2.1. The question of efficiency – money matters

Greater use of technological solutions in the context of transitional justice could increase the cost-efficiency of the institutions in question. Money is, indeed, a significant factor that may determine institutional responses to systematic or widespread violence. The International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), for instance, have spent billions of US dollars since their creation in 1993 and 1994, respectively. These considerable financial resources are one of the reasons why these tribunals have been severely criticized, and why no other ad hoc international criminal tribunal – but rather hybrid or internationalized tribunals like the Special Court for Sierra Leone – has been created since then to deal with a specific situation. Since international criminal trials are indeed relatively costly, and since they do not necessarily contribute to improving the situation of victims – at least not in any directly tangible form – it has even been suggested that this money should rather be invested into reconstruction and development projects.Footnote ¹³

More specifically, in addition to the inherent complexity of international trials,Footnote ¹⁴ the location of the ICTY in The Hague, Netherlands, and of the ICTR in Arusha, Tanzania, increased the financial onus. While it is unlikely that such tribunals will again be established in the near future, the situation is similar in the case of the International Criminal Court (ICC), which is located in The Hague, whereas almost all the situations before the ICC originate from African countries. This means that not only the staff of the tribunals, but also the accused, witnesses and experts must travel to a place that is not easily accessible from the respective conflict region. Of course, establishing a tribunal and conducting the proceedings primarily in a presumably neutral location, often at a significant distance from the territory where the alleged crimes were committed, is often desirable in politically unstable situations; the drawback is that the proceedings before such tribunals are, in comparison to domestic trials, very long and costly. They are, therefore, in particular need of optimization.

Obtaining witness and expert statements via video-link, as is increasingly the case in the context of ordinary civil and criminal proceedings in the Western world,Footnote ¹⁵ reduces the costs related to travel and could contribute to expediting the usually lengthy trials before international tribunals. Improved information and communication technologies and their careful integration into the trial proceedings can also be expected to help reduce the risk that the rights of the accused, for instance because of the inability of the defence to ‘directly’ cross-examine witnesses, are violated, or perceived as being violated. So far, the international criminal tribunals have, however, made only very restrictive use of video-link for testimonies.Footnote ¹⁶ Regarding the ICTY, although its Rules of Procedure and Evidence were amended in 2007 to permit proceedings to be ‘conducted by way of video-conference link’,Footnote ¹⁷ the judges have identified several criteria that must be fulfilled before testimony via video-link can be allowed, including whether the witness is unable, or has good reasons to be unwilling, to come to the tribunal.Footnote ¹⁸

In this sense, the use of information and communication technologies can not only contribute to rendering proceedings more efficient by decreasing costs, but also increase the overall effectiveness of proceedings, in particular by facilitating the protection of victims and witnesses. Examples include the use of testimony via closed circuit television, such as in the case of child witnesses and victims of sexual violence. Before the ICC, for instance, a chamber can, under certain circumstances, order that:

Beyond questions of financial efficiency, the increased use of information and communication technologies can hence help fine-tune the delicate balance between the rights of the accused and the protection of victims and witnesses.Footnote ²⁰

2.2. Increasing access, outreach, participation

It is worth recalling that the frequent establishment and use of transitional justice mechanisms in the context of political transformations or post-conflict situations is a fairly new phenomenon. Although every situation requires specific and different responses, sharing information among similar transitional justice processes, and across different contexts, is certainly useful. No mechanism must start from scratch but can and should build on previous experiences. In other words, international and internationalized criminal tribunals as well as TRCs, despite different mandates, can and ought to learn from each other. This is already the case, at least to some extent, both regarding the institutional framework and the working practices that are passed on by staff members and experts. By way of example, the ICC has clearly learned from the experiences of the ICTY and the ICTR; the Sierra Leonean TRC has built on the experience of the South African TRC; and international criminal justice and transitional justice practitioners have ‘hopped’Footnote ²¹ from one tribunal or commission to the next one, maintaining and transmitting ‘best practices’ and ‘institutional knowledge’. Moreover, both judicial and non-judicial mechanisms can be expected to have, increasingly, recourse to electronic records. In addition to electronic file storing and sharing, which already facilitates access to relevant material, new technologies have further potential to facilitate the exchange of practices and knowledge and thus to strengthen transitional justice mechanisms over time. Regarding the ICTY and ICTR, for instance, the issue of preserving and managing the tribunals’ archives, such as the audio and video recordings of thousands of trial days, has been explicitly included in the essential functions to be continued by the follow-up institution, the United Nations Mechanism for International Criminal Tribunals.Footnote ²²

