Transitional justice

Definitions

According to the ICTJ, the term "transitional justice" was coined by various American academics in the 1990s to "describe the different ways that countries had approached the problems of new regimes coming to power faced with massive violations by their predecessors."

The ICTJ says that transitional justice "refers to the ways countries emerging from periods of conflict and repression address large-scale or systematic human rights violations so numerous and so serious that the normal justice system will not be able to provide an adequate response." Measures used include criminal prosecutions, truth commissions, reparations and restitution programs, exhumation of mass graves, apologies, amnesty, memorials, film, literature, scientific research, rewriting school textbooks, lustration and vetting, and various kinds of institutional reforms to redress human rights abuses.

Transitional justice represents a set of such extraordinary responses, often delivered during critical junctures such as transitions from war to peace or from authoritarianism to democracy. Transitional justice is meant to both redress gross violations and identify avenues to address the structural causes of those violations, such as gender inequality and social exclusion. While transitional justice includes criminal accountability, it is undergirded by a broader understanding of justice that takes into account a range of victim needs and societal priorities. Transitional justice is necessary so that the SDGs do not leave behind communities in countries that have experienced massive rights violations.

— ICTJ January 31, 2019

Transitional justice has, however, undergone conceptual changes since it was first coined. The 'transitional' prefix used to indicate a form of exceptionalism whereby justice processes support a political transition. Justice processes could violate or compromise the rule of law, if they safeguarded a transition to democracy. Due to the field's normalisation, justice came to mean ordinary justice in exceptional circumstances. As the UN High Commissioner for Human Rights explained in 2009, transitional justice is 'not a particular conception of justice, such as distributive or retributive justice' but is 'rather a technical approach to exceptional challenges'.

Objectives

The primary objective of a transitional justice policy is to end the culture of impunity and establish the rule of law in a context of democratic governance. Transitional justice has roots in human rights protection and imputes certain humanitarian and justice obligations on states undergoing transitions. It challenges such societies to strive for a society where respect for human rights is the core and accountability is routinely practiced as the main goals. In the context of these goals, transitional justice aims at:

• Halting ongoing human rights abuses;
• Build social trust;
• Offer dignity to victims and their families;
• Investigating past crimes;
• Identifying those responsible for human rights violations;
• Imposing sanctions on those responsible (where it can);
• Providing reparations to victims;
• Preventing future abuses;
• Strengthen, remake, and reform state institutions;
• Security Sector Reform;
• Taking steps towards the establishment of positive peace
• Legitimize current state and in some cases de-legitimize the past state;
• Fostering individual and national reconciliation;
• Recognize victims as equal citizens;
• Acknowledging the past accurately;
• Help transition to a more just, equitable, peaceful, and democratic society.

In general, therefore, one can identify eight broad objectives that transitional justice aims to serve: establishing the truth, providing victims a public platform, holding perpetrators accountable, strengthening the rule of law, providing victims with compensation, effectuating institutional reform, promoting reconciliation, and promoting public deliberation.

Strategies

Transitional Justice is a collection of processes used with the intention to create positive peace through methods of acknowledgement, restoration, criminal justice, and amnesties. In order to be effective, transitional justice measures should be part of a holistic approach. Some human rights abuses can result in criminal prosecutions, particularly the most serious ones. Investigations to seek the truth and fact-finding processes into human rights violations by non-judicial bodies include Truth Commissions. Reparation programs can be in the form of "individual, collective, material, and/or symbolic" reparations. As a result of investigations, convictions and/or investigations, new or reformed laws may be adopted and institutions reformed, including those related to the "police, judiciary, military, and military intelligence." In some cases there are efforts to memorialization of the abuses. Affirmative action policies are sometimes used to facilitate transition. Gender justice ensures women have equal access to the mechanisms.

Mechanisms

The investigation and prosecution of serious international crimes, such as genocide, crimes against humanity, and war crimes helps to strengthen the rule of law by sanctioning those who violate laws with criminal penalties. It also demonstrates that crime will not be tolerated, and that human rights abusers will be held accountable for their actions. From its historical roots in the Nuremberg Trials, recent examples have included International Criminal Tribunal for Rwanda and International Criminal Tribunal for the former Yugoslavia, hybrid courts such as Special Court for Sierra Leone, Special Panels of the Dili District Court, Extraordinary Chambers in the Courts of Cambodia, Court of Bosnia and Herzegovina, and the establishment of the International Criminal Court (ICC), assuming a universal jurisdiction. The ICC and Hybrid Courts/Tribunals are key components of prosecution initiatives:

International Criminal Court

The International Criminal Court (ICC) was established by the Rome Statute in 1998. It is the first permanent international criminal court. It was established to investigate and try leaders of genocide, war crimes, and crimes against humanity in cases where countries are unable or unwilling to do so. The Rome Statute also established the Trust Fund for Victims to implement reparations and provide support for victims of war crimes and crimes against humanity tried by the ICC.

