Transitional Justice: A Biblical Paradigm

P. Clark and N. Palmer, "Challenging Transitional Justice", in Critical Perspectives in Transitional Justice, Palmer, Clark & Granville, (eds., 2012), Cambridge: Intersentia Pub. p. 1. They so state due to the inclusion of many disciplines: "law, politics, international relations, sociology, development studies, history, philosophy, psychology, anthropology, criminology..", and now perhaps theology.
Foreign Affairs, Jan/Feb 2017 Issue. Found here: https://www.foreignaffairs.com/interviews/2016-12-12/international-criminal-court-trial

Found here: http://www.ohchr.org/EN/Issues/TruthJusticeReparation/Pages/Mandate.aspx

J. Renner. "A Discourse Theoretic Approach to Transitional Justice", Ibid. p. 56.
D. Rieff, When Collective Memory is Poisoned, it is Better to Forget, from International Centre for Transitional Justice, (May, 2016). Found here: https://www.ictj.org/debate/article/when-collective-memory-poisoned-it-better-forget To which Pablo de Greiff counters "persisting in the refusal to acknowledge great harms is itself generates new harms." Does Collective Remembrance of a Troubled Past Impede Reconciliation? Ibid.
R. Teitel, The Project of Collective Memory- an Uneasy Connection to Reconcilliation? Ibid.
Speaking to the situation in the aftermath of the Rwandan genocide. Staub, Ervin. "Constructive rather than harmful forgiveness, reconciliation and ways to promote them after genocide and mass killing" in Handbook of forgiveness (2005). p. 443-459.
J. Renner, Op.cit. p. 58.
Building a Future on Peace and Justice: Studies on Transitional Justice, Peace and Development. K. Ambos, ,J. Large, M. Wierda, (Eds.), Heidelberg: Springer Pub. (2009). p. 534.
A review of the work of the ICTR is found here: http://unictr.unmict.org/en/tribunal
R. Teitel, "Bringing the Messiah Trough Law", Globalizing Transitional Justice: Contemporary Essays. UK: Oxford Press (2014). p. 185.
R. Dworkin, Nunca Mas (1986). p. xviii.
R. Teitel, Transitional Justice, Oxford: Oxford Press, (2000). p.28.
C. Hoyle, "Can International Justice be restorative justice? The role of reparations". Critical Perspectives in Transitional Justice, op.cit., p. 208.
Building a Future on Peace and Justice: Studies on Transitional Justice, Peace and Development. op.cit. p. 1.
Ibid. p. 9.
Resolution 955 (1994), para 7, found here: http://unictr.unmict.org/sites/unictr.org/files/legal-library/100131_Statute_en_fr_0.pdf
Para 91, found here: http://www.justice.gov.za/trc/report/execsum.htm

2 April, 2009, p. 4. Found here: https://www.nelsonmandela.org/images/uploads/PAPER_-_OREGAN.pdf
Resolution A/HRC/RES/33/19 adopted by the Human Rights Council on 30 September 2016, p.3, Found here:
https://documents-dds-ny.un.org/doc/UNDOC/GEN/G16/225/83/PDF/G1622583.pdf?OpenElement
M. Jobson, "Commentary on Transitional Justice after Transition", Critical Perspectives in Transitional Justice, Op.cit. p. 491.
Transitional Justice: A Biblical Paradigm
Robert Granholm
January, 2017

