’ (p.12). But it remains vaguer on what this entails in practice. In both instances, the policy frameworks leave open the more controversial point of whether transitional justice should also address economic crimes.

This summary overview of the EU and AU policy frameworks offers some preliminary insights into the connecting points and divergences in their views on transitional justice. Of course, these documents only tell part of the story, and how both regional organisations will choose to implement them will reveal even more about their respective approaches to transitional justice. At present, the greatest challenge for the EU and AU may well lie in finding an agreement on the role external partners should play in transitional justice. The AUTJP expresses a degree of hostility towards the involvement of international actors in transitional justice on the continent, wanting instead to prioritise locally and nationally driven processes as well as local and regional experts. The AUTJP is intended as a set of guidelines for AU member states pursuing transitional justice within their own borders, rather than setting out a detailed policy on AU action for support to transitional justice. In contrast, the EU policy framework formulates an agenda for action for the EU to streamline support for transitional justice in its foreign policy actions. The EU thus envisages a space of intervention for itself in third countries as part of its broader agenda of promoting human rights, rule of law and peace abroad. Consequently, in practice, some frictions may emerge over who has a legitimate voice in defining, implementing and evaluating transitional justice policies.

Dr. Valerie Arnould is Senior Research Fellow with the Africa Programme at the Egmont – Royal Institute for International Relations. She is also a research associate at the Leuven Institute of Criminology, University of Leuven, and a visiting lecturer at the Brussels School of International Studies – Kent University. Her research focuses on justice and (in)security dynamics in Central Africa, the politics and impact of transitional justice, and peacebuilding.

(Photo credit: Leuven Transitional Justice Blog – LTJB)