Hybrid courts and tribunals

Hybrid courts and tribunals have emerged as "third generation" courts established to investigate and prosecute human rights offenses. They follow the "first generation" Nuremberg and Tokyo tribunals and the "second generation" International Criminal Court and International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR). These courts consist of both international and domestic justice actors. They attempt to deliver justice that the domestic justice systems cannot provide alone due to lack of capacity or political will. Furthermore, hybrid courts attempt to strengthen domestic capacities to prosecute human rights abuses through the transfer of international legal skills and expertise. Examples include the Special Court for Sierra Leone and the Extraordinary Chambers in the Courts of Cambodia. The Gacaca for Rwanda was presented by the Rwandan authorities as being a hybrid system. The Special Jurisdiction for Peace in Colombia could also be considered one.

Reparations

Reparations aim to repair the suffering of victims of human rights abuses. They seek to make amends with victims, help them overcome the consequences of abuse, and provide rehabilitation. Reparations can fall along two axis, material or symbolic and individual or collective. Material reparations are the physical forms of reparations that are most commonly thought of such as money or the restoration of land. Symbolic reparations are the intangible forms reparations can take such as apologies, memorials, and commemorations. Individual reparations benefit individuals while collective reparations benefit the entire group who has suffered. They may include financial payments, social services including health care or education, or symbolic compensation such as public apologies.

Apologies

Apologies play a pivotal role in transitional justice processes by acknowledging historical injustices and fostering reconciliation within divided societies. They serve as symbolic gestures of accountability, validating the experiences of victims and survivors. Moreover, apologies contribute to the restoration of trust in institutions, paving the way for societal healing and the prevention of future conflicts. One example is the Canadian government's apology "Statement of Reconciliation" to indigenous Canadian families for removing their children and placing them in church-run Indian Residential Schools. The Canadian government also created a $350 million fund to help those affected by the schools.

Truth-seeking

Truth-seeking encompasses initiatives allowing actors in a country to investigate past abuses and seek redress for victims. These processes aim to enable societies to examine and come to terms with past crimes and human rights violations in order to prevent their recurrence. They help create documentation that prevents repressive regimes from rewriting history and denying the past. They can also help victims obtain closure by knowing the truth about what actually happened (such as to "disappeared" people) and understanding the atrocities they endured. Truth-seeking measures may include freedom of information legislation, declassification of archives, investigations, and truth commissions.

Truth commissions

Truth commissions are non-judicial commissions of inquiry that aim to discover and reveal past abuses by a government or non-state actors; about forty official truth commissions have been created worldwide. One example is the Truth and Reconciliation Commission in South Africa, which was established to help overcome apartheid and reconcile tensions in the country. Another example is the Truth and Reconciliation Commission of Canada which was created as part of a settlement with the survivors of the Canadian Indian Residential School System.

Memory and memorials

Memorials seek to preserve memories of people or events. In the context of transitional justice, they serve to honor those who died during conflict or other atrocities, examine the past, address contemporary issues and show respect to victims. They can help create records to prevent denial and help societies move forward. Memorials may include commemoration activities, such as architectural memorials, museums, and other commemorative events. One example includes the monuments, annual prayer ceremony, and mass grave in northern Uganda, created in response to the war conducted by and against the Lord's Resistance Army there. Another example is Fragmentos, an abstract memorial created by Doris Salcedo alongside the survivors of sexual abuse from the Colombian Conflict. It consists of 1,296 tiles made from 37 tons of melted down metal from the weapons of 13,000 former guerilla fighters to memorialize the peace agreement between the government of Colombia and FARC.

Institutional reform

Public institutions, including the police, military, and judiciary, often contribute to repression and other human rights violations. When societies undergo a transition, these institutions must be reformed in order to create accountability and prevent the recurrence of abuse. Institutional reform includes the process of restructuring these state actors to ensure that they respect human rights and abide by the rule of law.

