1. Justice and Reconciliation
Final paper, Fall 2014
Silje Holm Emilsen
Over the course of this semester, we have discussed various interpretations and approaches to
reconciliation and justice. This paper will describe the different approaches to justice; retributive,
restorative and transitional justice before drawing a short comparison of the different approaches.
Furthermore, it will describe reconciliation and the interrelationship between justice and
reconciliation before proceeding to give background information about the conflict in the
Republic of South Sudan and present the current challenges. Additionally, it will analyze the
conflict in South Sudan and how the concepts of justice and reconciliation apply and how these
concepts enhance my understanding of the chosen conflict.

2. 1
I. Justice
While there are many different interpretations of the term justice, it always comes down to
describe fairness, equity, just treatment, fair and behavior and morality. It can be considered a
virtue and describes a person or an act that can be viewed as morally right, based on the
circumstances. Assuming that justice is indeed a virtue, it can be used to describe the freedom
and dignity of human liberty, requiring the moral justification of every individual to foster and
protect individual liberty and basic rights. Thomas Hobbes, while discussing justice, once said
that “for the laws of nature (as justice, equity, modesty, mercy, and in sum, doing to other as we
would be done to) of themselves, without the terror of some power, to cause them to be observed,
are contrary to our natural passions, that carry us to partiality, pride, revenge and the like”.1 By
violating other people’s rights, there is a breach of the societal agreements of social contract. By
doing so, you are subjected to forms of punishment based on the source of your crime and the
injustice you caused. Every society has some form of a rule of law and the citizens enjoy the
benefits, whether these rules are grounded in human consensus or societal norms. When breaking
the law and committing a crime, justice should be served to balance the scales of justice within a
society and reinforce the rules.
i. Restorative justice
Restorative justice focuses on repairing the damage done by the perpetrator. While criminal law
is usually focusing on the perpetrator, restorative justice turns the attention to the victim and the
harm they suffered. With a third-party facilitator, the victim and the offender is able to meet and
discuss the future, rather than the past, and achieve a balance between peace and justice.
ii. Retributive justice
The primary focus when it comes to retributive justice is punishment and that those who break
the law should receive what they deserve in return. Retributive justice can be viewed as
backward-looking and the punishment is warranted as a response to the crime committed and
should be proportionate to the seriousness of the crime. While it should be proportionate, the
punishment does not have to be equivalent to the crime. If violating human rights, international
law or commit war crimes, retributive justice plays a central role in addressing these violations.
1 Leviathan. (1998, April 7). Retrieved December 4, 2014, accessible at:
http://www.austincc.edu/philosophy/archives/Hobbes/Leviathan/chap17.html

3. 2
iii. Transitional justice
Transitional justice is the processes and mechanisms that come in to play when a society is trying
to come to terms with violations, abuses or atrocities. In order to serve justice, transitional justice
ensures accountability and is working towards reconciliation. A country torn by conflict might
have little to no security measures, a divided population and limited resources. By establishing
and implementing a transitional justice programme, in should be targeted at the specific conflict
and the mechanisms should be both non-judicial and judicial, including reparations, truth-seeking
efforts, prosecution and new reforms. To enhance sustainability, all matters should be taken into
account, such as the roots of the conflict and the violations of human rights. These measures
should be ruled by the protection of victim’s rights.
II. Short personal comparison
While restorative justice is easier to achieve in a small-scale and is primarily focused on the
healing of the victim and the future and reconciliation between the victim and the perpetrator,
retributive justice is used when dealing with crimes against a nation or a State. Where restorative
justice is focused on the perpetrators taking responsibility for their actions and repair the harm
caused, the retributive justice is more defined, even if more vague, as taking punishment. While
in restorative justice, a punishment alone is not effective and cannot change behavior, retributive
justice is based on the fact that punishment can indeed change behavior. Whereas restorative
justice is more a means of problem-solving and emphasis is put on the future, retributive justice is
focused on the past and establishing guilt and/or blame.
The main risk of retributive justice is that emphasis might be put on revenge. The victims
may be caught up in feelings of revenge, anger, hatred and bitterness and can lead to excessive
punishments and reciprocal acts of violence, especially in societies where proportionality and
consistency are more blurred principles. The main limitation of restorative justice is that since the
emphasis is put on discussion, facilitation and dialogue, there is always a risk of the perpetrator
not complying with the set agreements and that the victims and/or the perpetrators not always
attend the meetings and the facilitations. 2
2 R. Karp,D., Sweet,M., Kirshenbaum, A., & Bazemore, G. (2004, June 1). Reluctant participants in
restorative justice? Youthful offenders and their parents. Retrieved December 4, 2014, available at:
http://www.skidmore.edu/~dkarp/Karp Vitae_files/Reluctant Participants in Restorative Justice.pdf

