Transitional justice
Encyclopedia
Transitional justice generally refers to a range of approaches that states may use to address past human rights violations 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 democratisation discourse.
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 Japan
ese 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 commission
s. 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.
Another major institutional innovation is the appearance of the variety of lustration (vetting) programs in Central and Eastern Europe since the 1990s. While most countries pursued programs based on dismissals of compromised personnel, other countries implemented more inclusive methods that provided discredited personnel with a second chance in exchange for truth.
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...
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.
1. Prosecutions
– The investigation and prosecution of serious international crimes, such as genocide
, crimes against humanity, and war crimes. It helps 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 in the last few years the establishment of the International Criminal Court
(ICC), assuming a universal jurisdiction
. The ICC and Hybrid Courts/Tribunals are key components of prosecution initiatives:
- The International Criminal Court
- Established by the Rome Statute, the ICC is the first international criminal court that helps end impunity for perpetrators of severe crimes. 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.
- Hybrid Courts or Tribunals – 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. Examples include the Special Court for Sierra Leone
and Extraordinary chambers in the Courts of Cambodia.
2. 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. They may include financial payments, social services including healthcare or education, or symbolic compensation such as public apologies. 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.
3. Truth-seeking
– Truth-seeking encompasses any initiative that allows 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 are non-judicial commissions of inquiry that aim to discover and reveal past abuses by a government or non-state actors. About 40 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.
4. 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.
5. 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
. DDR programs assist ex-combatants in rejoining society as a part of peacemaking efforts.
- One example of institutional reform is the removal of court officials involved in crimes of the fallen Tunisian regime. Under Mr 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.
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.”
More recently, in a book section published in 2009, Professor 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 could cause some scholars and policymakers to wonder which of the objectives outlined above are most important to achieve, and even if 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 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.
Another way of assessing attempts at transitional justice is to say that decisionmakers 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), western 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 eastern German dissidents prevented them from doing so.
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.
The World Bank’s
2011 World Development Report on “Conflict, Security, and Development,” links transitional justice to security and development. Based on extensive research, the report explores how countries can avoid cycles of violence that impede development and cause untold suffering. It emphasizes the importance of transitional justice, arguing that 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.
In September 2011 The International Center on Transitional Justice published a report advocating the need to understand traditional transitional justice measures through a child-centered perspective. The report identifies children as a large demographic who are often excluded from traditional transitional justice measures, such as truth commissions and reparations. In order to correct this imbalance, a new child-centered perspective is needed to incorporate children into the larger scope of transitional justice.
Garrido v. Argentina, 1998 Inter-Am. Ct. H.R. (ser. C) No. 39, ¶ 72 (August 27, 1998)
Moiwana Cmty. v. Suriname, 2005 Inter-Am. Ct. H.R. (ser. C) No. 124, ¶ 100 (June 15, 2005)
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 democratisation discourse.
The nature and history of transitional justice
The origins of the transitional justice field can be traced back to the post-World War IIWorld War II
World War II, or the Second World War , was a global conflict lasting from 1939 to 1945, involving most of the world's nations—including all of the great powers—eventually forming two opposing military alliances: the Allies and the Axis...
period in Europe
Europe
Europe is, by convention, one of the world's seven continents. Comprising the westernmost peninsula of Eurasia, Europe is generally 'divided' from Asia to its east by the watershed divides of the Ural and Caucasus Mountains, the Ural River, the Caspian and Black Seas, and the waterways connecting...
with the establishment of the International Military Tribunal at Nuremberg
Nuremberg
Nuremberg[p] is a city in the German state of Bavaria, in the administrative region of Middle Franconia. Situated on the Pegnitz river and the Rhine–Main–Danube Canal, it is located about north of Munich and is Franconia's largest city. The population is 505,664...
and the various de-Nazification programs in Germany
Germany
Germany , officially the Federal Republic of Germany , is a federal parliamentary republic in Europe. The country consists of 16 states while the capital and largest city is Berlin. Germany covers an area of 357,021 km2 and has a largely temperate seasonal climate...
and the trials of Japan
Japan
Japan is an island nation in East Asia. Located in the Pacific Ocean, it lies to the east of the Sea of Japan, China, North Korea, South Korea and Russia, stretching from the Sea of Okhotsk in the north to the East China Sea and Taiwan in the south...
ese soldiers. To be precise, what became known as the ‘Nuremberg Trials
Nuremberg Trials
The Nuremberg Trials were a series of military tribunals, held by the victorious Allied forces of World War II, most notable for the prosecution of prominent members of the political, military, and economic leadership of the defeated Nazi Germany....
