Transitional justice refers to the ways countries emerging from periods of conflict and repression address large scale or systematic human rights violations so numerous and so serious that the normal justice system will not be able to provide an adequate response.
Transitional justice is rooted in accountability and redress for victims. It recognizes their dignity as citizens and as human beings. Ignoring massive abuses is an easy way out but it destroys the values on which any decent society can be built. Transitional justice asks the most difficult questions imaginable about law and politics. By putting victims and their dignity first it signals the way forward for a renewed commitment to make sure ordinary citizens are safe in their own countries – safe from the abuses of their own authorities and effectively protected from violations by others.
Mass atrocities and systematic abuses devastate societies and their legacy is likely to make conditions of the country fragile: political and legal institutions like parliament, the judiciary, the police and the prosecution service may be weak, unstable, politicized and under-resourced. The violations themselves will have severely damaged whatever confidence might have existed in the state to guarantee the rights and safety of citizens. And communities will often have been ripped asunder in the process and social or political organizations greatly weakened.
Finding legitimate responses to massive violations under these real constraints of scale and societal fragility is what defines transitional justice and distinguishes it from human rights promotion and defense in general.
A woman shares her testimony at Tunisia’s Truth and Dignity Commission public hearing. (IVD)
The aims of transitional justice will vary depending on the context but these features are constant: the recognition of the dignity of individuals; the redress and acknowledgment of violations; and the aim to prevent them happening again.
Complementary aims may include:
"The aims of transitional justice will vary depending on the context but these features are constant: the recognition of the dignity of individuals; the redress and acknowledgment of violations; and the aim to prevent them happening again."
Because of the numbers of violations and context of societal fragility not every violation will be dealt with as it might be in normal times. Traditionally a great deal of emphasis has been put on four types of “approaches”:
These different approaches should not be seen as alternatives for one another. For example, truth commissions are not a substitute for prosecutions. They try do something different from prosecutions in offering a much broader level of acknowledgment and limiting the culture of denial. Likewise, reform of constitutions, laws and institutions are not an alternative for other measures but aim directly at restoring confidence and preventing the recurrence of violations.
It is also important to think innovatively and creatively about these apporaches and about other possibilities.
"Transitional justice is rooted in accountability and redress for victims. It recognizes their dignity as citizens and as human beings."
For example, truth commissions and fact-finding commissions of inquiry have looked into issues of endemic corruption of prior regimes in a way that did not occur in similar bodies twenty years ago.
In some circumstances it is possible to take significant steps through commissions and law reform initiatives to address deeper issues of marginalization. For example, law reform initiatives in Sierra Leone significantly improved the legal status of women in the early 2000s. An imaginative attempt in south Yemen to address massive land and property expropriation was cut short due to a resurgence in violence but indicates that even complex land issues can sometimes be addressed in transitional justice contexts.
"The political, social and legal conditions in a country will dictate what kinds of things can be done when."
Not only is it important to think creatively and innovatively about the established ways of addressing massive violations of human rights, there are also important issues to bear in mind that help increase the chances of meeting the aims of transitional justice:
Analyzing the context: The political, social and legal conditions in a country will dictate what kinds of things can be done when. It is important to take the time to carry out the necessary analysis, avoid “check-list”, or template approaches and ensure that what is done responds to an informed understanding of the conditions in the country.
Getting interventions right: Because of the constraints of scale, fragility it will sometimes be prudent not to try to do too many things at the same time. Clearly it will be in the interests of some to seek to use these factors as a way to delay justice measures forever. The “art” of transitional justice is balancing the pursuit of justice in the face of resistance and the risk linked to fragility.
The different ways to address violations and their causes are all complex. They demand time and resources that will be in short supply in many countries. There is no firm guidance that can be given about what should always be done when. What matters is that justice measures are developed in conditions that will make their success more likely, whether that is immediate or over a longer period.
Participation: The opportunity to address massive human rights violations signals a potentially important part in the life of any society. It brings the possibility of openness, and new attitudes, an opportunity to engage sectors of the society, including women and others who have been excluded. The value and sustainability of justice efforts in this context depends significantly on the participation of people beyond political and economic power structures. It means getting beyond elite compacts and vested interests; it requires that victims and others from marginalized groups take part in the determination of how best to redress massive human rights failures to make the future safer for them.