Transitional Justice is an unruly arena

Transitional Justice is a form of legal or quasi-judicial proceedings in transitional societies emerging from the collective trauma of repressive authoritarian regimes. It is used, usually post conflict, in communities where the ruling powers have used the apparatus of power (including the legal structures) to institutionalize oppression and commit egregious violations of human rights norms. Transitional Justice proponents walk a fine tightrope in seeking to balance the requirements of justice, needing to avoid fracturing the already deeply strained social context, and concurrently pointing towards a future which is less burdened with collective traumas.
Too much justice can break social and political cohesion. Too little justice risks festering un-met demands for punishments proportionate to the crimes, which may lead to extra-judicial retributions. A society which continues to re-live unexpiated trauma has the potential for fostering collective ongoing anxiety, and deepen an incapacity to trust in the possibility for a social restoration. Transitional Justice is focused as much on the needs of the victims as it is on the demands of justice. Thus the current Chief Prosecutor of the ICC, Fatou Bensouda, can state: "The ICC is also the first permanent institution at the international level looking towards the victims. This is the promise of the ICC: that the victims of atrocity crimes will see that justice is done".
A loss of balance on the Transitional Justice tightrope will seriously hinder the capacity of a nation or community to create a future which looks beyond wrongs to a shared common social comity in which democratic ideals are the norm. In this arena, the Hebrew Bible speaks to us, calling over the intervening years of historical and cultural differences to universal aspirations found incarnate in today's Transitional Justice models.
Biblical Themes in Transitional Justice
Mercy and Truth are met together, Righteousness and Peace have kissed. Mercy and Truth are met together, Righteousness and Peace have kissed.A potential source of succor for the Transitional Justice tightrope walker might be found in voice of the ancient Psalmist. Psalm 85:10 speaks to the demands and parameters of this balancing act:

Mercy and Truth are met together, Righteousness and Peace have kissed.


Mercy and Truth are met together, Righteousness and Peace have kissed.

