About ‘Transitional Justice’

COMMENTARY – Many different recourses to deal with systemic injustices exist: traditional prosecution of criminal conduct, refusal to prosecute, or resorting to so-called ‘transitional justice’. [1] Research shows an important increase in the judicialization of world politics through the use of transitional justice, for instance demonstrated in a study led by Kathryn Sikkink and Carrie Booth Walling, who found that 34 countries out of the 192 surveyed had truth commissions in place, and 50 had held at least one transitional human rights trial. [2] Nonetheless, the concept of transitional justice remains somewhat obscure to world citizens, who are unclear on the functioning of this tool to combat human rights violations and seek justice. This article therefore aims to spell out the main features of this alternative to traditional justice, and debunk the principal challenges it comes up against.     
English

Human Rights Activism through Transitional Justice - source: Alliance for Peacebuilding

What is transitional justice and what does it aim to do?

The concept of transitional justice is defined by the United Nations (UN), the unofficial broker of transitional processes, as “the full range of (…) 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.” [3] It is thus understood to be a tool to strengthen the rule of law and rebuild social trust in former conflict areas experiencing a political transition, through both judicial and non-judicial measures implemented to eliminate human rights violations. [4] In other words, transitional justice places a strong focus on victims and aims to ensure they receive justice in a manner adapted to their needs, to successfully turn the page on past wrongdoings and make way for a politically, economically and socially stable and peaceful future.

Originally, transitional justice arose from US efforts to prosecute Nazi officials in the wake of World War II. [5] These war crime trials, held in Nuremberg between 1945 and 1949, served the purpose of punishing specific individuals rather than establishing collective sanctions that would risk instigating further conflict. As US Secretary of War Henry Stimson argued at the outset of these trials: “punishment is for the purpose of prevention and not for vengeance.” [6] These proceedings therefore paved the way for transitional justice, which gained momentum throughout the late 20th century, and was adopted by the UN in the 1990s, with the ad hoc International Criminal Tribunal for the former Yugoslavia (ICTY) in 1993, the ad hoc International Criminal Tribunal for Rwanda (ICTR) in 1995, and later the establishment, by virtue of the Rome treaty in 1998, of the permanent International Criminal Court (ICC) in The Hague. [7] It was later taken up by countries not only to punish war crimes, but more generally as a means of democratization and acknowledgment of past governmental misdeeds.

The guiding principles of transitional justice are clearly outlined in the UN report on the subject, and highlight the need to: support compliance with international norms, take account of the political context and base assistance for transitional justice on this context, strengthen national capacity to carry out community-wide transitional justice processes, strive to ensure women’s and children’s rights, secure the centrality of victims in the design and  implementation of transitional justice mechanisms, and encourage a comprehensive approach that takes account of the root causes of conflict and repressive rule. [8]

In broader terms, the main aims of transitional justice are to acknowledge human rights violations, recognize victims’ dignity, and prevent further conflict by ending the culture of impunity. [9]  

Today, transitional justice is attracting more and more attention from legal, political or academic fields, and as previously established, has expanded its influence within national and international judicial systems. There exists five different transitional justice mechanisms, including trials (or criminal persecutions), truth commissions (truth seeking/fact-finding non-judicial bodies whose role is to examine the causes and impacts of specific events), amnesties (or pardons for political offenses), reparations (individual, collective, material or symbolic), and lustration policies (screening and removal of officials from public positions in the new democratic system as a form of administrative justice). [10] These different tools are said to be complementary, and conjointly offer more holistic understandings of past conflicts.

Past and current challenges

Nonetheless, the war crime tribunals - fundamental to the creation of transitional justice -, have over the years been the subject of criticism and controversy.  

