Transitional justice (TJ)
Transitional justice refers to "a field of activity and inquiry focused on how societies address legacies of past human rights abuses, mass atrocity, or other forms of severe social trauma, including genocide or civil war, in order to build a more democratic, just, or peaceful future."1 It can also be defined as "that set of practices, mechanisms and concerns that arise following a period of conflict, civil strife or repression, and that are aimed directly at confronting and dealing with past violations of human rights and humanitarian law."2
Generally speaking, transitional justice entails a range of approaches, both judicial and non-judicial, that states and societies emerging from repressive rule or violent conflict may adopt to address past human rights abuses/violations with the aim of fostering sustainable peace and democratic governance.
The universe of transitional justice can be broadly or narrowly defined. "At its broadest, it involves anything that a society devises to deal with a legacy of conflict and/or widespread human rights violations, from changes in criminal codes to those in high school textbooks, from creation of memorials, museums and days of mourning, to police and court reform, to tackling the distributional inequities that underlie conflict."3 A narrower definition is centered on the two central aspects of truth and justice and focuses on a set of approaches, including (1) criminal prosecutions, (2) truth commissions, (3) reparations, (4) institutional reform, especially vetting, and (5) amnesties. The choice between these two conceptions is at the origin of many debates. Go to conceptual issues
This subsection focuses on the narrower definition of transitional justice, while highlighting the multiple links with other dimensions of peacebuilding that are directly contributing to the goals of transitional justice.
Criminal prosecutions, as a measure of transitional justice, can be defined as judicial investigations of those responsible for human rights violations. Criminal prosecutions usually target what are called the "big fish"--that is, suspects considered most responsible for massive or systematic human rights violations.4 But some countries have also adopted other para-judicial mechanisms to address crimes committed at a lower level. Domestic courts for such prosecutions remain the preferred forum to bring lasting change. In the past, however, trials at the domestic level have been rare. This has led to significant advances in international justice efforts, such as the creation of ad hoc international criminal tribunals, various hybrid courts, and the International Criminal Court (ICC). Go to Actors and Activities
Truth Commissions (also called Truth & Reconciliation Commissions)
A truth commission can be defined as a temporary body officially sanctioned, authorized, or empowered by the state (or by parties to a peace agreement) to investigate a pattern of human rights abuses that occurred over a certain time period in the past.5 It can also make recommendations to remedy such abuses and to prevent their recurrence in the future.6 Go to Actors and Activities
It is important to distinguish two closely related though distinct terms: reparation and reparations. In current usage, "reparation" is a broad term encompassing a wide array of activities that are designed to acknowledge, apologize, and compensate for a particular wrongdoing. The term "reparations," on the other hand, has come to mean compensation, usually of a material kind. Reparations can be defined as state-sponsored initiatives that seek to repair the material and moral damages caused by the legacies of human rights abuse. As one expert on the topic notes, "One makes reparation, in short, but one pays reparations. Paradoxically, the singular of the term connotes a multiplicity of activities, whereas the plural tends to entail only one."7 Reparation programs usually distribute a combination of material and symbolic benefits to victims, including financial compensation and official acknowledgement of and apology for the wrongs committed against the victims as well as memorialization initiatives.8 While less common, psychosocial support and mental health services may also be components of a reparations program.9
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Vetting refers to processes for screening public employees or candidates for public employment to determine if their prior conduct (especially their lack of respect for human rights standards) warrants their exclusion from public institutions.10 The vetting of security agencies and judicial systems is particularly central from a transitional justice perspective as it is meant to effect structural change and dismantle "networks of criminal activity"11 with the aim of making those institutions more trustworthy in the eyes of the general population. Go to Actors and Activities
Amnesty can be defined as immunity in law, from either criminal or civil legal consequences, or from both, for wrongs committed in the past in a political context. Immunity may derive either from an amnesty law or an exercise of power founded in law.12 More generally, it refers to a state policy of or a societal preference for overlooking or forgetting the violent past. The very idea that amnesties are transitional justice mechanisms can be highly contentious, as they may appear as "do nothing" approaches. International and national actors also have very different view on amnesty. However, amnesties have been part of many peace agreements and remain widely applied internationally.