4. 3
III. Reconciliation
Since there is no standard definition of the term reconciliation, it is up for discussion and over the
course of the semester we have discussed various interpretations. John Paul Lederach states that
reconciliation is about “opening up the social space that permits and encourages individuals
and societies as a collective, to acknowledge the past, mourn the losses, validate the pain
experienced, confess the wrongs, and reach toward restoring a broken relationship”. 3 He
identified four critical components of reconciliation; truth, justice, mercy and peace.4 My
interpretation is that it is a process that can be societal, political, individual, national,
psychological, emotional and/or cognitive and is used to describe the state of relationships that
help people live together in peace.
Assuming that it can be described as a process, I think full reconciliation is the ultimate
end goal of such a process, if it can ever be achieved. Reconciliation applies to everyone and is
not focused only on the victims and perpetrators, and is a process where we might have to change
our own beliefs and aspirations about “the enemy/the other side” and create a shared vision for
the future. During a conflict, people develop what I would call a “conflict-identity” based on
prejudices, attitudes and negative stereotypes of the other side and this identity must be
challenged in order to reconcile and restore friendly relations.
Andrew Rigby described four phases of reconciliation; 1) securing the peace in order for
people to feel less vulnerable; 2) Uncovering the truth – a need to know what happen to your
loved ones; 3) approaching justice – identify the perpetrators responsible and for the perpetrators
to pay for their actions and 4) putting the past in its proper place and turn it into a matter of
memory rather than something that is still on-going.5
One way to foster reconciliation is the establishment of truth and reconciliation
commissions like the one in South Africa. A TRC is a commission that is set to investigate and
reveal wrongdoings and committed crimes. By doing so, they make the past transparent to the
society and the victims. These TRCs are usually set up when the State has committed crimes or
3 Daly, E., & Hughes, J. (2007). Reconciliation directed. In Reconciliation in divided societies:Finding
common ground (p. 180). Philadelphia, Pa.:University of Pennsylvania Press.
4 Reconciliation. (1998, January 1). Retrieved December 5,2014, available at:
http://www.colorado.edu/conflict/peace/treatment/recocil.htm
5 Rigby, A. (2001). Toward a culture of reconciliation. In Justice and reconciliation: After the violence
(pp. 186-190). Boulder, Colo.: L. Rienner.

5. 4
terrorism against the population within the country. The main purpose is to get a complete picture
of what happened, what caused it and to what extent it happened – and then proceed towards
restoring the human and civil dignity of the victims by giving them the opportunity to tell their
own story
IV. The interrelationship between justice and reconciliation
The world is in urgent need of restoring broken relationships and societies are longing for
reconciliation. The challenge of balancing peace and justice in the pursuit of reconciliation and
conflict resolution is problematic. In my view, to reconcile you need some degree of justice in
order to be able to restore relations, while you do not need to reconcile to achieve justice. By
using forgiveness as means of peacemaking, it should and may be felt as some kind of
empowerment by the people who suffered the injustice. The distinction to be made is who
forgives whom and for what. Forgiveness implies that there is some form of relationship or there
is a transformation – and the healing of a relationship or the creation of a new relationship to
transition from one dimension to another. Assuming that forgiveness can be used as an
empowerment and a powerful tool, it is important to understand that there is never complete
justice; the lost lives and time and the emotional scars that people are forced to live with. If
people are able to forgive, that may be the first step towards reconciliation.
Another critical component of both justice and reconciliation is the mutual understanding
of the real wrongs that have been suffered or the sins committed, and whether the history is
doomed to repeat it self or if there is a hope and a need for a peaceful coexistence. By asking for
forgiveness as part of a process to achieve justice and reconciliation, words and deeds of the
actors involved cannot be disentangled. If what is to be sought is compensatory justice or
restoration of the status quo, it does not carry with it a cold-cut remedy that the past is the past
and whatever happened is righted, but it implies recognition of the wrongs committed. Extending
and receiving forgiveness can be viewed as an on-going form of reconciliation.
On the other hand, compensation, full reparation and just punishment are next to
impossible when dealing with atrocities like genocides and war crimes. While one individual
might be able to seek restorative justice and forgive, another individual may not ever be able to
forgive and reconcile with the perpetrators. In cases of seeking justice and be able to reconcile
after large-scale horrors, I think that there is need of dramatic transformations in the horizon of

6. 5
expectations. If focusing on the ability to change the framework of the expectations and view it as
an overall structure of justice that can prevent future atrocities, the sole punishment of the
perpetrators can be viewed as not as important as putting an end to the present.
On the contrary, if one were to view abandonment of the pursuit of justice to promote
reconciliation, the use of such institutions as the International Criminal Court can be justified as
means to achieve reconciliation. For instance, the ICC has only issued warrants against African
countries that have committed war crimes and crimes against humanity. The issuance of these
arrest warrants has been subjected to criticisms, stating that the “ICC indictment blocks the
attainment of peace”. This became more evident when Joseph Kony refused to participate in the
peace negotiations after the ICC issued an arrest warrant against him. It is important to bear in
mind what the end goal is, especially in cases of mass atrocities, whether it is the punishment of
the perpetrators or to put an end to the on-going violence. If the punishment was to be viewed as
justice being served while there is still an on-going conflict, it would be more difficult to even
start the process of reconciliation based on Rigby’s four phases of reconciliation.
If viewing justice as one-on-one relations between individuals or sub-groups and by
seeking to achieve retributive rather than restorative justice, the perpetrators and their societies
may turn this into revenge, which would make reconciliation next to impossible. These justices to
be sought between individuals, even if low-scale, may have both political and social dimensions,
considering that even low-scale injustices can encourage the continuation of injustices and inflict
future harm on a State or a Nation if individuals can act with impunity and not fear being
punished for their violations.
Going back to Joseph Kony and the ICC, if Kony was to be punished under international
law, can be considered a prerequisite of reconciliation because he would be unable to carry on his
injustices. On the other hand, the ICC would be unable to prosecute all of the members of the
Lord’s Resistance Army and there is to this date no institution to take the responsibility of
prosecuting individual members. If the ICC were to revoke the arrest warrant against Kony,
would he attend peace negotiations that could possibly lead to justice and reconciliation?
Justice and reconciliation are to processes that are entangled and both seek to restore
relations, heal the ones who have suffered and help people live together in peace. To achieve
authentic reconciliation, justice plays a complimentary role and there is a need of the continuation
of achieving justice to be able to reconcile.

7. 6
V. The Republic of South Sudan
i. Background
South Sudan is the world’s newest country and has been torn by a brutal civil war. South Sudan
gained independence from Sudan in 2011 as part of a peace agreement to end the civil war.
Sudan was torn by the first civil war in 1946 and then a second civil war broke out in 1983 after
the President imposed the Islamic Sharia Law to have sole jurisdiction throughout Sudan. The
Southern part of Sudan established the Sudan Peoples Liberation Army (SPLA) to fight against
the regime and preserve what they called the “unity of Sudan”. There was civil unrest in Sudan
for years to follow and the Transitional Military Council removed the President from power and
established a new rule of law. The fighting continued and several internal conflicts occurred
between the different ethnic groups. In 2003, the Justice and Equality Movement (JEM) and the
Sudan People’s Liberation Movement accused the current President of marginalizing the part of
the population that was not of Arab origin and the Government responded by carrying out attacks
to ethnic cleanse Sudan of non-Arabs.
In 2005, the SPLA, SPLM and JEM signed a mutual peace agreement called the
Comprehensive Peace Agreement to put an end to the civil war. As part of the agreement, the
Southern part of Sudan would gain their independence after they created and established
institutions and rule of law within their State. Even after the peace agreement was signed there
was still tension and fighting in the Darfur region in Sudan and a ceasefire agreement were
rejected by the rebel forces.
ii. Current challenges and the conflict situation
While the independence sparked new hope in the population in South Sudan, it became evident
that they were facing enormous challenges such as corruption, unstable institutions and political
instability. With lack of access to basic needs and tensions between the South Sudanese
Government and the Sudanese Government over oil revenues, the population was vulnerable and
in 2013, a war broke out between the two ethnic groups in South Sudan; the Dinka and the Nuer.

8. 7
The East African Inter-Governmental Authority on development has tried to reach a peace
agreement between the two ethnic groups by negotiating peace. This has been unsuccessful and
violence quickly spread throughout South Sudan and left thousands of dead. 6
VI. Analysis
In a situation like this, I think it is difficult to know where to set the focus and where to start to
achieve justice, peace and reconciliation. A country divided in ethnic groups that have each been
subjected to violence by the other side and that is highly corrupt and unstable doesn’t meet the
initial framework of reconciliation. With persistent and continuing violence, not only between
rebel groups, but where the national army is also participating, the population is subject to
violence and forced internal displacement.
i. The international community
The Right to Protect (R2P) is a doctrine that refers to the obligation of States towards their own
population and any other population that is at risk of genocide, war crimes, ethnic cleansing and
crimes against humanity. The international community has a responsibility to assist and
encourage other States in meeting these responsibilities. If a State is unable to protect its own
population, the international community can take appropriate and collective action in accordance
to the United Nations Charter. According to this doctrine and relating to the situation in South
Sudan, the first step towards any peace and justice would be for the international community to
impose sanctions and punitive measures against the military and rebel force commanders. By
imposing punitive measures, you set the groundwork for peace by putting an end to the conflict.
ii. Retributive justice
Retributive justice in cases where there is an on-going conflict might be the only possible
solution to put an end to the conflict and create a more stable and sustainable environment for
peace. On the other hand, by referring the commanders to institutions like the ICC, there is a
possibility that you are creating even more tensions between the groups involved and that it is
persistently more vulnerable for renewed conflict. From my understanding, freezing assets and
putting travel bans on individuals are measures that can be taken by other States, but is unfeasible
when dealing with leaders of third-world countries where the economic aspect is not the source of
6 Conflicts in South Sudan. (2014, October 1). Retrieved December 8,2014, available at:
http://www.enoughproject.org/conflicts/sudans/conflicts-south-sudan

9. 8
the conflict, but rather ethnic or religious division. A perpetrator with nothing to lose is more
dangerous and unstable than someone who has everything to lose, and punitive measures like that
would most likely not put an end to violence. The threat of prosecution would be more realistic,
whether it is national, regional or international. By using retributive justice as a tool to promote
peace and justice, you are setting the foundation and the preliminary basis for a more lasting
peace.
What can be more menacing by using the concept of retributive justice as the sole justice
system is that the process of healing the victims of the conflict is set aside. By embracing the
concept of retributive justice, in a country like South Sudan, that is suffering from unrest and
tension can move towards renewed conflict rather than lasting peace, based on the fact that not all
the perpetrators would receive punishment and the victims have not received any form of
restoration and are unable to reconcile.
iii. Restorative justice
On the contrary, restorative justice is easier achieved in a small-scale within individuals and
communities. By letting the victims take an active part in the process and foster dialogue between
the victim and the offender, you remove the tension and achieve better accountability. The
perpetrators are encouraged to take responsibility for their actions and to repair the harm. These
measures in a country like South-Sudan would improve and restore community relations and be a
better calculation when measuring the possibility of renewed conflict.
Restorative justice has been used as the main justice systems throughout Africa and by
letting the population in South Sudan restore their relationships with their neighboring villages or
regions while being able to heal and work towards forgiveness. My main concern is the security
situation within the State and whether they would be able to create a safe space for the victims,
the perpetrators and their families. By uncovering the truth about what happened to your loved
ones or why it happened to you, you achieve a balance within a vulnerable society. By creating a
space where people can forgive, you serve not only the relationships, but also the moral system
and the moral requirements that are so fundamental for a reconciliation process, and not the other
way around.
Assuming that the use of restorative justice would be feasible in South Sudan, it can
transform the conflict to a state where people can heal, but more importantly it can be an official
recognition of mutual wrongs and acceptance of the gesture of recognition becomes a form of

10. 9
forgiveness that makes restorative justice possible. From my understanding of the conflict in
South Sudan, the population in would highly benefit from restorative justice within their
communities. On the contrary, I do not think restorative justice should be the first step-stone
towards peace, but rather follow behind retributive justice when the most important offenders of
hideous crimes and crimes against humanity have received their punishment by a competent
tribunal.
iii. Transitional justice
One would assume that for large parts of the population in South Sudan, there cannot be peace
without justice and people must be held accountable. To be able to transition a conflict,
accountability is crucial. Not only the accountability when it comes to the offenders, but the
accountability of a safe State with capable institutions and significant safety measures. South
Sudan seems to be lacking even basic infrastructure such as roads and hospitals. After the
independence from Sudan, South Sudan lost access to the major oil pipeline in the Northern
Region, which the South is totally dependent on. To enhance sustainability, the roots of the
conflict and the violations of human rights must be investigated, but without a functioning
government and a government that lacks financial resources, this might be very strenuous and
demanding. Another major hardship is that South Sudan lacks both non-judicial and judicial
enforcement mechanisms, which in turn would make it hard to prosecute individuals. The
Presidential Commission that was established by the President has failed to hold both individuals
and government forces accountable for any of the atrocities that have happened within the
borders. A better economy and a capable Government that have the victim’s rights in mind would
be a crucial first-step in trying to achieve transitional justice in South Sudan.
IV. Reconciliation
If one were to accept my definition of reconciliation, it would be viewed as a process that can be
societal, political, individual, national, psychological, emotional and/or cognitive and is used to
describe the state of relationships that help people live together in peace. For people to even be
able to leave together in peace, there must be some form of justice present to start to even think
about reconciliation. Assuming that the definition of conflict-identity can applies to people who
have experienced and worked through conflict, South Sudan would have to challenge these
prejudices, attitudes and negative stereotypes to reconcile. After nearly 70 years of civil wars and
conflict, this conflict-identity is deeply embedded into their own identity and their own

11. 10
perception of the reality. To challenge this identity to foster reconciliation might be proven very
difficult, but could be the first step if used as a tool in restorative justice before proceeding
towards reconciliation.
Another way to foster reconciliation in South Sudan would be to establish a truth and
reconciliation commission. By creating an independent commission that could investigate the
atrocities and the abuses, you are also giving the victims an opportunity to speak freely. Small-
scale truth commissions or civil society initiatives that are aware of the dynamic in the society,
the culture and the beliefs might be the best option for reconciling divided groups in a post-war-
torn society. On the contrary, I do not accept the use of amnesty when dealing with gross human
rights violations and ethnic cleansing and I suggest limiting the use of amnesty to better
guarantee a more stable peace-process, but also to provide justice for the people who suffered.
VII. Conclusion
In my conclusion, I would like to point out that there is no simple solution to end an ethnic
conflict like the one they are facing in South Sudan. It is difficult to make full reparation and just
punishment when dealing with atrocities. If focusing on one form of justice, people’s
expectations might never be fulfilled and does generate that there would be no new victims. I do
not believe that forgiveness has to be tied to justice at every moment, nor do I believe that justice
has to be tied to reconciliation. I do believe that reconciliation has to be tied to justice and that the
first crucial step in this conflict would be for the international community to be involved and
create hybrid tribunals to serve retributive justice. By creating hybrid tribunals, countries that do
not have sufficient economies, can achieve aid from other States and be better equipped to protect
their population while prosecuting the perpetrators. At the same time, a truth commission
investigating the abuses so that there is sufficient investigation is to be preferred.
The next step would be restorative justice within the societies, by using a Chief or other
influential persons as facilitators, where you can shift the vulnerability over to control and start
the healing process. Widespread individual healing may not be possible, but a healed society can
promote peace and have a positive effect on ethnic divisions. I believe that peace is related to
justice and when justice is served, it is easier for all parties to continue to live side by side in a
peaceful way, across ethnic and religious lines.