Reforms can include measures such as vetting, lustration, and Disarmament, Demobilization and Reintegration (DDR). Vetting is the process of eliminating corrupt or abusive officials from public service employment. For instance, in Afghanistan, election candidates in the 2009 and 2010 elections were vetted. While similar to lustration, "vetting" is the broader category referring to processes aimed at screening and excluding human rights abusers from public institutions while "lustration" refers specifically to the vetting processes and laws that were implemented in the former communist countries in Eastern and Central Europe after the end of the Cold War. Vetting does not necessarily imply dismissals from the state apparatus. Several countries developed alternative personnel systems that provide for the inclusion of inherited personnel in exchange for their exposure or confession. DDR programs assist ex‑combatants in rejoining society.

One example of institutional reform is the removal of court officials involved in crimes of the fallen Tunisian regime. Under Ben Ali's rule, courts often facilitated corruption. The removal of implicated officials is a part of the government's efforts to reconcile this abuse.

Trends and challenges

States in times of transition to democracy, since the early 1980s, have been using a variety of transitional justice mechanisms as part of measures to account for the past and build a future democratic state. Mechanisms, such as trials, truth commissions, reparations, lustration, museums, and other memory sites have been employed either single-handedly or in a combined form to address past human rights violations. Diverse studies ranging from the decision-making process of a choice of strategy through to the implementation of the transitional justice policy and impacts on the transition and future stability of the society in question have been produced by scholars in recent years.

One illuminating study in particular that has documented the dramatic new trend of transitional justice and democratization is by Kathryn Sikkink and Carrie Booth Walling (2006). In their research paper described as the "justice cascade", Sikkink and Walling conducting analysis of truth commissions and human rights trials occurring throughout the world from 1979 to 2004 revealed a significant increase in the judicialization of world politics both regionally and internationally. Of the 192 countries surveyed, 34 have used truth commissions, and 50 had at least one transitional human rights trial.

More than two-thirds of the approximately 85 new and/or transitional countries during that period used either trials or truth commissions as a transitional justice mechanism; over half tried some form of judicial proceedings. Thus, the use of a truth commission and/or human rights trials among transitional countries is not an isolated or marginal practice, but a widespread social practice occurring in the bulk of transitional countries.

Since its emergence, transitional justice has encountered numerous challenges such as identifying victims, deciding the extent to which to punish superiors or middle agents, avoiding a "victor's justice", and finding adequate resources for compensation, trial, or institutional reform. Also, the transitional period may only result in a tenuous peace or fragile democracy.

As has been noted in the discourse on transition to democracy, the dilemma has always been for new regimes to promote accountability for past abuses without risking a smooth transition to democracy. In addition, the existing judicial system might be weak, corrupt, or ineffective, and in effect make achieving any viable justice difficult.

Observers of transitional justice application and processes, such as Makau W. Mutua (2000), have emphasized the difficulties of achieving actual justice through one of the most prominent mechanisms of transitional justice, criminal trials. Commenting on the International Criminal Tribunal for Rwanda that was established in 1994, he argued that it "serves to deflect responsibility, to assuage the consciences of states which were unwilling to stop the genocide... [and] largely masks the illegitimacy of the Tutsi regime". In sum, Matua argues that criminal tribunals such as those in Rwanda and Yugoslavia are "less meaningful if they cannot be applied or enforced without prejudice to redress transgressions or unless they have a deterrent effect such as behavior modification on the part of would be perpetrators".

More recently, Lyal S. Sunga has argued that unless truth commissions are set up and conducted according to international human rights law, international criminal law and international humanitarian law, they risk conflicting or undermining criminal prosecutions, whether these prosecutions are supposed to be carried out at the national or international levels. He contends that this risk is particularly pronounced where truth commissions employ amnesties, and especially blanket amnesties to pardon perpetrators of serious crimes. On the other hand, criminal prosecutions should be better tailored to focus on victims and to place events in proper perspective. Sunga therefore proposes ten principles for making truth and national reconciliation commissions fully complementary to criminal prosecutions in a way that conforms fully to international law.

This type of critique of transitional justice mechanisms might cause some scholars and policymakers to wonder which of the objectives outlined above are most important to achieve, and even the extent to which they are achievable. Truth commissions could be characterized as a second-best alternative and also an affront to rule of law, because of the possibility that amnesty and indemnities will be made exchange for truth. These sets of challenges can raise critical questions for transitional justice in its application. Questions and issues, such as: Can the "truth" ever really be established? Can all victims be given compensation or a public platform? Can all perpetrators be held accountable? Or is it sufficient to acknowledge that atrocities were committed and that victims should be compensated for their suffering?

Also, one might argue that too narrow a focus on the challenges of the field runs the risk of making transitional justice seem meaningless. However transitional justice aims at an ongoing search for truth, justice, forgiveness, and healing, and efforts undertaken within it help people to live alongside former enemies. Simply put, "the past must be addressed in order to reach the future". Thus, even if the impact or reach of transitional justice seems marginal, the end result is worth the effort.