Information and communication technologies represent additional opportunities in the context of transitional justice with respect to outreach and to access to and participation in the respective proceedings. Many transitional justice institutions, in particular the ad hoc international criminal tribunals, have been severely criticized for not being sensitive to local needs and concerns and for preventing the communities most immediately concerned from assuming ownership over the respective proceedings. As Frédéric Mégret has argued:

Along with such structural challenges, the institutions themselves have arguably done little, or not enough, to explain their mandate and objectives to a broader audience. The local population, especially from remote areas, has often not been able to participate in the proceedings and has not always had an accurate idea of the respective institution's mandate and work. Although the tribunals did employ greater efforts over time to develop and implement more effective outreach programs, few people within the immediately concerned population considered themselves well informed, even years after the establishment of the institutions.Footnote ²⁴ This contributed to creating wrong or exaggerated expectations, in particular among local but also among global audiences and a diminished capacity of these institutions to have a positive impact on the societies in transition.Footnote ²⁵

New technologies have the potential to increase access to transitional justice institutions and to facilitate communication between the institutions and their constituencies. It should be borne in mind that even if an armed conflict has ended and a society is already ‘in transition’, security is often still a major concern. Along with destroyed or damaged infrastructure, such as road and rail networks, this factor can diminish the capacity of transitional justice institutions to effectively reach out to local communities. While relatively costly and not easy to install in remote villages, information and communication technologies could, at least in some situations, improve the situation. Audiovisual – ideally live – representation of proceedings held in other areas may be particularly beneficial for communities with low literacy rates. In such communities, radio broadcasting already plays an important role (which was, after all, illustrated by the infamous hate-speech and genocide-inciting Radio Mille Collines in RwandaFootnote ²⁶ ). The audiovisual can enrich this otherwise more limited, monosensory, experience. By way of example, the ICC organized live screenings of court proceedings in the case against Dominic Ongwen in Northern Uganda, including in villages where some of the crimes for which Ongwen is allegedly responsible were committed, which provoked diverse reactions among community members.Footnote ²⁷

Moreover, although internet access rates are still very low in many countries, with four billion people from developing countries remaining offline in 2015 and less than five per cent of the population using the internet in dozens of countries,Footnote ²⁸ other means of mass communication have become more readily available. The use of mobile phones, for instance, has increased dramatically over the past decade, in particular in African countries, where subscriptions per 100 inhabitants have risen from around ten to more than 70.Footnote ²⁹ Although the purpose of this article is not to prescribe specific usages of such technology to further goals associated with transitional justice, it is conceivable that outreach programs could include the sending of notifications via text messagesFootnote ³⁰ and – since mobile phones drive the rapidly growing use of social media in many African countriesFootnote ³¹ – also connect more directly and dialogically with community members via social media.

In this sense, information and communication technologies could be used not only to increase the flow of information in a unidirectional manner from the institution to local communities but to facilitate dialogical communication. Among the goals of most state-based transitional justice institutions is to deliver justice to those most directly concerned, in other words to the victims of crimes committed during an armed conflict or by an oppressive regime. In the preamble of the ICC Statute, for instance, the signing states parties declare that ‘during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity’ and that ‘the most serious crimes of concern to the international community as a whole must not go unpunished’.Footnote ³² Moreover, as is stated in Article 53, the Prosecutor must take into account the ‘interests of victims’ when deciding on the initiation of an investigation.Footnote ³³ While delivering justice to the victims is certainly not the only goal of an international trial, it still seems striking that institutions like the ICTY, the ICTR and the ICC have done little to hear the voices of those most immediately concerned by the crimes in question. And while the ICC clearly aims to pay more attention to victims of genocide, crimes against humanity and war crimes, among others by allowing them to participate in the proceedings – not only as witnesses but as victims – and by providing for reparations through a trust fund, the institution itself can hardly be described as being shaped or informed by the grassroots level.

Transitional justice institutions, however, can be driven by victims’ associations, and they should be informed by local knowledge.Footnote ³⁴ This can include the original use, modification and creation of technology, and hence radically different forms of participation and local ownership. Indeed, the increased use of the internet, mobile phones and social media in many countries affected by violent conflict opens up a range of possibilities related to transitional justice endeavours: individual and collective narratives may be shared and constructed – and truths revealed – very differently on social media than in formal courtroom or commission settings; violence may be discussed and remembered by connecting distant communities with each other as well as with various institutions.

A related tendency – and arguably requirement – to turn to the local already manifests itself quite strongly in the context of TRCs. When compared to international and internationalized criminal tribunals, the mandate of TRCs is more closely related to different narratives and perceptions about a violent past as well as to individual and collective feelings about the ‘other’. As a result, TRCs and similar endeavours must arguably listen more carefully to gather what kind of truth the communities concerned want to reveal, and what kind of reconciliation these communities seek. Top-down approaches that do not sufficiently consider local needs and desires, and that fail to secure popular support, will hardly be successful, as exemplified by the Haitian Commission Nationale de Vérité et de Justice.Footnote ³⁵ Moreover, such approaches, focused on institutional design, often fail to consider the sometimes very practical obstacles to participation in transitional justice mechanisms, such as the economic situation of those who are invited to participate.Footnote ³⁶ Similarly, when it comes to technology, it would seem counterproductive if programmers in the global North were to design and direct, for instance, the use of ‘transitional justice apps’ for mobile phones; as mentioned above, different communities already use, modify and create technologies in different ways, which means that elements of cyberjustice can take almost infinite forms.

Interestingly, a variety of institutions established by non-state actors, such as so-called peoples’ tribunals, have attempted to embrace a more local, bottom-up approach by giving a voice to those that are not heard in official fora. When compared to more formal, state-based institutions, such processes may give more space to individual and collective narratives, in particular of victims.Footnote ³⁷ More fundamentally, they may also be an avenue to provide forms of justice and establish truths that are complementary or alternative to those offered (or refused) by official institutions. Indeed, the contribution of community-based institutions arguably goes beyond filling in jurisdictional gaps of formal institutions. Rather, they are sites where a variety of actors articulate, develop and re-negotiate transnational legal norms. It should be noted that a number of official institutions operating in conflict or post-conflict contexts increasingly attempt to take into consideration individual narratives and lived experiences. For instance, and as mentioned above, even the inevitably perpetrator-focused and retributive justice-generating ICC aims to pay appropriate attention to the victims of crimes within its jurisdiction. A general trend in the form of a turn to the local and to the victims and communities most immediately affected is hence discernible. And while local, bottom-up approaches should not be essentialized or romanticized,Footnote ³⁸ enabling local communities to provide meaningful input to the transitional justice processes in question and to craft their own responses is salient and can be expected to contribute to enhancing local ownership over such processes. The use of information and communication technologies can certainly facilitate this endeavour, but there are risks associated with overly technology-driven approaches that must be carefully assessed.

3.1. Overly technical responses: Entrenching the toolbox approach

The common emphasis on technical institutional responses in the field of transitional justice has tended to standardize mechanisms and processes, thus overlooking particular needs and obstructing the development of original responses. As Clark and Palmer write, ‘[t]he toolkit approach to transitional justice begins with institutions and appears to work backwards through questions of needs and objectives’.Footnote ⁴⁷ The focus on possible institutional responses is illustrated by a common impulse to ask how we can best make use of an institution that we have already created: ‘We have an International Criminal Court. What can we do with it?’Footnote ⁴⁸ It becomes evident that the choice of means constrains the possible ends (although the reverse is also true, with the ends constraining the choice of means).Footnote ⁴⁹ Considering the possible use of particular information and communication technologies in the context of transitional justice runs the risk of constraining the choice of possible ends.Footnote ⁵⁰ In other words, it is not the availability of a certain transitional justice mechanism or a certain technology that should necessarily drive its use; the ICC, for instance, may be an appropriate institution in a variety of situations but the fact that it may have jurisdictions over certain crimes committed does not automatically make it the best forum to investigate and prosecute such crimes. Similarly, outreach programs that are facilitated by social media and the availability of videoconferencing and broadcasting technologies do not necessarily make proceedings before an international tribunal or a TRC better and more effective.