Innovation: While some aspects of transitional justice might be well established, sound analysis can also lead to thoughtful innovation. It may be that in some circumstances the most meaningful ways of redressing massive human rights violations do not fit with conventional concepts of accountability. For example, in conditions of massive forced displacement, perhaps ensuring safe returns, restoring property, and identifying the fate of the missing should be the initial focus of a human rights approach to dealing with the atrocities and destruction that have occurred. These things might take precedence over the more conventional issues of criminal justice or fact-finding and truth-seeking efforts, but we should be prepared to conceive of such efforts as transitional justice efforts.
Contextual analysis, getting interventions right for that context, promoting participation and innovation are the elements that underpin the idea of a context-driven approach to transitional justice.
Colombian activists at a peace protest. (ICTJ)
There can sometimes be unnecessary confusion about whether a country is in a period of “transition” or not but practically speaking it is not that complicated. The question is whether an opportunity has emerged to address massive violations, even if it is a limited opportunity.
These kinds of opportunities have come up most frequently in and around peace processes seeking to end internal armed conflicts: parties to negotiations and others involved in the negotiations may seek to incorporate justice issues as part the agreements to end the conflict. Sometimes these reflect the demands of civil society and victims’ groups working on justice issues. Examples include Colombia, Guatemala, El Salvador, Sierra Leone, Democratic Republic of Congo, Liberia, South Sudan, the Philippines, Nepal, and other countries. In some of these cases the armed conflict has taken place alongside violations of a deeply repressive regime.
New governments replacing repressive regimes may also introduce and support different kinds of justice policies for mass atrocities. Examples include Argentina in the 1980s, Chile and South Africa in the 1990s, Peru and Tunisia more recently.
Other situations that fit less easily into clear categories include Kenya and Cote D’Ivoire: both saw extensive post-electoral violence costing many lives and displacing huge parts of the populations.
All the difference! Efforts to address massive violations will often have to face up to enormous obstacles. Parties with something to fear from justice may still control some or most of the levers of power. The distribution of power will determine much of what can be done. Transitional justice almost always unfolds in deeply polarized societies. Weak institutions may need considerable time and investment before they are able to even begin addressing systematic abuses. Civil society and victims’ groups may be very articulate and organized in some places but disparate and weak in others, with less capacity to put pressure on governments to act or to engage in meaningful ways. The media may lack independence or be polarized, defending specific and divisive narratives. The international community may have a great deal of interest in the country or very little interest. Support and implementation of justice efforts will depend on all of these things and more.
"The distribution of power will determine much of what can be done."
In the 1990s various American academics coined the term to describe the different ways that countries had approached the problems of new regimes coming to power faced with massive violations by their predecessors.
It was simply a descriptive term. It did not suggest that there was a standard approach or even common principles, as can be seen from the huge variety of ways different countries did or did not try to address violations.
The term took hold, especially in the USA, due to the great interest in the way former Soviet Bloc countries were dealing with the legacy of totalitarianism.
The term originally described different approaches in different places, not a coherent notion or practice. In the 1990s and 2000s approaches and developed, based on recognition of human rights principles and the insistence that violated rights could not be ignored. Associated with this was the idea of particular kinds of mechanisms, such as prosecutions, fact-finding (or “truth seeking”) inquiries, reparations programs and reform initiatives as the most effective means to give effect to those human rights principles.
Where are we now? Best understood, the practice of transitional justice today is the attempt to confront impunity, seek effective redress and prevent recurrence not in the routine application of normative standards, but in the careful and conscious appreciation of the contexts where it is to be done.
It is not the way to fix everything that is wrong with society. The long- term social and political struggles for justice and equal opportunities might be assisted by measure of transitional justice but not solved by it.
It is not a particular type of justice like restorative justice, distributive justice or retributive justice. It is the application of a human rights policy in particular circumstances.
It is not “soft” justice. It is the attempt to provide the most meaningful justice possible in the political conditions at the time. If it is simply an effort to evade meaningful measures of justice it is sophisticated impunity.