The term “transitional justice” first came about as a result of the post-Cold War democratization movements. However, the word “transition” has since taken on a wider definition than just a change from a totalitarian system to a democratic one. It now includes post-conflict situations that require resolutions and establishment of the rule of law. Examples include the aftermath of the Yugoslavian wars and the Rwandan genocide in the 1990s.
The United Nations defines transitional justice as:
the full range of processes and mechanisms associated with a society’s attempt to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation.
The International Center for Transitional Justice (ICTJ) specifically applies the term to countries “emerging from periods of conflict and repression”, necessary to address human rights violations “so numerous and so serious” that they cannot be accounted for by the ordinary justice system.
Transitional justice is often associated with looking “backwards” in time, as it focusses on accountability and restoration following a conflict or authoritarian rule, rather than mapping a detailed agenda for the future. However, addressing the past has political implications for the future, because it influences public opinion of past and present regimes. Institutional reforms are also used to prevent repetition of the wrongs experienced in the past.
Transitional justice might be best understood as a toolkit, comprised of diverse mechanisms which can be used to achieve certain aims, according to the political, geographical and social context. Since the turn of the twenty-first century, an increase in persistent conflict has meant the expansion of transitional justice in its scope and relevance. The establishment of the international criminal court in 1998 has added to the range of justice-seeking measures from the local to the international levels.
How did transitional justice begin?
The term “transitional justice” first appeared in the 1980s via scholars analyzing the democratization movements in Latin America and Eastern Europe. Here the discussion was around how new leaders should approach massive violence perpetrated by their predecessors.
Criminal prosecutions, truth-telling, and legislative measures emerged as possible directions for transitioning societies; however the way these measures were applied depended on the context.
Argentina and Chile established some of the earliest truth commissions, in response to military protests against prosecuting the preceding leadership. The commissions issued reports on human rights violations of the past regimes. On the other hand, Eastern European nations passed purge laws, held public trials, and disclosed secret police files produced during the Soviet era. Subsequently, ad hoc tribunals such as the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda solidified grounds for international jurisdiction in transitional justice, leading to the creation of the International Criminal Court (ICC) in 1998. As the world’s first permanent international criminal court, the ICC may intervene judicially when national courts are unwilling to or incapable of carrying out investigation on suspected international crimes committed within their boundaries.
What are the key mechanisms of transitional justice?
Transitional justice mechanisms should be applied in accordance with the needs of the country or society concerned. The following is a list of the mechanisms that are most commonly applied in transitional justice processes, along with some key case studies.
Criminal prosecutions demand accountability for those responsible for human rights violations by bringing them to court to face a criminal justice process. Prosecution as a justice-seeking method during or after a political transition or the end of a war occurred even before the post-Cold War era, as in the case of the post-WWII Nuremburg and Tokyo Tribunals. Defendants may be tried in international, hybrid or local courts depending on the availability, capacity and jurisdiction of such institutions.
It is almost impossible for the effectiveness of criminal prosecution as a method for seeking post-conflict justice to meet the expectations of all those involved. Criminal justice is often undermined by the significant amount of time, energy and resources required to investigate systematic violence. Striking the right balance between upholding procedural justice for the defendant and ensuring a satisfactory outcome for victims adds additional challenges to the court’s legitimacy and effectiveness.
Case study: Former Yugoslavia
The Socialist Federal Republic of Yugoslavia initially consisted of six republics – Serbia, Macedonia, Bosnia and Herzegovina, Croatia, Montenegro, Slovenia – and the two autonomous regions of Kosovo and Vojvodina. Most of the republics within the federation were highly diverse in their ethnic and religious compositions. These factors led to bloody conflict in the 1990s when member republics began to pursue independence.
Particularly brutal confrontations occurred in Croatia, Bosnia and Herzegovina, and Kosovo. This was partly due to the ethnic Serb minorities living in these states opposing their independence from the union.