’, 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
Greece
Greece , officially the Hellenic Republic , and historically Hellas or the Republic of Greece in English, is a country in southeastern Europe....
(1975) and Argentina
Argentina
Argentina , officially the Argentine Republic , is the second largest country in South America by land area, after Brazil. It is constituted as a federation of 23 provinces and an autonomous city, Buenos Aires...
(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
Human rights
Human rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal and egalitarian . These rights may exist as natural rights or as legal rights, in both national...
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
Third Wave Democracy
In political science, Third Wave Democracy, also known as Democracy's Third Wave, refers to the third major surge of democracy in history. The term was coined by Samuel P...
, 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 commission
Truth commission
A truth commission or truth and reconciliation commission is a commission tasked with discovering and revealing past wrongdoing by a government , in the hope of resolving conflict left over from the past...
s. 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.
Another major institutional innovation is the appearance of the variety of lustration (vetting) programs in Central and Eastern Europe since the 1990s. While most countries pursued programs based on dismissals of compromised personnel, other countries implemented more inclusive methods that provided discredited personnel with a second chance in exchange for truth.
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...
Aims/Objectives
The primary objective of a transitional justice policy is to end the culture of impunityImpunity
Impunity means "exemption from punishment or loss or escape from fines". In the international law of human rights, it refers to the failure to bring perpetrators of human rights violations to justice and, as such, itself constitutes a denial of the victims' right to justice and redress...
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.
Strategies and forms of transitional justice
In order to be effective, transitional justice measure should be part of a holistic approach. There are five broad strategies or forms of transitional justice:1. Prosecutions
International criminal law
International criminal law is a body of international law designed to prohibit certain categories of conduct commonly viewed as serious atrocities and to make perpetrators of such conduct criminally accountable for their perpetration. Principally, it deals with genocide, war crimes, crimes against...
– The investigation and prosecution of serious international crimes, such as genocide
Genocide
Genocide is defined as "the deliberate and systematic destruction, in whole or in part, of an ethnic, racial, religious, or national group", though what constitutes enough of a "part" to qualify as genocide has been subject to much debate by legal scholars...
, crimes against humanity, and war crimes. It helps 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
Nuremberg Trials
The Nuremberg Trials were a series of military tribunals, held by the victorious Allied forces of World War II, most notable for the prosecution of prominent members of the political, military, and economic leadership of the defeated Nazi Germany....
, recent examples have included International Criminal Tribunal for Rwanda
International Criminal Tribunal for Rwanda
The International Criminal Tribunal for Rwanda is an international court established in November 1994 by the United Nations Security Council in Resolution 955 in order to judge people responsible for the Rwandan Genocide and other serious violations of international law in Rwanda, or by Rwandan...
and International Criminal Tribunal for the former Yugoslavia
International Criminal Tribunal for the former Yugoslavia
The International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, more commonly referred to as the International Criminal Tribunal for the former Yugoslavia or ICTY, is a...
, hybrid courts such as Special Court for Sierra Leone
Special Court for Sierra Leone
The Special Court for Sierra Leone is an independent judicial body set up to "try those who bear greatest responsibility" for the war crimes and crimes against humanity committed in Sierra Leone after 30 November 1996 during the Sierra Leone Civil War...
, Special Panels of the Dili District Court
Special Panels of the Dili District Court
The Special Panels of the Dili District Court was the hybrid international–East Timorese tribunal that was created in 2000 by the United Nations Transitional Administration in East Timor to try cases of "serious criminal offences" — including murder, rape, and torture — which took place in East...
, Extraordinary Chambers in the Courts of Cambodia
Extraordinary Chambers in the Courts of Cambodia
The Extraordinary Chambers in the Courts of Cambodia, commonly known as the "Khmer Rouge Tribunal", is a national court established pursuant to an agreement between the Royal Government of Cambodia and the United Nations to try senior members of the Khmer Rouge for serious violations of Cambodian...