This concern is also related to the fact that in the transitional justice literature, advocacy and analysis are not always easily distinguishable. Slogans like ‘no peace without justice’, promoted by prominent human rights organizations since the 1990s, do not contribute to pursuing an unbiased analysis of particular situations and of the kind of peace and the kind of justice for which a particular society in transition longs. As mentioned above, international and internationalized tribunals are often asked to do too much, although they can clearly not resolve large-scale crises and bring about peace and reconciliation on their own. Furthermore, with the domestic political and legal order being deficient or contested, the call for particular institutional responses, such as an involvement of the ICC, often comes from the so-called international community and not from the communities immediately concerned. Some transitional justice institutions have, therefore, been criticized as a new form of imperialism. This problem is particularly visible in the case of the ICC. Here, one of the main points of criticism concerns the fact that almost all the situations that have, so far, been brought before the ICC stem from African countries.Footnote ⁵¹ To be clear, establishing an international or internationalized criminal tribunal to try those allegedly most responsible for the crimes committed, or prosecuting a handful of political and military leaders before the ICC, may have a positive impact, both in the short-term and in the long run. It is also true that a multilateral treaty founded the ICC, which means that its jurisdiction is largely dependent on the consent of the respective state.Footnote ⁵² Despite their initial support for the ICC – its Statute has been ratified by roughly two-thirds of all states, including the majority of African states – many African governments now criticize the ICC, notably for the fact that only crimes committed on African soil have been investigated and prosecuted. This has fuelled an intense debate over the usefulness and appropriateness of involving the ICC in such situations. In this debate, internationalized criminal trials, and criminal trials more generally, are often condemned as a ‘Western’ invention, or even a ‘Western’ conspiracy that lacks concern for local needs and does not create local ownership.Footnote ⁵³ Dealing with the perpetration of past crimes in such ways may thus appear as a top-down or outsiders’ construction of justice processes, quite contrary to bottom-up, community-based mechanisms.

If it is already problematic to employ transitional justice mechanisms rooted in the Western legal tradition, these challenges become even more evident when it comes to the use of particular tools in the form of ‘modern’ information and communication technologies that risk entrenching the outsiders’ toolbox approach. Just like the availability of certain institutions, the availability of certain technologies should, in other words, not determine their use. Rather, the danger that such technologies further goals that are associated with only certain forms of justice, such as transparency, expediency and cost-efficiency, must be carefully assessed. Transparency and expediency may, in fact, be opposed to other important goals related to justice that may be achieved through the relating and possibly very time-consuming collection of individual and collective narratives. This concern is mirrored by the fact that none of the objectives associated with the main transitional justice institutions are universally accepted and cherished goods. ‘Truth’, for instance, is of relative importance and may mean different things in different places over time, and the temporality of truth and memories is not necessarily linear or perfectly rational. Testifying before a TRC, whether in South Africa concerning political crimes committed during the Apartheid regime or in Canada regarding experiences of abuse in the Indian residential schools, may have a therapeutic effect for victims and encourage the feeling that the crimes of the past will not be forgotten or repeated. At the same time, such ‘truth-telling’ is not simply about ‘facts’. As Felicity Horne writes:

Testifying may also re-traumatize victims, who will, moreover, not gain any particular or easily tangible benefits from the proceedings. By way of example, a nationally representative survey of the South African population, carried out several years after the TRC process had begun, revealed a direct correlation between participation at TRC hearings and feelings of increased distress and anger and decreased forgiveness.Footnote ⁵⁵ Revealing the truth may hence be a first step towards reconciliation, but reconciliation may also become more difficult precisely because of a truth-claiming process compiling countless narratives and counter-narratives. The premise that enhanced information and communication, greatly facilitated by modern technology, will more or less automatically lead to greater justice must hence be taken with at least a grain of salt. We might even have to conclude that the degree of information and communication is not directly proportional to the degree of justice achieved.