To start with, many have claimed they were based on a principle of ‘victor’s justice’, suggesting these post-war tribunals were a charade of winners punishing losers. [11] Some have even argued that if the Allies had lost World War II, their political and military leaders would certainly have been put on trial for the bombing of Japanese and German cities. As Gary Bass explains in his book Stay the hand of vengeance: the politics of war crimes tribunals, “it is victory that makes justice possible but the fairness of the process is what makes it justice”. [12]

Another major critique centers around ‘retroactivity’, which describes the practice of holding defendants responsible for acts that were not prohibited at the time they were committed. This constituted the defense of many Nazi officials in the post war trials, who based their argument on the principle of Nullum Crimen, Nulla Poena Sine Lege (no crime, no punishment without a legal prohibition). [13]  

The last criticism made against war crime tribunals focuses on the notion of ‘selectivity’, which contends that these trials often failed to incriminate all those involved, as lower level officials were easier to prosecute than higher ranking individuals with no ‘actual’ blood on their hands. [14]   

Research in the legal field has pointed to the fact that these challenges involving transitional justice have persisted throughout the years.

First of all, concerns about practical difficulties have been raised. Identifying victims and gathering testimonies has proven to be a complex task, as many witnesses have often been killed, and the remaining find the process of remembering too painful, or provide subjective and flawed testimonies. This is accurately illustrated in Priscilla Hayner’s book Unspeakable Truths: Transitional Justice and the Challenge of Truth Commissions, in which a government official who lost 17 members of his immediate family in the Rwandan genocide is quoted saying “It is only by forgetting that we are able to go on”. [15] Furthermore, setting up a functioning bureaucracy and finding the financial means for compensations have also been challenges transitional justice has faced. Pertaining to bureaucracy, countries have often made the error of attempting to transfer another state’s bureaucratic model of transitional justice to their own conflict, as represented by Rwanda and their heavy drawing on Chile’s compensation program. The issue at hand is the very different context of these two states: Chile benefited from a healthy economy and the Truth Commission put in place had a narrow list of eligible beneficiaries, unlike Rwanda, whose list was endless and whose economy was struggling. [16] This example therefore points to the need for extensive research in policy making, which is too often neglected, rendering transitional justice maladjusted and unable to meet victims’ needs because of bureaucratic and financial incoherencies.     

A second important challenge that has been noticed pertains to theoretical difficulties. Indeed, many contradictions within the goals of transitional justice themselves have been noted. For instance, lustration is marked by a paradox between two foundational principles of transitional justice: serving public trust and retributive justice, all the while ensuring a given country’s successful transition, which can easily be unsettled by the undoing of major organs of government. [17] A notable example of this paradox is present in the case of Czechoslovakia, a country that did not have the luxury of severely purging its civil service during its transition phase, and instead had to prioritize stability. [18] This thus explains why courts rarely prosecute those in power, and why the blame is oftentimes placed on former, fallen authoritarian actors in post-authoritarian settings, while the past crimes of their newly in-power opposition are disregarded. [19] In this sense, the ‘victor’s justice’ argument applies here, demonstrating that the phenomenon is difficult to eliminate because of the previously mentioned paradox between the very foundations of transitional justice.

Another theoretical dilemma is present in the contradictions between transitional and traditional justice. By way of illustration, Lyal S. Sunga, a specialist on international human rights law, international humanitarian law and international criminal law, highlights the conflicts between truth commissions and criminal prosecution, especially in the case of amnesties. Indeed, he questions their legality and argues that they must conform to legal norms, in an attempt to limit the overstepping of international law on domestic law. [20]   

Finally, transitional justice is complicated by a moral obstacle, known as the ‘peace versus justice’ dilemma. This can be tied back to the idea of deciding or refusing to prosecute members of government despite the political instability that will subsequently ensue. In fact, making compromises on justice with perpetrator of mass atrocities (for instance by granting amnesties for war crimes) has been an integral part of transitional justice for many years, as the immediate concern of ending violence repeatedly outweighed the need for fair trials. [21] By way of example, one could look to the case of Afghanistan, where the transition government has since the fall of the Taliban rule (Islamic Emirate of Afghanistan) in 2001 internationally ignored calls to deal with past injustices to concentrate on the establishment of democratic institutions. [22] Many political science experts have claimed that this settlement threatens the legitimacy of the new Afghan state, which opens up a more general conversation on the importance of justice in times of conflict. [23] Nonetheless, the International Center for Transitional Justice asserts that there has been a shift away from according immunity from prosecution to perpetrators in recent years, and that the concepts of peace and justice are today understood as being mutually reinforcing rather than exclusive. [24]        