In Croatia, the Yugoslav People’s Army (JNA) and Serbia led a vicious campaign of ethnic cleansing to claim Serbian authority over the newly independent Croatian territory. The Croatian army eventually reclaimed control. In Bosnia and Herzegovina, a deadly three-way battle ensued when the Bosnian Serbs, Croats, and Muslims each declared independence from the Bosnian government. From 1991 until the 1995 Dayton peace deal, countless episodes of rape, genocide and imprisonment occurred on all sides. In Kosovo, Serbian forces violently suppressed ethnic Albanians’ calls for independence by shelling villages and targeting civilians. More than 75,000 Albanians were displaced as refugees during the conflict which lasted until 1999. Even today, the final political status of Kosovo remains unclear.
The International Criminal Tribunal for the Former Yugoslavia (ICTY) was established in 1993 by the United Nations just as the Bosnian conflict was escalating. However, the ICTY was also criticized for its failings. Inadequate support from a national court system made prosecution of lower-level officials difficult. Also, the lack of officially preserved records necessitated heavy reliance on witness testimonies, which were time-consuming to collect and potentially inadmissible as evidence. Trials took an average of three and a half years from arrest to appeal; key figures such as Slobodan Milosevic passed away before the verdict was released. Although the ICTY managed to indict 161 individuals, the ICTY’s legitimacy within the Balkans has been questioned. Both Serbs and Croats accused the Court of advancing its own political agenda and discriminating against certain ethnic groups. Bosnian Muslims remain unsatisfied by the penalties handed down by the court, which they viewed as too light. Only four defendants have been sentenced to life imprisonment. With its inability to bring a lasting sense of reconciliation, the ICTY illustrates the limits of criminal prosecutions on their own as a method of holistic justice in certain communities.
Despite its failings, the ICTY arguably contributed significantly to the establishment of the first permanent international criminal court (the ICC), by providing important lessons for how such an institution should be designed and run.
“All that a truth commission can achieve is to reduce the number of lies that can be circulated unchallenged in public discourse. In Argentina, its work has made it impossible to claim, for example, that the military did not throw half-dead victims in the sea from helicopters. In Chile, it is no longer permissible to assert in public that the Pinochet regime did not dispatch thousands of entirely innocent people.”
As was the case in the former Yugoslavia, criminal proceedings can sometimes aggravate a confrontational atmosphere between different sides of a conflict and present challenges to reconciliation. Truth commissions offer an alternative that fosters acknowledgement of guilt and provides psychological catharsis to victims without resorting to judicial measures. There is typically no punishment handed down to perpetrators, as there it is not a criminal justice proceeding. Instead, perpetrators and victims are mutual participants in the process of recounting and acknowledging past events and harms. A truth commission typically produces a detailed report at the end of its investigation.
Case study: South Africa
In South Africa, systematic racial segregation existed under apartheid from 1948 to 1991. Apartheid was initially proposed by the National Party to maintain white dominance over the nation. It not only outlawed interracial contact, but also legalized discriminatory treatment based on race. Under international political pressure, the National Party entered into negotiations with the African National Congress (ANC) in the 1980s to dismantle apartheid policies. This resulted in the National Peace Accord of 1991.
Under this peace agreement, the ANC could not demand extensive criminal prosecutions. Instead, the Truth and Reconciliation Commission (TRC) of South Africa was established. The TRC exercised quasi-judicial power to issue amnesties to perpetrators. It invited all parties present during the apartheid era to cooperate in documenting the truth of what happened during those years.
TRCs can provide an opportunity for victims to tell their stories and directly participate in the process of producing historical record. However, this benefit may be undermined by the perceived injustice of perpetrators being pardoned for serious crimes without due punishment. The South African TRC’s narrow definitions of ‘victims’ and ‘perpetrators’ were criticized for ignoring the unique nature of the apartheid system. It was also criticized for its inability to fully investigate each individual case with limited resources, which sometimes led to victim disillusionment towards the TRC’s role in bringing meaningful justice and reconciliation. The TRC, however, did offer the possibility of being granted amnesty “in exchange for truth”. This provided a valuable incentive for perpetrators to provide genuine accounts. At the time of the publication of the TRC’s concluding report, only 150 out of 7000 amnesty applications had been approved, meaning the remaining perpetrators may potentially stand for future trial. The TRC reflects an emphasis on ‘restorative’ justice over ‘retributive’ justice; it strives to fulfill “the need for understanding but not for vengeance, a need for reparation but not retaliation, a need for ubuntu but not for victimization.”
