Peace and the Question of Transitional Justice

Since the Mamasapano tragedy, groups far and wide from both the public and private sectors have called for truth and justice for those who perished – whether SAF, MILF or civilian. Media coverage and the Senate hearings have tried to get to the bottom of what actually happened on that fateful day. The truth, of course,has remained elusive. Public opinion, media pundits, social media, Palace officials, the AFP and PNP, and Senators alike have had their own modes of (and agendas for)determining the truth. And without some settled notion of the truth, there can be no justice. Insofar as justice is ‘yet to come,’ what then happens to the prospect of peace? Can there be peace without justice?

There have been calls for the MILF to return SAF weapons and surrender the troops who killed the commandos. No doubt, this is needed, but it suggests a somewhat limited approach to truth and an even narrower sense of justice. It betrays a preoccupation with exacting retribution, seeking its pound of flesh in the guise of demanding accountability from a single group.

Is there a better, more judicious, alternative? There is, it turns out, a kind of accountability and justice that considers historical context and the different narratives of state and non-state actors. Not limiting itself to criminal prosecution, it considers other, equally important concerns. Transitional justice is one such alternative.

The International Center for Transitional Justice (ICTJ) – a New York-based non-governmental organization – refers to transitional justice as a set of judicial and non-judicial measures implemented by different countries to redress the legacies of massive human rights violations. These measures include criminal prosecutions, truth commissions, reparations programs, and various kinds of institutional reform.

ICTJ explains that transitional justice is a way of addressing a history of injustice in the wake of violent conflicts and regimes of repression. Achieving accountability entails recognizing the rights of victims, promoting civic trust and strengthening democracy through the rule of law. Though transitional justice measures legal and moral obligations, there is wide latitude as to how these obligations can be satisfied.There is no one-size-fits-all formula for all contexts.

But what ultimately matters is the social practice of “truth-telling” in the interests of generating a kind of collective catharsis – where acknowledgements of grievances are openly made by all sides -- that in turn leads to long-term healing.

In a recent Feb 27 “Forum on Mamasapano and the Peace Process”held at Club Filipino, transitional justice was explained by former PCGG Commissioner and current ICTJ Director for Reparative Justice Ruben Carranza.

Discussing the peace process and notions of justice, Carranza explained, “There are different ways to end a conflict. One way is to destroy your enemy and the other way is through transitional justice. One of its model countries is South Africa. During the talks between the late Nelson Mandela and the apartheid government, they agreed to amend the South African constitution. They provided a call for reconciliation and unity to acknowledge what happened to the community that had to live during apartheid.”

Carranza rightfully favors the transitional justice option, believing the price of victory through armed conflict too high. The Philippines is already ravaged by natural disasters year in and year out; it cannot afford the human casualties, social displacements, infrastructure and livelihood destruction that result from all-out war.

“The very nature of the Mindanao peace process is formality.” Carranza said. “We have observed that many of the developments were based on talks between the Philippine government and the MILF that were facilitated by the Malaysian government. What we do not see is the political bargaining or compromises parallel or outside of the formal talks. There is always informal bargaining that goes on. And this is where proposals for truth commissions, reparations for human rights violations, and institutional reforms take place. If we simply look at the peace process as the submission of armed non-state actors to the legal system of the state, then what is the status of such non-state actors? Law does not control this situation.”

“Justice is not necessarily about law. This means that peace talks and the need to address transitional justice considerations should be treated as a separate legal process.”

The Mamasapano tragedy now has as many narratives as sources. Carranza emphasizes the need to consider these narratives in the context of their historical perspectives. “Justice should be seen as a form of acknowledgement. And there is a need to acknowledge the narrative of the other. This can be done by establishing a Truth Commission and providing reparations for victims of human rights violations. It is a way to recognize what happened to others and a means to convey a message that state and non-state actors can perhaps begin to trust each other. However, one cannot expect that the provision of a Truth Commission alone will automatically lead to reconciliation.”

Addressing accountability issues, Carranza expressed concern that, “Transitional justice is often conflated with criminal justice. But it is not only concerned with individual accountability but more so with institutional accountability. What institution should you change or reform? An example of this is the impending integration of the MILF-BIAF (the armed forces of MILF) with the government armed forces. How do you address the requirement that soldiers should be at least 2nd year college graduates when many of the MILF combatants do not have such qualifications?”

His last point was access to justice. “Do people have access to justice? Do they have access to courts and access to rights? Right now, I am here in the Philippines because of the implementation of the Reparations Law for the victims of human rights violations during Martial Law. There are currently several claimants from ARMM who have not been able to file for their claims simply because they do not have death certificates. In this context, there is a need to look at stories we never knew about, where we begin, and where injustice might be.”

But it should be noted that the BBL actually already confronts several of the issues raised above. The early financial support for the establishment of Bangsamoro governance and the reapportionment of incomes from natural resources can be viewed as a kind of reparations, albeit without demands for state confessions. The restructuring of Bangsamoro governance and MILF participation in the AFP and PNP in themselves amount to institutional reform.

But some issues of accountability—financial, civil & criminal—still need to be worked out. Rather than seeing the coming legislative process as a confrontation -- an all-or-nothing, win/lose battle or an opportunity to water down the work of the Peace Commission -- all sides would do well to patiently seek transitional justice in the hope that it will produce a stable and lasting peace.

Carranza recommends that we find ways to work together to raise awareness of the issues of transitional justice. He urges that we not only address present concerns but consider the long trajectory of the Mindanao peace process. He also exhorts journalists to write stories that not only focus on the current situation, but consider historical contexts and look for intersecting narratives in order to understand different sides of a story.One can only agree with these recommendations.