Transitional justice is a process which responds to human rights violations through judicial redress, political reforms and cultural healing efforts and other measures in order to prevent the recurrence of human rights abuse in a region or country. Transitional justice consists of judicial and non-judicial measures implemented in order to redress legacies of human rights abuses and foster reconciliation. Such mechanisms "include criminal prosecutions, truth commissions, reparations programs, and various kinds of institutional reforms" as well as memorials, apologies, and various art forms. Transitional justice is instituted at a point of political transition classically from war to positive peace, or more broadly from violence and repression to societal stability (though some times it is done years later) and it is informed by a society's desire to rebuild social trust, reestablish what is right from what is wrong, repair a fractured justice system, and build a democratic system of governance. Given different contexts and implementation the ability to achieve these outcomes varies. The core value of transitional justice is the very notion of justice—which does not necessarily mean criminal justice. This notion and the political transformation, such as regime change or transition from conflict are thus linked to a more peaceful, certain, and democratic future.
Transitional justice in the modern era has received greater attention from both academics and policymakers. It is also widely discussed in political and legal circles, especially in transitional societies. During political transitions from authoritarian or dictatorial regimes or from civil conflicts to 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 increase the probability of a transition into a more democratic, just, peaceful future.
History 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.Peccia, T., Meda, R., & Forte, M. C. (2019). La recherche d’une paix durable à travers la justice transitionnelle et le rôle de la mémoire: Un regard sur la Tunisie contemporaine. Dilemas-Revista de Estudos de Conflito e Controle Social, 12(1), 195–209.
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.
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.
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". 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."
Definitions According to the ICTJ, the term "transitional justice" was coined by various American academics in the 1990s to "describe the different ways that countries had approached the problems of new regimes coming to power faced with massive violations by their predecessors."
The ICTJ says that 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." Measures used include criminal prosecutions, truth commissions, reparations and restitution programs, exhumation of mass graves, apologies, amnesty, memorials, film, literature, scientific research, rewriting school textbooks, lustration and vetting, and various kinds of institutional reforms to redress human rights abuses.
Transitional justice has, however, undergone conceptual changes since it was first coined. The 'transitional' prefix used to indicate a form of exceptionalism whereby justice processes support a political transition. Justice processes could violate or compromise the rule of law, if they safeguarded a transition to democracy. Due to the field's normalisation, justice came to mean ordinary justice in exceptional circumstances. As the UN High Commissioner for Human Rights explained in 2009, transitional justice is 'not a particular conception of justice, such as distributive or retributive justice' but is 'rather a technical approach to exceptional challenges'.
Objectives The primary objective of a transitional justice policy is to end the culture of impunity and establish the rule of law in a context of democratic governance. Transitional justice has roots in human rights protection and imputes certain humanitarian and justice 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; Build social trust; Offer dignity to victims and their families; 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; Strengthen, remake, and reform state institutions; Security Sector Reform; Taking steps towards the establishment of positive peace Legitimize current state and in some cases de-legitimize the past state; Fostering individual and national reconciliation; Recognize victims as equal citizens; Acknowledging the past accurately; Help transition to a more just, equitable, peaceful, and democratic society.
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 Transitional Justice is a collection of processes used with the intention to create positive peace through methods of acknowledgement, restoration, criminal justice, and amnesties. 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. Investigations to seek the truth and fact-finding processes into human rights violations by non-judicial bodies include Truth Commissions. 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." In some cases there are efforts to memorialization of the abuses. Affirmative action policies are sometimes used to facilitate transition. Gender justice ensures women have equal access to the mechanisms.
Mechanisms