Memorialization is ‘an umbrella concept encompassing a range of processes to remember and commemorate’ past events. Memorialization serves a range of educational, political, symbolic, and reconciliatory functions in a post-conflict society, and may take a variety of physical and symbolic forms. Examples of its physical forms include monuments, museums, and preserved locations of mass killings. Symbolic memorialization may involve regular vigils and official anniversaries. Memorialization initiatives knit other transitional justice mechanisms together by both extending the impact of judicial or non-judicial investigations into the past, while supporting efforts to educate the younger generation about the past. However, as memorialization is a politically sensitive process, initiatives may either foster reconciliation or further division depending on the perceived political agenda behind it.
Case example: Nepal
Generations of oppression under a feudalistic Hindu regime drove various marginalized communities into a Communist (Maoist) rebellion in 1996 that lasted until 2006, when the monarchy was abolished in a Comprehensive Peace Agreement (CPA). During the ten-year insurgency, both the Maoist and state forces committed violence, in violation of international humanitarian law. The conflict resulted in more than 17,800 deaths and 1,530 disappearances alongside torture, injury and displacement.
Memorialization initiatives have not been carried out at the national level due to a political divide on whether to portray the conflict as the ‘People’s War’ or ‘Maoist terrorism’. However, at the community level, Maoist efforts to commemorate the conflict have been evident in the ‘martyrs’ gates’, schools named after those who died in the conflict, and memoirs of Maoist veterans. The Peace Museum in Kathmandu houses photograph exhibitions of the conflict and tours around the country to maximize its audience despite Nepal’s geographical challenges.
Ongoing political and geographical divisions may be tackled by increased engagement between victims, combatants and witnesses from all sides. The circulation of competing narratives can encourage acknowledgement of the complex nature of the conflict and may serve as the starting point for dialogue between different castes, ethnicities and rural/urban divides. Open discussion on the root causes and effects of the conflict may take place via school curricula and various technological platforms, while continuing to empower civil society organizations and victim’s groups to carry out memorialization work.
Reparations and compensation
Reparations take a victim-focused approach by implementing direct mechanisms to help victims and their families ‘repair the material and moral damages of past abuse’. Reparation methods not only include financial compensation, but also the reinstatement of civil and political rights, issuing of official apologies, or granting of access to land, health care, and education.
Case example: Chile
The period from 1973 to 1989 in Chile saw widespread deaths and disappearances under the military dictatorship of Augustus Pinochet. Following the recommendation of the National Commission for Truth and Reconciliation, a law was enacted by the legislature in 1992 to establish a reparations system. This included the National Corporation for Reparation and Reconciliation under the Ministry of the Interior, a temporary organ set up to provide compensation for the victims’ families. It included monthly pensions, free health care services, educational benefits, and exemption from mandatory military service. Additionally, the newly-elected President Patricio Aylwin issued a formal apology and prompted the military to admit its role in the violence as well.
The scope of ‘victims’ covered under the scheme is limited to those who actually died during the oppression, as the National Commission did not investigate on those who survived the violence, torture, or detainment. Moreover, a 1978 amnesty decree has created difficulty for those survivors to even bring a civil suit against the state, which may have granted them remedies greater than those available under the reparation scheme. However, the Chilean reparation scheme is still lauded as a pioneering model for its victim-focused approach and as a practical initiative for the families of the deceased.
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Teitel, Ruti. “Transitional Justice in a New Era.” Fordham International Law Journal 26, no. 4 (2002): 905.
Last Updated: 26 April 2018
Research by Irene Lim, Editing by Sarah A. Son