One may conceive of the four Biblical attributes identified here- mercy, truth, righteousness and peace as balancing provisions in the progression away from social tension to accommodation, from mutual exclusivity to humanization, from continuing demands for retribution to a peaceful democratic transition. They parallel the mandate of the Special Rapporteur of the Human Rights Council, stated as the "promotion of truth, justice, reparation and guarantees of non-recurrence."
In the context of Transitional Justice, these Biblical concepts might convey the following meanings:
Mercy equates with the need for at least a degree of forgiveness in the aftermath of hostilities. It does not require total and complete justice, but rather seeks to move beyond the hostilities to a fresh start. Mercy seeks to bring reconciliation to the affected parties: it is the movement towards the "creation of a functioning community which embraces victims as well as perpetrators".
Mercy affects the way conflict is memorialized. Memory of the conflict remains, but it functions more in the realm of the sacred, and it is not used to perpetrate an ongoing sense of victimhood. David Rieff suggests that in a society where the memories of conflict and its attendant traumas are so poisoned that "a radical de-emphasizing of the past in favor of the present and the future seems by far the better choice". Ruti Teitel reminds us that it is the goal of remembrance which is at issue: does remembering strive to keep conflict alive, or is it 'one of liberation, directed at unity and recreating a civic community…", i.e., memory informed by mercy. One cannot let a fog of forgetfulness descend over the crimes committed, but nor can we continue to bring them to the light of day on an ongoing basis.
Mercy is moving towards a degree of forgiveness, and a use of memory which is more suitable to reconciliation. It is also a factor which contributes to improved mental health, both at the individual and the community level. Ervin Staub writes: "One reason for the importance of forgiveness is to help improve the lives of victims; another is its supposed relationship to reconciliation". There is a personal and individual freedom which comes from ceasing to hate and seeking a future free of recrimination, even if reconciliation and restoration of broken relationships is a long and bumpy road.
Truth is a required element of Transitional Justice. There must be a recognition of the harm caused. One cannot simply pretend atrocities did not happen. South Africa's Truth and Reconciliation Committee (TRC) granted some amnesties from prosecution if the committee was satisfied that the defendant spoke the truth about his/her complicity in the crimes of apartheid. More judicial fora, such as the International Criminal Tribunal Yugoslavia, established processes of inquiry to find an objective truth. Whether via formal or informal mechanisms, truth-telling or truth-finding is an indispensable feature of justice, transitional or otherwise.
Truth-telling may abet the process of reconciliation by declaring open admission of guilt on the part of the perpetrators, as was the theoretical basis for the TRC. On an individual level, it is a means of accepting responsibility for one's participation in the crimes, and a declaration of willingness to assume the requisite responsibility. It should be noted that not all writers agree that truth-telling is as directly related to the reconciliation process as the South African model might indicate. Renner, for one, challenges the notion that such claims can be universally applied: "There is little to suggest that the assumptions inherent in the [TRC] reconciliation paradigm will hold in all cases".
Righteousness is the conviction and punishment of the perpetrators of the crimes. Righteousness is justice achieved. In the Argentinian expression of Transitional Justice, this meant bringing to account the military officers ultimately responsible for the disappearances, torture and killings of thousands of Argentinian young people. This is also a deterrence element: it serves notice that impunity does not exist. The report of the proceedings, Nunca Mas, underscored that not only must the requirements of justice be vindicated, but that it must be done so within the proper rule of law.
For the most serious of crimes, the ICC reserves the right to prosecute if the state proves itself unwilling or unable. "Amnesties cannot be given for war crimes, crimes against humanity, or genocide". This complimentary approach relegates lesser evils to the purview of domestically construed processes.
The tribunals established by UN statute are more legally formalistic than the TRC model, and establish legal presidents for use elsewhere. The International Criminal Tribunal Rwanda (ICTR) passed sentence on 93 leaders of the genocide, and broadened the definition of genocide to include rape and the use of media to incite genocide. Transitional Justice forums are therefore used to develop jurisprudence of righteousness for a broader applicability. Ruti Teitel notes similarly, in commenting on ICTY, that these forums "embrace a project of transformative justice that will enforce these universal norms" (i.e. crimes against humanity).
Yet the punishing of perpetrators may work against the purposes of social cohesion. In the case of Argentina, low ranking soldiers who were not directly involved with torture or killing may yet avoid legal proceedings, as Argentina "needed to bury its past as well as to condemn it, and many citizens felt that years of trials would undermine the fresh sense of community…" which has recently been established in the recent elections.
Righteousness might also be an important element in creating a distinction between the regime which perpetrated harm, and the one that seeks to redress it. Teitel writes that trials of the former regime "are said to be politically useful in drawing a line between regimes, advancing the political goals of the transition by delegitimating the prior regime and legitimating its successor". Righteousness as justice serves to underscore and support political transitions.
This concept would also include a notion of reparations. The past cannot be undone, but some measure of satisfaction for losses suffered is required. Reparations might include "the return of stolen property, the location and identification of the bodies of the missing, apologies, a return to life without fear, and adequate resources to help rebuild their communities"
Peace is the goal of the process: an end to hostilities, and a means to move society (and its affected individuals) towards a more inclusive, and better functioning collective. Peace is an outcome of the process of righteousness, and the potential result of truth finding. Peace is the incarnation of mercy in the social sphere. "Fighting impunity and pursing peace…work in tandem" says Ban Ki Moon. "Lasting peace requires justice" writes the first ICC chief prosecutor Luis Occampo. The goal of Transitional Justice is not simply to put people behind bars: it is to reconcile civil society, and to create the framework for lasting democratic transition. The UNSC resolution which established the authority of the ICTR stated that "the prosecution of persons responsible for serious violations of international humanitarian law would …contribute to the process of national reconciliation and to the restoration and maintenance of peace". Bishop D. Tutu, in his remarks in the final report of the South African TRC, writes:
"Having looked the beast of the past in the eye, having asked and received forgiveness and having made amends, let us shut the door on the past – not in order to forget it but in order not to allow it to imprison us. Let us move into the glorious future of a new kind of society where people count, not because of biological irrelevancies or other extraneous attributes, but because they are persons of infinite worth created in the image of God …".
These biblical themes (and sometimes, as in Tutu above, using biblical language) then are found to be consistent with the conceptualization and practice of various recent Transitional Justice expressions. One might chart the relationship as follows:
Justice, accountability, and deterrenceJustice, accountability, and deterrenceReconciliation & restorationReconciliation & restoration
Justice, accountability, and deterrence

