Something must happen after a civil war; the fall of dictatorship; the end of genocide. People who fought and killed one another must learn to live together again. Along with the buildings and the homes, civil society must be rebuilt.
Millions of people alive today have lived through this sort of reckoning. In Rwanda at the end of the genocide, townspeople gathered—often sitting outside on the grass—for gacaca courts, where perpetrators of the ethnic cleansing were confronted with their actions, and survivors shared their stories. In Peru, after two decades of brutal internal conflict, a national Truth and Reconciliation Commission led to reparations, truth commissions, and the prosecution of President Alberto Fujimori. In Argentina after rule by a military dictatorship and the Dirty War, the National Commission on the Disappearance of Persons sought to discover the truth behind the fate of the desaparecidos, the tens thousands of people disappeared by the U.S.-supported far right junta.
Anna Myriam Roccatello, an Italian human rights lawyer, has dedicated her life to this sort of work. In Kosovo, she worked with a UN mission to strengthen rule of law as the country recovered from civil war and ethnic cleansing. In Afghanistan, she assisted in efforts to strengthen and build up the country’s judicial system. The term many use for this kind work is transitional justice—a rather bureaucratic term for what is, in many ways, the most strenuous and immense project we as people can attempt: rebuilding entire societies. Currently based out of Brooklyn, New York, Roccatello has largely focused her work on countries outside of the United States. But, this year, after the historic uprisings in defense of Black lives around the country, and a bitter and divisive election, Roccatello now feels that it’s time to bring the resources of transitional justice to the U.S. In recent years, the U.S. has seen escalating violence from white supremacist vigilantes as well as mounting human rights abuses from the government, including the detention of children and separation of families. In other countries, we’d be quick to condemn the sort of “sectarian violence” now happening regularly in the U.S. Could this country benefit from the kind of efforts attempted elsewhere in the wake of wide-scale human rights abuses?
“Whatever the mechanism is—if it’s truth seeking; or truth recounting; or intergenerational dialogue; or memorialization; or a strong, firm, governmental program of reparation, together with reforms in the criminal justice system, and a few very targeted emblematic criminal prosecutions. All of these are ways of embarking into a revision—a complete revision of the question, ‘Why are we here?’” says Roccatello. “What do we want from the country we live in?”
Recognizing the scale of the problem
The United States is fortunate not to have experienced a recent civil war, but this country does have the sort of the massive division, broad-scale injustice, and weakened institutions that transitional justice projects seek to address in post-conflict areas. A minority-controlled government has left the U.S. completely incapable of responding to the COVID-19 pandemic. While the House of Representatives has passed relief bills, Trump and the Republican-controlled Senate have stalled attempts to send economic relief to millions of struggling people. And 400 years of unresolved oppression of Black people continues to result in state violence and mass incarceration.
In the wake of the election, tens of millions of Americans, influenced by President Donald Trump’s fabricated claims of voter fraud, will likely not accept the legitimacy of the incoming Biden administration. Now is a vital time to ask what solutions on the scale of the country’s problems must look like.
Especially after the uprisings in response to the police murders of George Floyd and Breonna Taylor, transitional justice experts around the country—and around the world—have begun to push for the U.S. to engage in a mass program of reckoning, on the same scale of South Africa’s Truth and Reconciliation Commission. In the aftermath of the election, some advocates say that a broad-scale campaign of truth telling could help people in this country find the sort of basic common ground and understanding necessary for a civil society to function.
Increasingly, scholars and practitioners who have focused their transitional justice work on other countries are turning their efforts toward the United States. Since 2013, Roccatello has worked with the International Center for Transitional Justice, a global organization with missions in over 40 countries around the world, like Iraq, Nepal, Armenia, and Colombia. Currently serving as the organization’s deputy executive director, Roccatello explains that, in the past, the ICTJ has been cautious about taking the U.S. up as a place to push for transitional justice. Roccatello says that caution is born of humility: The U.S. has strong existing civil rights advocacy, especially in the Black community. However, after George Floyd’s murder, Roccatello says she and her colleagues began discussing whether they had a responsibility to bring the resources of their organization to bear on the U.S. “We felt that to not take action would bring us close to being complicit,” she says. The result of those conversations is a report ICTJ will publish later this year—its first report dedicated to the U.S.
According to Yuvraj Joshi, a doctoral candidate at Yale Law School and scholar of transitional justice, the U.S. has long been an enthusiastic advocate of truth commissions and other sorts of transitional justice practices abroad. However, he says the U.S. government has not sufficiently considered this country’s own need for such an effort.
