The Failure of Top-Down Approaches to Transitional Justice: What Iraqis and Syrians Teach Us

13. Dezember 2018   ·   Habib Nassar

Too often, the international community has been oblivious to the immediate needs of victims and communities in Iraq and Syria. Victims’ and civil society’s participation in transitional justice processes is therefore essential to a successful, inclusive, and comprehensive provision of justice. The German government should learn from local actors and empower them to actively participate in transitional justice efforts.

Contributors to this blog have highlighted the key issues that justice initiatives in Iraq and Syria need to address. In her post, Saretha Ashraph concluded that a broader reach of transitional justice may be needed for Syria, while Osama Gharizi insisted on the divisiveness and selectiveness of past justice measures in Iraq. I will reflect on the wrongdoings, injustices or grievances that require particular attention and consider what processes would shape the appropriate justice policies to address them, while tackling some of the challenges raised in the aforementioned articles.

Understanding needs and grievances  

During a roundtable on justice held in Duhok, northern Iraq, in the fall of 2016 with representatives of communities from the Nineveh governorate, an area particularly affected by ISIS and the subsequent anti-ISIS campaign, I was struck by the gap between affected communities and those in the international community who seek to assist them. While thousands of miles away in New York, UN Security Council members were discussing Resolution 2379 to establish an independent team to support efforts to hold ISIS accountable, the people in Duhok, who had been directly affected by these abuses, presented needs going far beyond criminal justice.

While accountability for the horrific crimes perpetrated by ISIS was considered essential, participants focused on their communities’ more immediate needs and decades-old historic grievances. Their needs included the exhumation and identification of bodily remains in dozens of mass graves left by ISIS in Sinjar. They also sought reparations for their displacement, the destruction of homes, and stressed the importance of schools and infrastructure to disenclave a historically marginalised area. The participants also emphasised the need to address discrimination against Yazidis and the progressive marginalisation of Sunni communities since 2003.

These needs illustrate the complex and multi-layered legacies of abuses that local communities expect Iraqi authorities and the international community to address. For affected communities, justice is not only about prosecuting perpetrators, but also about creating mechanisms to resolve property problems; efforts to determine the fate of the disappeared; reparations for those displaced; and policies to address historic injustices. Yet none of these issues have thus far received the level of attention they deserve from policymakers, neither nationally nor internationally.

Top-down approaches fail to take the real needs of victims into account

Similarly, my work with Syrian groups of former detainees and families of the disappeared revealed that criminal accountability while critical, would not be a sufficient response to more immediate needs, such as accessing rehabilitation services or knowing the fate of the disappeared.

The divergence between the priorities of policymakers and the real needs of communities is symptomatic of a widespread problem in transitional justice policymaking: a top-down approach that fails to consult, let alone associate, survivors and affected communities with the design of justice policies and measures aiming to alleviate their suffering and uphold their rights. The danger of such exclusionary approaches is not only their failure to address the immediate needs and grievances of affected groups, but also their disenfranchising effect on survivors. Policymakers often overlook the transformative effect that participation in transitional justice processes has on victims. It represents a first step towards upholding their rights and recognising the suffering they endured. Involving victims in policymaking helps victims regain their agency, dignity and citizen’s role, and prevents the marginalisation of affected communities.

The active participation of victims in transitional justice processes is essential

In transitional justice, the processes of prioritisation, policy design and implementation are as important as any end result that subsequent justice measures deliver. Accordingly, the UN Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence urges “those responsible for the design of transitional justice measures not to think of victim participation as marginal, but to incorporate it as an essential element of transitional justice policy-making”. Thus, justice processes present an opportunity to create new spaces for the participation of those who have been deprived of their rights as a result of systematic human rights abuses or historic exclusion. By adopting meaningful and inclusive measures of participation, transitional justice can contribute to dismantling systems of dominance and discrimination that traditionally exclude certain groups of victims, including women or ethno-sectarian minorities.

Morocco’s community reparations programme (2007-2011) is a good example of how to associate affected communities with designing a transitional justice programme. Established at the recommendation of the Equity and Reconciliation Commission, the programme has sought to disenclave eleven regions that suffered disproportionately from widespread human rights violations or were deliberately marginalised during Morocco’s ‘Years of Lead’. Instrumentally supported by the European Union, this programme established community-based structures in the form of local coordination bodies in each affected community to allow civil society and locals to directly participate in identifying priorities and designing reparation measures. By doing so, the programme introduced a new way of shaping and implementing justice measures in areas that have historically suffered from strong centralisation.

Creating new spaces for civil society participation  

In her piece, Ashraph mentions the establishment of the IIIM (International Impartial and Independent Mechanism) as a creative way to circumvent Russia’s veto on an ICC referral in the Security Council. However, the IIIM has also managed to associate the Syrian civil society to its efforts while preserving its impartiality. As such, it has become another relevant example of how to involve national stakeholders and survivors in justice efforts. 

Although Syrian civil society was not consulted ahead of the mechanism’s establishment, civil society groups took matters in their own hands and persuaded the IIIM to engage with them and to initiate the Lausanne platform. This process has led to the adoption of a joint protocol, which allows for regular, mutually beneficial two-way communication and collaboration approaches.  The Netherlands and Switzerland, who financially support both the IIIM and Syrian CSOs, have played an important role in supporting the Lausanne process.

Going beyond criminal accountability

The German government should learn from the Iraqi and Syrian quest for justice in its efforts to support transitional justice endeavours, namely that:

Beyond criminal accountability, foreign assistance should support justice measures seeking to address the real and immediate needs of affected populations politically, technically, and financially. These measures may include mechanisms to search for the disappeared, individual and collective reparation for survivors and affected communities, and policies for the protection of property of displaced persons.

Furthermore, international assistance should promote and support justice processes that directly associate affected communities, victims, and grassroots actors and allow them to participate meaningfully in defining priorities, as well as designing and implementing corresponding policies. The role the European Union played in supporting the inception of Morocco’s community reparations programme and that of the Netherlands and Switzerland in the IIIM’s Lausanne platform are strong examples of how the German government could support participatory and inclusive justice processes.

Finally, international assistance should not be limited to formal justice mechanisms. It should enable and equip local civil society actors and victims’ groups to actively and meaningfully participate in both formal and informal transitional justice efforts.  

Naher Osten & Nordafrika Transitional Justice Irak

Habib Nassar

Habib Nassar is the Director of Policy and Research at Impunity Watch.