Justice, accountability, and deterrence

Reconciliation & restoration
Reconciliation & restoration
RighteousnessRighteousness
Righteousness
Righteousness

MercyMercyTruthTruth
Mercy
Mercy
Truth
Truth
Forgiveness, mental health & memory useForgiveness, mental health & memory useHonesty, reparations, & social cohesionHonesty, reparations, & social cohesion
Forgiveness, mental health & memory use

Forgiveness, mental health & memory use

Honesty, reparations, & social cohesion
Honesty, reparations, & social cohesion
PeacePeace
Peace
Peace


Biblical idealism, however, is easily thwarted in the 'unruly arena' of reality. The world is messy, and competing social demands, economics, political compromise, limited enforcement capacity, and a mis-use of memory call all easily lead to derail such meeting and kissing.
Biblical Themes in moving from Transitional Justice to Transitional Societies.
Communities which have been abused and traumatized by deep, flagrant and systematic human rights abuses need more than Transitional Justice alone can deliver. These societies require assistance in creating and maintaining a democratic social framework which gives confidence that such atrocities cannot and will not re-occur. Transitional Justice creates momentum towards this goal by allowing at least a partial catharsis of wounds, a sense of allowing the past to no longer dominate the demands of the present, and permit the possibility of establishing a joint hope for the future.
These very issues are reflected in the Biblical conception of the Messianic rule- a political aspiration which moves from justice to social constructs. Psalm 72 (selected):
Endow the king with your justice, O God,
 May he judge your people in righteousness,
your afflicted ones with justice.
May he defend the afflicted among the people
and save the children of the needy;
may he crush the oppressor.
He will take pity on the weak and the needy
He will rescue them from oppression and violence,
for precious is their blood in his sight.
The Messianic ideal is one in which Transitional Justice leads to a stable government, where the rights of the weak are respected and their concerns are enshrined in the sovereign's ongoing interest in the creation of a society where justice, righteousness and peace are hallmarks.
Transitional Justice which does not lead to a transformed society is justice aborted before the full term of transformation can be accomplished. Kate O'Regan, speaking to the Nelson Mandela Foundation, stated that transitional justice does not end when the last trials are held, but rather moves society towards "a democratic conception of justice which is both compassionate and principled and makes the best sense of both the past and the constitutional vision for our future". The Human Rights Council sees the forward momentum of the Transitional Justice road as one in which the process will "restore confidence in the institutions of the State and promote the rule of law in accordance with international human rights law", although the nature of the State might be very different than that which proceeded it.
The TRC paved the way for a constitutional protection of human rights, a continuing defense for the weak- a road for the Messiah to walk in moving towards the ideal of social and political transformation. So agrees Marjorie Jobson: "It is this quality of justice that can contribute to creating a society in which there are not more victims or perpetrators, beneficiaries or bystanders, - a society that can break through the barriers of these categories via the process of mutual humanization".
Such idealism often only dimly reflects contemporary reality, yet they point to a future in which the prospect for harms are greatly lessened- an alternative not yet perfect, but far preferable to that which created the need for Transitional Justice. The Messianic ideal cannot be found to be the enemy of progress.
Conclusion
Biblical themes provide another source of support and guidance for Transitional Justice approaches. They remind and reinforce the notion that the requirements of righteousness and truth are not, in and of themselves, sufficient for Transitional Justice. Peace and mercy are co-equal requisites, which moderate and adjust justice demands, tempering them for the sake of communal and personal mental health, creating conditions for peace along a trajectory towards a Messianic social and political ideal. The Transitional Justice tightrope walker needs to balance the demands of truth with mercy, righteousness with peace. Who could not shout out a Biblical 'Amen' to that?