Transitional justice

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Transitional justice generally refers to a range of approaches that states may use to address past human rights wrongs and includes both judicial and non-judicial approaches. They include series of actions or policies and their resulting institutions, which may be enacted at a point of political transition from violence and repression to societal stability. Transitional justice is informed by a society’s desire to rebuild social trust, repair a fractured justice system, and build a democratic system of governance. The core value of transitional justice is the notion of justice: not necessarily criminal justice, but other forms of justice as well. This notion and the political transformation, such as regime change or transition from conflict, are thus linked toward a more peaceful, certain and democratic future.

The term ‘transitional justice’ has recently received greater attention by both academics and policymakers. It has also generated interest in the fields of political and legal discourse, especially in transitional societies. In period of political transitions, from authoritarian, dictatorial regimes or from civil conflicts to a democracy, transitional justice has often provided opportunities for such societies to address past human rights abuses, mass atrocities, or other forms of severe trauma in order to facilitate a smooth transition into a more democratic or peaceful future. This article discusses the concept of transitional justice: the definition, its historical roots and development, various models, modern-day trends of application in transitional states and its future in a transitional and democratization discourse.

Contents

[edit] The nature and history of transitional justice

The origins of the transitional justice field can be traced back to the post-Word War II period in Europe with the establishment of the International Military Tribunal at Nuremberg and the various de-Nazification programs in Germany and the trials of Japanese soldiers. To be precise, what became known as the ‘Nuremberg Trials’, when the victorious allied forces extended criminal justice to Japanese and German soldiers and their leaders for war crimes committed during the war, marked the genesis of transitional justice. The field gained momentum and coherence during the 1980s and onwards, beginning with the trials of former members of the military juntas in Greece (1975) and Argentina (Trial of the Juntas, 1983). The focus of transitional justice in the 1970s and 1980s was on criminal justice with a focus on human rights promotion. This led to a worldwide focus and progressive rise of human rights regime culminating in the establishments of international human rights laws and conventions.

The emphasis of transitional justice was on how abuses of human rights get treated during political transition: legal and criminal prosecution. As noted earlier, the universal conceptions of ‘justice’ became the platform for which transitional justice was premised. The field in its early epistemology, thus, assumed jurisprudence of human rights. It is no surprise then that initial literature on transitional justice was dominated by lawyers, law and legal rights: defining laws, and processes on how to deal with human rights abuse and holding people accountable. Thus, transitional justice has its roots in both the human rights movement and in international human rights and humanitarian law. These origins in the human rights movement have necessarily rendered transitional justice “self-consciously victim-centric”.

The late 1980s and early 1990s saw a shift in the focus of transitional justice. Informed by the worldwide wave of democratization, particularly the third wave, transitional justice re-emerged as a new field of study in democratization. Transitional justice broadened its scope from more narrow questions of jurisprudence to political considerations of developing stable democratic institutions and renewing civil society. Studies by scholars on the transition from autocratic regimes to democratic ones, including those by Samuel Huntington, O’Donnell and Schimiter, have all integrated the transitional justice framework into an examination of the political processes inherent to democratic change. The challenges of democratization in transitional periods are many: settling past accounts without derailing democratic progress, developing judicial or third-party fora capable of resolving conflicts, working out reparations, and even creating memorials and developing educational curricula that redress cultural lacunae and unhealed trauma in a nation's historical memory.

Clearly the elements of transitional transition have broken the initial mold of post-war jurisprudence. The transitional justice framework has benefited from the work of democratic activists and their allies in government who sought to bolster fledgling democracies and bring them into line with the moral and legal obligations articulated in the international human rights consensus.

One particular innovation is the appearance of truth commissions. Beginning with Argentina in 1983, Chile in 1990, and the most popular, South Africa in 1995, truth commissions have become a symbol of transitional justice, appearing in transitional societies in Latin America, Africa, Asia, Eastern Europe. Recent years have seen proposals for truth and reconciliation commissions in conflict zones of the Middle East and it is likely that these transitional justice institutions will someday figure prominently in Israel and Palestine, Iraq, Lebanon, and the Kurdish regions.

From its core values as a link between transition and justice in the late 1940s, the concept of transitional justice has been transformed to assume a broader perspective of comprehensive examination of the society in transition from a retrospective position to a prospective one with democratic consolidation as one of the primary objectives. It must be noted that scholars and practitioners of democratization have come to a common conclusion on the general principles of a transitional justice framework: that national strategies to confront past abuses, depending on the specific nature and context of the country in question, can contribute to accountability, an end to impunity, reconstruct state-citizen relations, and the creation of democratic institutions...

[edit] Aims/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. The legal and human rights protection roots of transitional justice impute certain legal 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;
  • 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;
  • preserving and enhancing peace; and
  • fostering individual and national reconciliation.

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.