Another way of assessing attempts at transitional justice is to say that decision makers may have less control over the methods used to pursue such policies than they imagine. In fact, whatever their wishes, they may not be able to prevent such policies at all. As A. James McAdams has demonstrated in his book, Judging the Past in Unified Germany (2001), West German policymakers such as former chancellor Helmut Kohl wanted to close public access to the files of East Germany's secret police, the Stasi, but pressures from East German dissidents prevented them from doing so.

Another challenge is the tension between peace and justice, which arises from the conflicting goals of achieving peace and justice in the aftermath of a society's emergence from conflict. Though it is generally acknowledged that both goals are integral to achieving reconciliation, practitioners often disagree about which goal should be pursued first: justice or peace? Proponents of the "justice" school of thought argue that if all perpetrators of human rights abuses do not stand trial, impunity for crimes will continue into the new regime, preventing it from fully completing a transition from conflict. The "peace" school of thought, however, argues that the only way to effectively end violence is by granting amnesties and brokering negotiations to persuade criminals to lay down their arms. Examples such as Northern Ireland illustrate how selective amnesties can cease conflict. Moreover, empirical research demonstrates that the level of a justice intervention affects the conditions of possibility for a negotiated solution to end civil war.

Recent trends in the post-conflict field have tended to favor the "justice" school of thought, maintaining that only if justice is dutifully served to victims of the conflict can civil war will be prevented from recurring. A 2011 debate in The Economist determined in its concluding polls that 76% of the debate participants agreed with the motion that achieving peace can occur only through implementing justice mechanisms.

Literary applications

Literary scholars and historians have begun to use the concept of transitional justice to reexamine historical events and texts. Christopher N. Warren, for instance, has applied transitional justice to pre-Restoration England, claiming that it helps explain how Anglican royalists convinced Presbyterians to assent to a restoration of the monarchy. Warren also argues that English poet John Milton "can be seen as an early critic of transitional justice," using the allegory of Sin and Death in his epic poem Paradise Lost to complicate "overly-rosy" depictions of transitional justice.

Future agenda

Transitional justice has become a feature of transitional politics in the 21st century. Policies, tools, and programs used in peacebuilding and the democratization process have been studied and researched, creating a stronger discourse around them. Many organizations utilize these tools including:

• The United Nations (UN)
• Stockholm-based International Institute for Electoral Assistance and Democracy (International IDEA)
• International Center for Transitional Justice (ICTJ)
• Institute for Justice and Reconciliation (IJR)
• Transitional Justice Institute African Transitional Justice Research Network (ATJRN)

Academic publications such as the International Journal of Transitional Justice are also contributing towards building an interdisciplinary field.

Challenges

The effectiveness of transitional justice is difficult to measure. The unique challenges any given country or region faces should be evaluated carefully. To avoid causing disappointment amongst victims, the state should ensure that the public is well-informed about the goals and limits of a set of actions.

Sikkink and Walling's comparison of human rights conditions before and after trials in Latin American countries with two or more trial years showed that eleven of the fourteen countries had better Political Terror Scale (PTS) ratings after trials. Latin American countries that had both a truth commission and human rights trials improved more on their PTS ratings than countries that only had trials. These statistics indicate that transitional justice mechanisms are associated with countries' improving their human rights practices.

The World Bank's "2011 World Development Report on Conflict, Security, and Development" links transitional justice to security and development. It explores how countries can avoid cycles of violence and argues that transitional justice is one of the "signaling mechanisms" that governments can use to show that they are breaking away from past practices. These measures can send signals about the importance of accountability and to improve institutional capacity.

Areas of Concern

Many toolkits, publications, manuals, and workshops have been developed to address transitional justice. This has led to concerns that the field of transitional justice has become standardised. Given the field's emphasis of context-sensitive justice processes, this may lead to superficial results.

In September 2011, the International Center for Transitional Justice (ICTJ) published a report advocating the need to understand traditional transitional justice measures from a child's perspective. The report identifies children as a large demographic often excluded from this process.

Major cases

• Loayza–Tamayo v. Peru, 1998 Inter-Am. Ct. H.R. (ser. C) No. 42 (November 27, 1998)
• Garrido and Baigorria v. Argentina, 1998 Inter-Am. Ct. H.R. (ser. C) No. 39, 72 (August 27, 1998)
• Moiwana Community v. Suriname, 2005 Inter-Am. Ct. H.R. (ser. C) No. 124, 100 (June 15, 2005)