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The panel was organized by the Transitional Justice and Rule of Law Interest Group. The moderators were Zinaida Miller (Seton Hall University School of Diplomacy) and Lisa Laplante (New England School of Law). The panelists were Naomi Roht Arriaza (UC Hasting Law School), Chris Mahony (World Bank Group), Phuong Ngoc Pham (Harvard Humanitarian Initiative), and Jamie Rowen (University of Massachusetts Amherst Department of Political Science).
Professor Arriaza began the panel by exploring why there was such a high bar placed on the subject of non-repetition. She noted measures of non-repetition are about not repeating violations of human rights law but there exist better ways of ensuring non-repetition. One way is by focusing on the root causes of conflict which could lead to an analysis of domestic policies relating to taxes, marginalization of ethnic groups, and other lesser considered topics. Professor Arriaza also said it was important to consider the time frame in the analysis of non-repetition. She noted the importance in differentiating for five years, ten years, a generation, etc.
The second question explored how panelists have seen non-repetition be a helpful or non-helpful aspect in transitional mechanisms. Chris Mahony discussed his work on the joint United Nations-World Bank study on conflict prevention and transitional justice. The study explored whether violence recurs or not within a three or five-year period after a conflict. Using the transitional justice database, the study found that where peace occurs for five years, it persists. Mr. Mahony noted this as the reason the research did not need to extend to ten years after a conflict. Other findings of the research included an understanding that where there was a secessionist conflict, violence was more likely to occur than when there was a challenge to the ruling party. The study also reviewed the constitution making process and found that where states drafted a new constitution, conflict was sixty percent less likely to occur.
Phuong Ngoc Pham responded to the question by sharing that one approach in evaluating non-repetition’s effectiveness in transitional justice is to assess non-repetition as part of the peacebuilding process. Professor Pham researched how reparations and other mechanisms contribute to post-conflict social cohesion. Her work focused on the Democratic Republic of the Congo and Colombia. In the DRC, she measured perceptions of security and justice by conducting quarterly interviews and measuring indicators over time. An interesting trend she found was that perceptions of restored security and justice were shaped by the interviewee’s trust in security actors.
In Colombia, Professor Pham undertook a new analysis and found that whether the interviewee received reparations from the government or not did not factor into the results. What mattered was how people perceived the process surrounding reparations. Professor Pham also found restoring hope among the population influenced their perception that the government was protecting their human rights. Overall, Professor Pham’s research showed in order for reparations to achieve social cohesion, the populations must believe the state cares about them.
Jamie Rowen shared she became interested in the field of transitional justice about twenty years ago and focused on truth commissions. After being involved with truth commissions, Professor Rowen began asking why this specific mechanism was used. The main issue she found was that the same mechanisms for different types of violence were being used and were not also effective. For example, a truth commission addressing South African apartheid would be ill-fitted given the nature of the apartheid violence was social and political.
Lisa Laplante continued the conversation by addressing that most of what is discussed in regards to the fourth pillar of transitional justice is non-repetition. This often leads to the vetting of security forces, police departments, and the judiciary. However, this is mostly superficial and incomplete with there often being a simple name change and suppression of the worst two or three units in the security forces. So, instead of changes that lead to non-repetition, what happens is transformation. This is an example of how the structural changes put into peace accords do not get carried out fully. Additionally, some peace accords address land reform, tax reform, and other structural bases for conflict, but are not fulfilled and still debated twenty years later.
The third question explored whether it makes sense to have non-repetition be an aspect of transitional justice. Professor Pham stated the goal of non-repetition makes sense but it has to be built into a broader process of peace. She noted that process is key. Professor Pham argued that there should be better monitoring and evaluation of the processes. With this, she highlighted that definitions are important because definitions impact how things are measured. She shared that in epidemiology the better something is defined, the deeper one can go in exploring the issue. Professor Rowen also responded by reminding the audience that transitional justice is part of a history that many international lawyers adhere to because it promises social change. Within this tradition is a focus on the Rule of Law and human rights.
An audience member contributed that there seems to be a paradox in the field given here is a plea for accountability alongside a plea for transitional justice. Advocates want the state to be purged of bad actors and to self-flagellate but also to be a protector that rapidly transforms itself to be seen as a just society. Summarizing her experience, she stated that coming out of the human rights movement, it has been more successful in instigating accountability as opposed to creating a climate of non-repetition.
Tamara V. Lewis is a BASIL and International Law Fellow.