An Absence of Accountability

Abstract

Transitional justice (TJ) is emerging as the prevailing method for addressing large-scale societal conflicts—be they post-war or a response to entrenched structural injustice. While TJ has more commonly been associated with countries facing “periods of rupture,” typically in the form of a civil war, military dictatorship, or genocide, TJ may prove effectual in responding to “Steady-State” (SS) violence —defined as when “contemporary conditions of persistent conflict . . . [create] a normalized law of violence.” SS countries such as Northern Ireland, Canada, Aotearoa New Zealand, and Australia have used or have proposed using TJ mechanisms. Now considered an essential part of peacebuilding praxis, TJ is increasingly commonplace. Scholar Makau Mutua poetically contends that “in many circles, transitional justice has become an article of faith as a catalyst for reclaiming societies in political and social imbalance and dysfunction.” Several “phases” of TJ exist that have used a variety of tools to effectuate societal stabilization; however, truth and reconciliation commissions (TRCs) are the primary mechanism for practical application. TRCs are evolving as experimental laboratories that establish theoretical concepts of peacebuilding.

The aims of TRCs are laudable and worthy of persistent pursuit—seeking increased democratization and citizen empowerment, acknowledging the atrocities survivor/victims (S/Vs) suffered, addressing the needs borne of S/Vs, preserving an official historical record of atrocities, and attempting to right those past injustices—even while some questions regarding their overall efficacy remain. In the past, TRCs have struggled to successfully move from truth-telling to reconciliation. Recommendations frequently are left unfulfilled and the healing promoted by the process never fully arises. Justice again denied. Though truth is a necessary precursor for reconciliation, truth alone cannot produce it. TRCs have also become “hostage to configurations of political power that condition the terms of peace agreements, underscore the legitimacy of incoming regimes[,] and perform a nation-building function.”

Thus, TRCs have both the potential for ushering in new, generative paradigms for society’s collective existence, liberation, and conversely the potential to legitimize state power—explicit and implicit laws, policies, practices, and persistent power imbalances—that created and/or sustained the conditions for mass discrimination and dehumanization.

So how should fractured societies create and refine effective TJ models, specifically TRC processes? How might they best create pathways for individual and collective accountability capable of recognizing and responding to a vast range of differing “modalities of violence” and “form[s] of structured dispossession” from the obvious to the insidious? Can TJ mechanisms successfully widen the web of accountability for individuals, communities, states, and institutions while providing iterative accountability as well? Is it possible to create processes that provide generative, productive, dialogic exchanges that would enable appropriate reconciliation through transfers of knowledge, resources, and power?

This Article addresses some of those questions. While previous scholarship, of others and this author, has examined the discursive limitations and challenges of truth collection, this Article focuses on the process of moving from truth to reconciliation, with an eye toward enhancing accountability. Part I delves further into the phases of TJ as identified by Ruti Teitel’s Transitional Justice Genealogy. Part II discusses the theoretical conceptions of accountability and the importance of deliberative accountability in fostering democratic societies. Part III explores accountability jurisprudence and praxis, focusing on the importance of embedded, established, and emergent accountability mechanisms. Finally, Part IV concludes with conceptual frameworks of accountability.