“The U.S. government has supported transitional justice in other countries while ignoring it at home. There is a belief that transitional justice does not belong ‘here’ because it is meant for ‘emerging’ democracies, and the United States is already an ‘established’ democracy. This position overestimates American democracy and underestimates the transition process,” Joshi says. “Claims that emphasize the United States’ status as an “established” democracy ignore the denial of basic political rights and representation during slavery, up through Jim Crow, and into the present day.”
There is no one model of transitional justice
What would transitional justice look like in the U.S.? Zinaida Miller, an assistant professor of Diplomacy and International Relation at Seton Hall University, has studied transitional justice processes in countries around the world. And she stresses that there is no “one” model—nor should there be. For transitional justice to truly be restorative, it has to start from the grassroots: From people asking what needs to be done.
“For any country, there’s a danger of oversimplifying or misportraying a ‘sameness’ of places that have encountered violence or various kinds of oppression and subordination,” Miller says. “We have to think about it in highly contextualized ways.”
There is no official transitional justice program. Part of the reason for that is because of differing contexts. But there’s another reason: Experts are frank that transitional justice efforts are not always successful. In fact, they often fail. In South Africa, for instance, economic inequality between Black South Africans and white South Africans remains rampant, and many of the people and families who were most invested in the totalitarian apartheid regime have maintained their wealth. The central question facing the U.S.—of how we, as people, can move forward from hundreds of years of white supremacy and other forms of violent inequality—is one people around the world are struggling to answer. And it’s not a question transitional justice practitioners pretend they have a ready solution for.
Instead, transitional justice—as a set of historical practices, and as a field of scholarship and advocacy—offers a toolkit, and a set of questions.
For instance, in South Africa, truth commissions offered Black South Africans the opportunity to share their stories, the experiences of their families, and to recount the constancy of their oppression under apartheid. White South Africans also participated, listening and sharing their own perspectives. These commissions were televised, and played across the country. The idea was to begin to establish what apartheid had been, and how it harmed people. Even though South Africans would continue to disagree about how the work of politics should be done in their country, there was hope truth commissions could help build a common ground and mutual understanding about the ways apartheid affected people.
In the abstract, Miller thinks this sort of truth telling could prove vital for Americans. As any person in this country can attest, our disagreements go deeper than political values, and bleed into the area of basic facts: In an age of fake news, we don’t have a firm agreement on what happened yesterday, much less on the nature of something like racial oppression in this country. However, she worries that, in the era of mass social media and the mass “silo-izaiton” it causes, it could prove impossible for everyone to actually pay attention to a truth commission, and come to mutual understanding. How to solve this problem is one of the questions people in this country will have to ask if we are to engage in any sort of truth commission.
Beyond truth telling, there also must be efforts to right wrongs. Often, in post-conflict situations, tribunals and courts focus on forms of restorative justice, rather than a simply a punitive criminal justice model. In Rwanda, this paradigm required a difficult compromise: It would simply have been impossible to prosecute and imprison the hundreds of thousands of people who participated in the genocide. Instead, the country focused on more targeted prosecutions alongside attempts, at the town and community level, to foster a sort of healing through dialogue, and, at times, personal reparations.
This component—reparations—is its own program of transitional justice. In Peru, the government experimented with multiple forms of reparations for people who had suffered serious human rights abuses, including financial reparations for victims (and families of victims) of rape, disappearance, and murder. Alongside these payments, there was also an effort to make symbolic reparations—including closing down a notorious prison—and other kinds of community-level reparations like subsidizing and providing health care and education. In the U.S., the push for reparations for enslaved people and victims of Jim Crow Era oppression is over 150 years old, and many experts in transitional justice believe such efforts could be pivotal to national healing.
Perhaps more than any particular program, transitional justice provides a mindset: A recognition that a country needs to go beyond reform, and fundamentally evolve and change. Roccatello says she understands that people in the U.S. are resistant to amending or changing the constitution, or fundamentally restructuring the federal government. But she says that, just as you can’t expect the government recovering from a dictatorship to look the same after a transition, you can’t expect the U.S. to look the same after the sort of transition justice program it needs. Change needs to be on the same massive scale as the problems that face us.
“I think for me, the most important thing to apply to the U.S. context is the sort of urgency for broad-scale universal change instead of partial reforms,” she says. “In a way that there’s broad representation, and that there’s no one left behind.”