[edit] Strategies and forms of transitional justice

Four broad categories of strategies or forms of transitional justice can be identified:

  • Trials and Prosecution: This is a criminal justice or judicial approach, either undertaken domestically, internationally or what has become known in recent years as the hybrid. From its historical trace to the ‘Nuremberg Trials’ recent examples have included the Sierra Leone’s Special Court, the International Tribunal for Rwanda and Yugoslavia and in the last few years the establishment of the International Criminal Court (ICC), assuming a universal jurisdiction;
  • Truth Commission: A non-judicial or quasi judicial approach, it has become very common and popular in recent transitional societies. It investigates the past to determine the full extent and nature of past abuses through truth-telling processes; holds perpetrators of past violations accountable, forges reconciliation; develops reparations packages; memorializes victims, survivors or historical events; and makes proposals for the reform of abusive state institutions in order to prevent future violations. There have been both national (Argentina in 1983, Chile 1990, South Africa in 1995, Ghana in 2002) and international (El Salvador in 1992, Guatemala in 1997, East Timor in 2001, Sierra Leone in 2002) truth commissions;
  • Lustration and/or Vetting: This includes purging the public services and especially the security sector, a process of excluding corrupt, abusive and incompetent officials from working in the public sector. This strategy has been common in Eastern Europe, such as former Czechoslovakia. Vetting is a process of examination and evaluation to eliminate corrupt and abusive officials through due process. This process furthers accountability, democratization and credibility of institutions; and
  • Institutional Reform: Reform of abusive public institutions such as the police, military and security intelligence establishments, the judiciary, prisons, amendments of obnoxious and abusive laws as well as constitutions.

These strategies can be applied singly or, more effectively, in combination. States, since 1980s, have increasingly used this combination approach. For example, transitional justice can take the form of prosecuting perpetrators through domestic, foreign, or international tribunals and/or establishing a truth commission to investigate the past and forging reconciliation; or developing reparations packages as well as memorializing and remembering victims; and reforming abusive state institutions in order to prevent future violations. The case of Sierra Leone is one notable example of this feature, where criminal justice was combined with a truth and reconciliation commission. In addition, local and traditional forms of justice, reconciliation and community reintegration initiatives, such as the ‘Gacaca court’ in Rwanda, have been witnessed in some transitional societies.

[edit] Trends and challenges within transitional justice

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. But perhaps, one illuminating study 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 significantly, well over 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 very widespread social practice occurring in the bulk of transitional countries, noted the authors.

Transitional justice, since its emergence, has encountered numerous challenges. In particular, these challenges are related to the goals of transitional justice. Achieving these goals can be fraught with difficulties such as identifying victims, deciding whether 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, 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 Mutua (2000) emphasized on the difficulties of achieving actual justice through one of the most prominent mechanisms of transitional justice, trials. Commenting on the international tribunal established in Rwanda 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.”

This type of critique of transitional justice mechanisms causes one to wonder which of the objectives outlined above are most important to achieve, and even if they are achievable. For its part truth commissions have been characterized as the second best alternative and also an affront to rule of law, because of its tolerance to amnesty and indemnities in exchange for truth. These sets of challenges 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?

Too narrow a focus on the challenges of the field runs the risk of making it seem meaningless. It aims at an ongoing search for truth, justice, forgiveness, and healing, however, 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.

[edit] The future of transitional justice

Although transitional justice is engulfed by many critical challenges in addition to the difficulty in measuring its impact, given the number of other factors in any given country’s experience over time, there is no reason to believe that human rights trials or truth commissions have a negative effect on human rights practices. This makes transitional justice viable, especially in this age of state-building and democracy promotion in post-conflict societies. In fact, 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 (11) of the fourteen (14) 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. Each state that employs transitional justice mechanisms will have to determine which mechanisms to use to best achieve the targeted goals. In order to avoid causing disappointment amongst victims, the state should also ensure that the public is well-informed about the goals and limits of those mechanisms.

Transitional justice shows no signs of decreasing in use. Indeed, the incorporation of transitional justice policies, tools and programs in peacebuilding and democratization process operations by the United Nations (UN) and in the programs by many local and international democracy promotion organizations, including, the Stockholm based International Institute for Electoral Assistance and Democracy (International IDEA)and a host of others as well as the establishments of other international non-governmental organizations (INGOs) and networks such as the International Center for Transitional Justice (ICTJ) and the African Transitional Justice Research Network (ATJRN) are strong manifestations of how well placed transitional justice has become a feature in the discourse of transitional politics in the twenty-first century. Academic publications such as the International Journal of Transitional Justice are also contributing towards building an interdisciplinary field based on sound research. It is hoped that the development of the field will ensure that future innovations are tailored for a specific state’s situation and will contribute towards political transitions that address the past as well as establish guarantees for the respect of human rights and democracy in the future.

[edit] Bibliography

  • Cobban, Helena (2007). AMNESTY AFTER ATROCITY: Healing Nations after Genocide and War Crimes. Boulder, CO: Paradigm Publishers. ISBN 978-1-59451-316-9.  The final chapter of this book is available online at Restoring Peacemaking, Revaluing History. Retrieved on 2008-01-01.
  • Kritz, Neil, ed. (1995). Transitional Justice: How Emerging Democracies Reckon with Former Regimes, Vols. I–III. Washington, D.C.: U.S. Institute of Peace Press.
  • Mendez, Juan E. (1997). "Accountability for Past Abuses." Human Rights Quarterly 19:255.
  • Nino, Carlos S. (1996). Radical Evil on Trial. New Haven, Conn.: Yale University Press.
  • Zalaquett, Jose (1993). "Introduction to the English Edition." In Chilean National Commission on Truth and Reconciliation: Report of the Chilean National Commission on Truth and Reconciliation, trans. Phillip E. Berryman. South Bend, Ind.: University of Notre Dame Press.

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