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From Transitional Justice to Dealing with the Past: The Role of Norms in International Peace Mediation

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Introduction

“(J)ustice is an important part of building and sustaining peace. A culture of impunity and a legacy of past crimes that go unaddressed can only erode the peace.”
Secretary General Ban Ki Moon during his visit to Sudan in September 2007

Many governments, civil society and peacebuilding actors forward that peace after years of violent conflict cannot be sustained without addressing the grievances and calls for justice by victims, their families and societies as a whole. Transitional justice, defined as “the full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and receive reconciliation,” has been argued as essential in the full recovery and rebuilding of a divided society.

Recognizing the value of incorporating transitional justice principles and mechanisms as early as possible, organizations such as the United Nations (UN) and the European Union (EU) see mediation processes as an important opportunity to begin a discussion on transitional justice. The UN has published guidelines for their mandated mediators to work within the bounds of international law4 and has issued instructions to uphold the organization’s position against amnesties for the most serious international crimes. In its “Concept Paper on Strengthening Mediation and Dialogue Capacities,” the EU has stated its resolve to promote transitional justice in its own mediation and mediation support missions. States engaged in international peace mediation, such as Switzerland and Norway, have also advocated for transitional justice in the peace processes they support and have developed respective approaches. Based on this trend, this normative framework progressively defines the parameters of peace negotiations.

This growing international appreciation for transitional justice, however, has at times been met with caution from mediation practitioners. The counterargument posits that the desire to promote justice clashes with the mediators’ primary mandate, which is to secure the conflict parties’ engagement in the peace process and to support them in negotiating the immediate cessation of hostilities. In many cases, actors at the negotiating table are suspected of international crimes and thus discussions about punitive measures may discourage them from engaging in negotiations and stopping the war if doing so may result in criminal investigations and prosecutions.

This points to dilemmas reflecting an earlier debate on peace versus justice. This debate was premised on the view that peace and justice are conflicting goals entailing practical difficulties in promoting transitional justice in international peace mediation. However, transitional justice scholars and practitioners have moved away from this dichotomy and point to the need for a broader conception of transitional justice to identify elements that can especially complement specific aspects of mediation processes. This broader conception of transitional justice is encapsulated in the concept of Dealing with the Past used by the Swiss Federal Department of Foreign Affairs (FDFA) and swisspeace that is based on the 1997 set of Principles Against Impunity drafted by UN Special Rapporteur Louis Joinet.9 It proposes that transitional justice measures should have the long-term objective to establish a culture of accountability, rule of law and reconciliation. Coupled with this broader conception, a closer examination of mediation processes sheds light on opportunities and challenges, therefore minimizing the dichotomization between peace and justice.