, Court of Bosnia and Herzegovina
Court of Bosnia and Herzegovina
The Court of Bosnia and Herzegovina is a domestic court of the State of Bosnia and Herzegovina which includes international judges and prosecutors...
and in the last few years the establishment of the International Criminal Court
International Criminal Court
The International Criminal Court is a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression .It came into being on 1 July 2002—the date its founding treaty, the Rome Statute of the...
(ICC), assuming a universal jurisdiction
Universal jurisdiction
Universal jurisdiction or universality principle is a principle in public international law whereby states claim criminal jurisdiction over persons whose alleged crimes were committed outside the boundaries of the prosecuting state, regardless of nationality, country of residence, or any other...
. The ICC and Hybrid Courts/Tribunals are key components of prosecution initiatives:
- The International Criminal Court
International Criminal Court
The International Criminal Court is a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression .It came into being on 1 July 2002—the date its founding treaty, the Rome Statute of the...
- Established by the Rome Statute, the ICC is the first international criminal court that helps end impunity for perpetrators of severe crimes. 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.
- Hybrid Courts or Tribunals – 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. Examples include the Special Court for Sierra Leone
Special Court for Sierra Leone
The Special Court for Sierra Leone is an independent judicial body set up to "try those who bear greatest responsibility" for the war crimes and crimes against humanity committed in Sierra Leone after 30 November 1996 during the Sierra Leone Civil War...
and Extraordinary chambers in the Courts of Cambodia.
2. Reparations
Reparations (transitional justice)
Reparations Though difficult to define, reparations are broadly understood as compensation given for an abuse or injury. The colloquial meaning of reparations has changed substantively over the last century...
– 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. They may include financial payments, social services including healthcare or education, or symbolic compensation such as public apologies. 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.
3. Truth-seeking
Truth-seeking
Truth-seeking processes allow societies to examine and come to grips with past crimes and atrocities and prevent their future repetition. Truth-seeking often occurs in societies emerging from a period of prolonged conflict or authoritarian rule...
– Truth-seeking encompasses any initiative that allows 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
Human rights
Human rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal and egalitarian . These rights may exist as natural rights or as legal rights, in both national...
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 are non-judicial commissions of inquiry that aim to discover and reveal past abuses by a government or non-state actors. About 40 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.
4. Memory and Memorials
Memorialization
Memorialization generally refers to the process of preserving memories of people or events. It can be a form of address or petition, or a ceremony of remembrance.-Memorialization as a Human Right:...
– 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
Uganda
Uganda , officially the Republic of Uganda, is a landlocked country in East Africa. Uganda is also known as the "Pearl of Africa". It is bordered on the east by Kenya, on the north by South Sudan, on the west by the Democratic Republic of the Congo, on the southwest by Rwanda, and on the south by...
, created in response to the war conducted by and against the Lord’s Resistance Army there.
5. Institutional Reform
Security sector reform
Security Sector Reform is a concept to reform or rebuild a state's security sector that emerged first in the 1990s in Eastern Europe. It starts where a dysfunctional security sector is unable to provide security to the state and its people effectively and under democratic principles. Even worse,...
– 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
Vetting
Vetting is a process of examination and evaluation, generally referring to performing a background check on someone before offering him or her employment, conferring an award, etc...
, lustration
Lustration
Lustration is the government process regulating the participation of former communists, especially informants of the communist secret police, in the successor political appointee positions or in civil service positions in the period after the fall of the various European Communist states in 1989 –...
and Disarmament, Demobilization and Reintegration
Disarmament, Demobilization and Reintegration
Disarmament, Demobilization and Reintegration is an applied strategy for executing successful peacekeeping operations, and is generally the strategy employed by all UN Peacekeeping Operations...
(DDR). Vetting is the process of eliminating corrupt or abusive officials from public service employment. For instance, in Afghanistan
Afghanistan
Afghanistan , officially the Islamic Republic of Afghanistan, is a landlocked country located in the centre of Asia, forming South Asia, Central Asia and the Middle East. With a population of about 29 million, it has an area of , making it the 42nd most populous and 41st largest nation in the world...
, 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
Cold War
The Cold War was the continuing state from roughly 1946 to 1991 of political conflict, military tension, proxy wars, and economic competition between the Communist World—primarily the Soviet Union and its satellite states and allies—and the powers of the Western world, primarily the United States...