3.2. Changing communication – changing cultures

It appears obvious to caution that new tools can and should not be applied without due concern for and understanding of the specific context, and yet this caveat has not been given due attention. Socio-historical aspects are particularly important in the field of transitional justice, where symbols and rituals play a central role. This, as it should be emphasized, is true in every context, whether in presumably modern, Western societies or elsewhere. Since it is, for instance, virtually impossible to conceive adequate material forms of reparation or compensation to victims in the immediate aftermath of mass violence, the symbolic value of trials, hearings of TRCs, public apologies and similar mechanisms increases in importance.Footnote ⁵⁶

The fact that modern information and communication technologies could hardly play a significant role in the context of certain processes is illustrated by proceedings like the gacaca courts in Rwanda. These courts, a traditional form of resolving local disputes, were remodelled after the genocide to try low-level perpetrators within their community. One of the ideas behind using the gacaca courts system was to allow direct confrontation between perpetrators and victims and, at the same time, to promote reconciliation and empowerment through increased popular involvement.Footnote ⁵⁷ In fact, most truth-telling and reconciliation-building endeavours are built on proximity. As Catherine M. Cole has noted with reference to the South African TRC: ‘The TRC staged and remade the past through a complex dynamic of watching, seeing, testifying and bearing witness . . . this was a commission of words and voices, speaking and listening, interacting face to face.’Footnote ⁵⁸

While it would be important not to exoticize such mechanisms and not to entrench an unhelpful polarization between Western and non-Western justice discourses, it still seems that a technocratic toolkit approach that imposes – or is perceived as imposing – certain mechanisms and methods can do more harm than good. Increased technologization of the proceedings, which may appear valuable and cost-efficient from an institutional design perspective, may contribute to alienating the primary constituency of the transitional justice mechanism in question. A TRC, for instance, will have difficulty establishing its credibility in a region without having held local hearings and without at least some of the commissioners being physically present. In many instances, it is the immediate and very personal involvement of victims, perpetrators and authoritative figures, such as judges, religious leaders, or village elders, that lays the groundwork for reconciliation and will eventually allow the individuals and communities concerned to ‘move on’. At the same time, technology can contribute to bridging otherwise distant communities and can enable forms of participation and local ownership that would otherwise not be possible.

In addition to changing obvious aspects of communication, technology also alters the meanings of communication and influences its outcomes. As pointed out above, every act of communicating a past event involves constructing and reconstructing this event, which means that the ways in which this reconstruction occurs – how it is sent and received – play a significant role. Formal court proceedings have, of course, already been altered by technology, with international trials, especially, having changed in rhythm, tempo and accent due to the introduction of so-called simultaneous translation.Footnote ⁵⁹ To give another example, silence plays a particular role in conversations in certain Aboriginal cultures, which also have different preferences regarding direct eye contact.Footnote ⁶⁰ Such fairly subtle aspects must be taken into account when considering the use of information and communication technologies in the context of transitional justice. Otherwise, such technologies will only contribute to privileging certain ways of communication and to further entrenching the hegemony of vision in the field of transitional justice – and of Western modernity's notion of law more generallyFootnote ⁶¹ – thus preventing the creation of richer and innovative ways of expressing and symbolizing justice.

An important caveat to these caveats should be made here. It is certainly not suggested that cultures and traditions cannot – and should not – change. Legal traditions, and cultures more generally, have always influenced each other;Footnote ⁶² change is often inevitable and may even be healthy and desirable. However, certain changes may be too abrupt and hence be harmful,Footnote ⁶³ and certain results may be contrary to the specific objectives pursued. It would, for instance, be particularly ironic to use information and communication technologies with the objective of increasing access to and participation in transitional justice mechanisms but to contribute, through these technologies, to alienating and, in the end, re-victimizing already vulnerable individuals and groups.

Generally speaking, it seems obvious that integrating information and communication technologies to facilitate the establishment and operation of transitional justice institutions will be less complicated and more easily acceptable for the community in question if technologies such as computers and the internet are not an entirely new phenomenon associated with strangers, different worldviews and a foreign lifestyle. Nevertheless, even if village elders – to evoke an admittedly clichéd image – may not instantly recognize the usefulness of new technologies, social media and new methods of dispute resolution,Footnote ⁶⁴ traditional mechanisms have always evolved and changed over time. They can adapt, and, with the required attention to the respective beliefs, needs, and demands, they can also be integrated into new processes. The result will largely depend on the intensity and carefulness of such collaborative efforts, and on the capacity and willingness of the actors involved – the communities most directly concerned, state authorities, civil society actors and foreign experts and donors – to understand each other and to give each other the necessary time and space to do so.