Go to Actors and Activities
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In the context of transitional justice, accountability refers to the practice of holding (or the need to hold) individuals responsible for official acts that violate international human rights.13
Impunity can be defined as exemption from punishment or penalty for alleged human rights violations. In international human rights law, it refers to the failure to bring perpetrators of human rights violations to justice. The amended Set of Principles for the Protection and Promotion of Human Rights Through Action to Combat Impunity, submitted to the United Nations Commission on Human Rights on 8 February 2005, defines impunity as: "the impossibility, de jure or de facto, of bringing the perpetrators of violations to account--whether in criminal, civil, administrative or disciplinary proceedings--since they are not subject to any inquiry that might lead to their being accused, arrested, tried and, if found guilty, sentenced to appropriate penalties, and to making reparations to their victims."14
Justice is a universal principle that has been debated for millennia by philosophers across all civilizations, and that finds diverse expressions in all cultural, religious and spiritual traditions. Aristotle differentiated between three related dimensions of justice: legal justice or rule of law, rectificatory justice or righting wrongs and distributive justice.15 In a seminal report on rule of law and transitional justice, the Secretary-General of the United Nations defines justice as "An ideal of accountability and fairness in the protection and vindication of rights and the prevention and punishment of wrongs. Justice implies regard for the rights of the accused, for the interests of victims and for the well-being of society at large."16 This definition highlights two particular dimensions that are often debated in the transitional justice field: the retributive justice (punishing perpetrators) and the restorative justice (focusing on the needs of victims and on restoring relations between victims and perpetrators). Go to Justice and Rule of Law: Introduction
Though notoriously problematic and contentious, the term "reconciliation" is generally considered as a "multidimensional phenomenon," encompassing several processes of addressing conflicting and fractured relationships and including a range of different activities.17 As Louis Kreisberg, a scholar who has written extensively on the subject, summarizes: "Reconciliation can refer to actions that sometimes help transform a destructive conflict or relationship, the processes by which that transformation occurs, or the outcome of such processes."18 The four key dimensions of reconciliation generally emphasized are shared truths, justice, regard and security, although actors have defined these terms differently. Reconciliation is both an individual and collective process that needs to take place at different levels (community and society). Go to Reconciliation
Rule of Law
The Secretary General of the United Nations defines the rule of law as "a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency."19 Although the expression "rule of law" contains multiple, related meanings, in international practice it refers to the guaranteeing of the rights and freedoms of citizens or, in other words, of their security and integrity. This includes the equal protection and non-discrimination of citizens, access to justice, due process, police accountability, and judicial independence. It also implies that the government itself is bound to laws that are consistent with international standards.20 Go to Justice and Rule of Law: Introduction
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Three main conceptual discussions can be identified:
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- The two core notions of "transition" and "justice";
- The scope of transitional justice: narrow or broad?
- The two dominant overarching terms: "transitional justice" vs. "post-conflict justice."
Two core concepts: transition and justice
The term "transitional justice" can be vague, slippery, and fraught with misunderstanding. Therefore, it may be important to unpack it, analyze its varying meanings, and propose an understanding of the term that makes sense in the context of peacebuilding. Transitional justice consists of two core concepts: transition and justice.