. DDR programs assist ex-combatants in rejoining society as a part of peacemaking efforts.
- One example of institutional reform is the removal of court officials involved in crimes of the fallen Tunisian regime. Under Mr 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 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.”
More recently, in a book section published in 2009, Professor Lyal S. Sunga
Lyal S. Sunga
Professor Lyal S. Sunga is an internationally renowned specialist on international human rights law, international humanitarian law and international criminal law.-Career:...
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 could cause some scholars and policymakers to wonder which of the objectives outlined above are most important to achieve, and even if 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 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.
Another way of assessing attempts at transitional justice is to say that decisionmakers 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), western 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 eastern German dissidents prevented them from doing so.
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, 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 (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
United Nations
The United Nations is an international organization whose stated aims are facilitating cooperation in international law, international security, economic development, social progress, human rights, and achievement of world peace...
(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.
The World Bank’s
World Bank
The World Bank is an international financial institution that provides loans to developing countries for capital programmes.The World Bank's official goal is the reduction of poverty...
2011 World Development Report on “Conflict, Security, and Development,” links transitional justice to security and development. Based on extensive research, the report explores how countries can avoid cycles of violence that impede development and cause untold suffering. It emphasizes the importance of transitional justice, arguing that 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.
In September 2011 The International Center on Transitional Justice published a report advocating the need to understand traditional transitional justice measures through a child-centered perspective. The report identifies children as a large demographic who are often excluded from traditional transitional justice measures, such as truth commissions and reparations. In order to correct this imbalance, a new child-centered perspective is needed to incorporate children into the larger scope of transitional justice.
Major Cases
Loayza-Tamayo v. Peru, 1998 Inter-Am. Ct. H.R. (ser. C) No. 42 (November 27, 1998)Garrido v. Argentina, 1998 Inter-Am. Ct. H.R. (ser. C) No. 39, ¶ 72 (August 27, 1998)
Moiwana Cmty. v. Suriname, 2005 Inter-Am. Ct. H.R. (ser. C) No. 124, ¶ 100 (June 15, 2005)
See also
- Truth-seekingTruth-seekingTruth-seeking processes allow societies to examine and come to grips with past crimes and atrocities and prevent their future repetition. Truth-seeking often occurs in societies emerging from a period of prolonged conflict or authoritarian rule...
- VergangenheitsbewältigungVergangenheitsbewältigungVergangenheitsbewältigung is a composite German word that describes processes of dealing with the past , which is perhaps best rendered in English as "struggle to come to terms with the past"...
- International Center for Transitional JusticeInternational Center for Transitional JusticeThe International Center for Transitional Justice was founded in 2001 as a non-profit organization dedicated to pursuing accountability for mass atrocity and human rights abuse through transitional justice mechanisms.-Mission statement:...
- MemorializationMemorializationMemorialization generally refers to the process of preserving memories of people or events. It can be a form of address or petition, or a ceremony of remembrance.-Memorialization as a Human Right:...
External links
- United Nations Rule of Law: Transitional Justice, on the relationship between transitional justice, the rule of lawRule of lawThe rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...
and the United NationsUnited NationsThe United Nations is an international organization whose stated aims are facilitating cooperation in international law, international security, economic development, social progress, human rights, and achievement of world peace...
. - For a comprehensive bibliography on transitional justice with over 2,300 sources see University of Wisconsin's Transitional Justice Data Base Project at: http://sites.google.com/site/transitionaljusticedatabase/transitional-justice-bibliography
- Further resources on transitional justice can be found at the International Center for Transitional Justice (ICTJ) web page.
- Further resources on transitional justice can be found on the Governance and Social Development Resource Centre's Topic guide on transitional justice
- Podcast of an Oxford lecture for the Foundation for Law, Justice and Society by Professor Mark Drumbl, Director of the Transnational Law Institute, Washington and Lee University Justice After Atrocity: A Cosmopolitan Pluralist Approach
- Video of a July 2010 presesntation by David Tolbert, President of the International Center for Transitional Justice, and other experts at the Woodrow Wilson International Center for Scholars, Washington DC,Transitional Justice in Post-Conflict Societies: What Works Best?