Conclusion

Experts have therefore recently noted an important increase in the use and attention received by the concept of transitional justice, a judicial and non-judicial tool applied to restore order and prosecute past human rights violations in countries recovering from conflict and oppression. Transitional justice relies on many different mechanisms and arose from the Nuremberg trials as a way to acquire justice while preventing further conflict. Nonetheless, researchers have been outspoken on the many challenges faced by transitional justice, which can be traced back to issues of ‘victor’s justice’, ‘retroactivity’ and ‘selectivity’ present in the post war tribunals. Since then, a lot has changed, but similar dilemmas persist, exemplified by previously discussed practical (financial and bureaucratic), theoretical (the many conflicts within the legal field) or moral (peace versus justice) difficulties.

We can thus resolve that each conflict should be dealt with in a manner that takes account of transitional justice, as its focus on victims and value of tangible reparative measures help fill the gaps of traditional prosecution. However, transitional justice needs to be adapted to the context at hand through empirical research and strategies reflecting the views of the public.   

 

By Manon Fabre – Research Assistant at CIPADH

 

Bibliography

[1] Werle, G. & Jessberger, F. (2014). Principles of international criminal law. Oxford University Press.

[2] Sikkink, K., & Walling, C. B. (2007). The impact of human rights trials in Latin America. Journal of peace research, 44(4), 427-445.

[3] United Nation. United Nations Approach to Transitional Justice. https://www.un.org/ruleoflaw/files/TJ_Guidance_Note_March_2010FINAL.pdf

[4] IBID

[5] Stanford Encyclopedia of Philosophy. Transitional Justice. https://plato.stanford.edu/entries/justice-transitional/

[6] IBID

[7] IBID

[8] United Nation. United Nations Approach to Transitional Justice. https://www.un.org/ruleoflaw/files/TJ_Guidance_Note_March_2010FINAL.pdf

[9] International Center for Transitional Justice. What is Transitional Justice? https://www.ictj.org/about/transitional-justice

[10] Olsen, T. D., Payne, L. A., & Reiter, A. G. (2010). Transitional justice in the world, 1970-2007: Insights from a new dataset. Journal of Peace Research, 47(6), 803-809.

[11] Stanford Encyclopedia of Philosophy. Transitional Justice. https://plato.stanford.edu/entries/justice-transitional/

[12] Bass, G. J. (2014). Stay the hand of vengeance: the politics of war crimes tribunals. Princeton University Press.

[13] IBID

[14] IBID

[15]Hayner, P. B. (2010). Unspeakable Truths 2e: Transitional Justice and the Challenge of Truth Commissions. Routledge.

[16] Van der Merwe, H., Baxter, V., & Chapman, A. R. (Eds.). (2009). Assessing the impact of transitional justice: Challenges for empirical research. US Institute of Peace Press.

[17] Stanford Encyclopedia of Philosophy. Transitional Justice. https://plato.stanford.edu/entries/justice-transitional/

[18] IBID

[19] Olsen, T. D., Payne, L. A., & Reiter, A. G. (2010). Transitional justice in the world, 1970-2007: Insights from a new dataset. Journal of Peace Research, 47(6), 803-809.

[20] Sunga, L. S. (2009). Ten principles for reconciling truth commissions and criminal prosecutions. In The legal regime of the International Criminal Court (pp. 1071-1104). Brill.

[21] Nadery, A. N. (2007). Peace or justice? Transitional justice in Afghanistan. The International Journal of Transitional Justice, 1(1), 173-179.

[22] IBID

[23] IBID

[24] International Center for Transitional Justice. Peace versus Justice: A False Dilemma. https://www.ictj.org/news/peace-versus-justice-false-dilemma

Category: