Introduction

Thank you, Principal Deputy Assistant Secretary Crenwelge, for the kind introduction, as well as for highlighting the role of the Department of State in pursuing inclusive atrocity prevention efforts as part of a toolkit to promote justice, accountability, and sustained democracy.  And thanks to USIP for being such a leader in this space and for convening important conversations around peace and justice. Indeed, USIP played an important role in launching this field in the 1990s with the publication of Neil Kritz’s three volume set on the theory and practice of transitional justice.

Transitional Justice, Peace, and Democracy

As we convene for the second Summit for Democracy, countries around the world are facing mass violence and authoritarianism—forms of instability and fragility that beget repression, violence, and human rights violations, and that both threaten and undermine democracy.  The field of transitional justice—which encompasses a range of measures that are judicial and non-judicial, formal and informal, retributive and reconciliatory—provides a set of tools for war-torn societies to address legacies of mass violence, authoritarianism, and impunity.  A comprehensive transitional justice program will encompass measures addressed to justice—broadly defined—but that also includes truth-telling, reparation, memorialization and historic memory, institutional reforms, and other guarantees of non-recurrence.  For a program to be effective, it must be inclusive and reflect the preferences of the segments of the community most affected by violence, including women and racially and ethnically marginalized communities.  As these mechanisms are layered and sequenced, transitional justice can promote accountability for gross and systematic violations of human rights, rebuild social cohesion, rehabilitate victims and survivors, restore trust in formerly abusive institutions, and prevent the recurrence of such violations.  Transitional justice thus offers a critical avenue to building a durable peace, an inclusive society, a thriving democracy, and greater prosperity.

These processes are actively being pursued in several post-conflict and post-authoritarian societies around the world.  To highlight a few notable examples. In Colombia, a comprehensive peace accord ended a half-century of internal conflict that had led to mass displacement, forced disappearances, and other atrocities, including sexual and gender-based violence.  The peace accord finally gave voice to victims and survivors, including women and girls, in pursuing just, truth, and reparations. I enjoyed meeting with a delegation from Colombia yesterday during the US-Colombia High Level Dialogue to learn more about the implementation of this multifaceted and sophisticated transitional justice program that is providing a new model for societies around the world.

In Ethiopia, the Cessation of Hostilities Agreement signed in November 2022 ended two brutal years of civil war in which all parties to the conflict perpetrated sexual and gender-based violence.  The Government and the Tigrayans have committed to implementing comprehensive transitional justice with accountability for such abuses and violations, in line with the African Union Transitional Justice Policy, and is embarking on a series of public consultations to inform this process.  For such transitional justice to be true and meaningful, however, it must incorporate the participation of women.

In The Gambia, the country and its citizens are facing the legacy of Yahya Jammeh’s two decades of authoritarian rule.  Their model Truth, Reconciliation, and Reparations Commission heard from more than 400 witnesses to the abuses of the Jammeh region.  The country now must ensure that those responsible are held accountable and victims are made whole. In this regard, negotiations with ECOWAS over the establishment of a regional hybrid tribunal are welcome. Finally, Ukraine is actively pursuing prosecutions in the midst of Russia’s full-scale invasion but will inevitably need to turn to other elements of transitional justice when the guns fall silent, particularly with respect to Russian-speaking communities in the East.

Challenges to Transitional Justice

Notwithstanding the proven societal benefits of transitional justice, calls to pursue these measures still face significant resistance from individuals and groups afraid to face their own responsibility for abuses and from deficits in political will. In addition, efforts to pursue transitional justice can be forestalled when persons alleged to have facilitated the commission of, or directly perpetrated, abuses remain in positions of power and authority.

Sri Lanka has faced cycles of violence over many decades—including civil war, terrorism, insurrection, and political repression, with United Nations investigations finding reasonable grounds to believe that war crimes and crimes against humanity have occurred.  In 2015, a new post-conflict government made formal transitional justice commitments, including pledges to ensure remedies for victims and survivors, pursue accountability for perpetrators, and make needed institutional reforms.  Largely due to a lack of political will and an unwillingness to acknowledge that state actors also committed atrocities, the current government has largely failed to honor these commitments.  The transitional justice mechanisms it has established—the Offices of Missing Persons and Reparations for example—have not resolved cases, do not have the support of victims and survivors or civil society, and appear to have been instrumentalized to advance impunity rather than pursue trust and justice.  Sadly, the instability in Sri Lanka is proof that transitional justice is not just a box-checking process.

In Guatemala, independent judicial actors, anti-corruption champions, civil society organizations, and members of the media who would expose these abuses have experienced persecution and harassment.  We note with concern that many of these actors are being targeted precisely because of their roles in seeking to carry out transitional justice or to pursue accountability for atrocity crimes.  In particular, judges and prosecutors previously involved in the International Commission Against Impunity in Guatemala (CISIG) and the ongoing historic Diario Militar case are being intimidated, threatened, criminally charged, and forced into exile, all for trying to shine a light on injustices in the past.

In Liberia, following 14 years of a civil war characterized by widespread killing, torture, forced displacement, and forced recruitment of child soldiers that devastated the country and its citizenry, an historic Truth and Reconciliation Commission created space for victims and survivors to engage in truth-telling in an effort to achieve peace and reconciliation.  However, no Liberians have been held accountable in Liberia for their crimes; instead, the only justice Liberians have enjoyed has occurred in courts elsewhere, including here in the United States. Many of those most responsible remain in prominent positions in the Government, where they continue to prevent progress on accountability, entrench impunity, and block victims from seeking justice. Recent efforts within civil society and some government actors, however, reveal that the quest for justice remains alive.

The Critical Nature of All Forms of Transitional Justice

The imperative to pursue transitional justice is clear, and a range of different retributive approaches and restorative mechanisms exists, encompassing trials, lustrations, truth-telling, rehabilitation and reparation, memorialization, and guarantees of non-repetition.  Different forms of justice can address the continuum of needs expressed by victims and survivors, including individual and collective reparations.

Nonetheless, each country’s transitional process is unique, and balancing and prioritizing the different available mechanisms is context dependent.  Such responses to violence may even be sequenced if there is resistance to particular interventions by parties that remain in power.  Resistance to pursue criminal accountability, for example, may make the path to restorative approaches more attainable or more responsive to the needs of a community at a given time.  However, across the globe we see that victims and survivors continue to demand some measure of accountability, and we know from comparative academic research that longstanding impunity is a significant risk factor for the recurrence of violence.  The more comprehensive and inclusive a transitional justice process is, the greater its prospects are for long term success.

Forgiveness and reconciliation are often seen as important aims of transitional justice processes.  While these are of course desirable outcomes, they cannot be forced upon communities. All a transitional justice program can do is to create space for these processes to happen organically. This attests to the critical importance of designing transitional justice processes around the voices, experiences, and needs of victims and survivors.  In the words of John Braithwaite, a pioneer of the restorative justice movement: “Forgiveness is a gift victims can give. We destroy its power as a gift by making it a duty.”

Ensuring Inclusion in Transitional Justice Processes

In designing a transitional justice program, it is vital to implement gender-sensitive approaches that allow for the meaningful inclusion of women and girls in all their diversity; without them, the legacies of violence will never be fundamentally addressed.

The Women, Peace, and Security (WPS) agenda has led to international recognition of the need to integrate women’s full, equal, and meaningful participation in peace processes.  Their participation—and, importantly, their leadership—can ensure that the needs, perspectives, and experiences of disadvantaged and marginalized communities, including rural communities, indigenous communities, and others, are integrated into peace processes and transitional justice mechanisms.  Gender-sensitive approaches include a focus on sexual and gender-based violence, which is important in combatting impunity, confronting gender inequalities and norms, and providing redress to victims and survivors.  When examining accountability for atrocities, it should be assumed that gender persecution has occurred and that systemic inequalities have played a role in creating the environment for persecution. Colombia is a model for not only layering these different transitional justice processes but also for implementing extensive gender-sensitive measures that have enabled the voices of women and girl survivors to be heard and for the perpetrators of sexual and gender-based violence to be held accountable.

Yet as we look at transitional justice processes around the world, not all victims and survivors are able to exercise this degree of leadership or have their voices heard, considered, and acted upon.  Nor is the inclusion of marginalized communities in truth-telling or in rehabilitation and reparation mechanisms guaranteed.  Indeed, in some contexts, the voices of marginalized communities are intentionally silenced, erased, and ignored.

Heinous forms of violence are perpetrated against persons due to their sexual orientation or gender identity, including being lashed to death, burnt alive, brutally humiliated, and tortured, among other inhumane acts.  Despite widespread recognition that structural gender inequality results in the disproportionate impact of violence against women and girls, the same recognition does not extend to violence against lesbian, gay, bisexual, trans, queer, and intersex (LGBTQI+) persons in existing transitional justice processes, even though these forms of violence have been used by armed actors to simultaneously ingratiate themselves in society and instill fear in communities.  Likewise, sexual and gender-based violence against men and boys—especially in detention settings—is also repeatedly ignored, largely due to entrenched stigmatization.  Atrocities are strategically and tactically committed on the basis of severe marginalization and prejudice premised on entrenched gender norms.  These blind spots can structurally limit the ability of these processes to comprehensively address the range of violations experienced and to ensure that peace and democracy are sustainable.  It is time that the recognition of the linkages between violence and stigma is extended to all persons, especially as violence against LGBTQI+ persons is heightened across the globe—such as in Afghanistan, where the Taliban has increased persecution of LGBTQI+ persons, by such acts as public flogging, gang rape in detention, and forced marriage.

Conclusion

Transitional justice is often initiated in the final phases of conflict or in the post-conflict period, when the guns of have been silenced.  In some contexts, however—like in Syria—the international community has encouraged laying the foundation for transitional justice while the conflict still rages.  This can send a clear message that perpetrators, regardless of affiliation, will be held to account; aim to deter further abuses; and socialize the value of a holistic and inclusive transitional justice processes.

I look forward to hearing from the representatives of Colombia, The Gambia, and Ukraine here today, as they speak to the justice and accountability processes currently underway in their countries.  Each of these paths to justice is unique and context-specific, but it is important that the international community, in a spirit of partnership, encourages transparent, inclusive, and survivor-centered transitional justice, in all its many forms.

U.S. Department of State

The Lessons of 1989: Freedom and Our Future