History[edit]
The origins of the transitional justice field can be traced back to the post-World 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 at the Tokyo Tribunal. 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.[2]
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 on which transitional justice was premised. The field in its early epistemology, thus, assumed jurisprudence of human rights. As a result, the 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 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 reemerged 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 have 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, reparations, and creating memorials and developing educational curricula that redress cultural lacunae and unhealed trauma.
It is clear that elements of transitional justice have broken the initial mold of post-war jurisprudence. The transitional justice framework has benefited from democratic activists who sought to bolster fledgling democracies and bring them into line with the moral and legal obligations articulated in the international human rights consensus.
Canada, Australia, and New Zealand have used transitional justice approaches to address Indigenous oppression. Racial justice issues in the United States have been discussed using transitional justice language.[3]
One particular innovation is the appearance of truth commissions. Beginning with Argentina in 1983, Chile in 1990, and South Africa in 1995, truth commissions have become a symbol of transitional justice, appearing in transitional societies in Latin America, Africa, Asia, and Eastern Europe. However, several attempts to create a regional truth commission in the former Yugoslavia (REKOM) have failed due to political obstacles. Recent years have also seen proposals for truth and reconciliation commissions in conflict zones of the Middle East: Israel and Palestine, Iraq, Lebanon, and the Kurdish regions.
Another major institutional innovation is the appearance of the variety of lustration programs in Central and Eastern Europe since the 1990s. While most countries pursued programs based on dismissals of compromised personnel and comprehensive screening tools, other countries implemented more inclusive methods allowing discredited personnel a second chance.[4]
As a link between transition and justice, the concept of transitional justice transformed in the late 1940s to assume a broader perspective of comprehensive examination of the society in transition from a retrospective to a prospective position with democratic consolidation as one of the primary objectives. 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.
According to the International Center for Transitional Justice (ICTJ) and the international Task Force on Justice, an integral element of the Sustainable Development Goals (SDGs) includes the reduction of the "justice gap"[5] The Working Group on Transitional Justice and SDG16+ said that "while the SDGs are universal", "massive and serious human rights violations create conditions in which extraordinary justice interventions are required to make progress toward sustainable peace and development."[5][6]
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:
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[edit]
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.[7] Investigations to seek the truth and fact-finding processes into human rights violations by non-judicial bodies include Truth Commissions.[7] 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."[7] In some cases there are efforts to memorialization of the abuses. Affirmative action policies are sometimes used to facilitate transition.[10] Gender justice ensures women have equal access to the mechanisms.
Future agenda[edit]
Although transitional justice is engulfed by many critical challenges in addition to the difficulty in measuring its impact,[36] [37] given the number of other factors in any given country's experience over time, human rights trials or truth commissions need not 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 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. 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), Institute for Justice and Reconciliation (IJR) and the African Transitional Justice Research Network (ATJRN) and research centers like the Transitional Justice Institute are strong manifestations of how well placed transitional justice has become a feature in the discourse of transitional politics in the 21st century. Academic publications such as the International Journal of Transitional Justice are also contributing towards building an interdisciplinary field with the hope that future innovations are tailored to a specific state's situation and will contribute towards political transitions that address the past as well as establish guarantees for respect of human rights and democracy.
The mainstreaming of transitional justice, the many toolkit publications, manuals, and workshops as well as the common conceptualisations used across national, regional and international policy programmes indicate that the field of transitional justice has become standardised.[38] This is curious given the field's emphasis of context-sensitive justice processes.
The World Bank's "2011 World Development Report on Conflict, Security, and Development" links transitional justice to security and development.[39] It explores how countries can avoid cycles of violence and emphasizes the importance of transitional justice, arguing that it is one of the "signaling mechanisms" that governments can use to show that they are breaking away from past practices. It also argues that transitional justice measures can send signals about the importance of accountability and to improve institutional capacity.[40]
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 too often excluded from traditional transitional justice measures.[41]