The notion of transition comes from a sub-discipline in political science transitology that studies the process of change from a political regime to another, mainly from authoritarian regimes to democracies. It was influenced by two teams of scholars: Guillermo O'Donnell, Philippe Schmitter, and Laurence Whitehead who published "Transitions from Authoritarian Rule: Prospects for Democracy" in 1986, and Juan J. Linz and Alfred Stepan, who published "The Breakdown of Democratic Regimes" in 1978 and then Problems of Democratic Transition and Consolidation in 1996. The notion was then expanded to the transition from conflict to peace or stability.21 Go to Democracy and Governance: Introduction
Alex Boraine, a former deputy chair of the South African Truth and Reconciliation Commission and co-founder and president of the International Center for Transitional Justice, remarks that "A country in transition is a country which is emerging from one particular order and is uncertain and unsure as to how to respond to the challenge of the new. These countries face the problem of dealing with the past on the one hand and the challenge of new directions on the other. In addition, they face the problem of ensuring sustainable peace so that democracy and economic growth can flourish."22 In other words, a transitional society is one that has neither entirely moved beyond the legacies of the violent past, nor one that has established a sustainable peace. Rather, it is a society in transition from one state to another. And this very "transitoriness" is what gives rise to the multitude of tensions, dilemmas, and debates that preoccupy scholars, practitioners, and activists of transitional justice. Go to debates and implementation challenges
The term "transitional" may be misleading if it is conceived as addressing judicial, political, and moral issues characterizing the period immediately following the fall of a regime or the end of a war. Transitional justice efforts may span decades. Transition is not necessarily a linear process and, as is also the case for democratization processes, it does not specify what a society is transitioning to, or when a transitional period will end (what transitologists call "consolidation"). For instance, Argentina, one of the earliest countries to experiment with transitional justice, is to this day addressing the legacies of human rights violations by bringing alleged perpetrators of the "Dirty War" to stand trial for their actions. Moreover, transitional justice mechanisms can be used in established democracy as a way to redress past wrongs.23
In sum, "transitional" ranges from efforts undertaken during or immediately after a discrete transitional moment (such as regime change, or a negotiated peace ending a civil war) to those undertaken decades later.
The notion of justice in transitional justice is generally thought to encompass various forms of justice, which can at times be in tension. The two most dominant ones are:
The latter is a more recent paradigm, pioneered mainly by Howard Zehr, practitioner and academic, which offers an alternative way of doing justice, where the victim, the offender and the community jointly craft a solution that promotes reparation, reconciliation and reassurance. It is therefore sometimes conflated with the notion of reparative justice.24 Most of the core debates about the nature of justice in transitional periods revolve around the two main paradigms of retributive and restorative justice.
- retributive justice (punishing perpetrators); and
- restorative justice (focusing on the needs of victims and on restoring relations between victims and perpetrators).
In the literature, one can find a variety of typologies of justice. Scholar Rama Mani, for instance, conceives of justice in post-conflict societies as consisting of three dimensions:
Indeed, in the context of peacebuilding, transitional justice does not solely refer to strictly justice issues, whether judicial or non-judicial. It rather touches upon a vast range of issues such as security sector reform, democratization and civil society development, reconciliation and recovery from trauma. As David Crocker points out, "the term 'transitional justice' may be misleading" because it "singles out one morally urgent feature from a complex that has many pressing goals or obligations."26 Different ways of understanding justice has lead to different ways of imagining the scope of transitional justice.
- rectificatory justice: rectifying the injustices that are direct consequences of conflict (this dimension is most closely associated with what we call transitional justice);
- legal justice: addressing legal injustices, such as political manipulation of the legal system, corruption of the judiciary, lack of access to justice; and
- distributive justice: structural and systematic injustices and distributive inequalities (political, economic, social) that are frequently at the root of violent conflict.25
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The scope of transitional justice: narrow or broad?
Narrowly defined, transitional justice essentially means justice in times of transition, or, according to Ruti Tietel, a leading scholar in the field, "the conception of justice associated with periods of political change, characterized by legal responses to confront the wrongdoing of repressive predecessor regimes."27 Narrow conceptions of transitional justice tend to emphasize legal approaches to past human rights violations. They also tend to espouse a backward-looking understanding of justice--that is, judicial and non-judicial measures that mete out justice for past human rights violations. By contrast, a forward-looking understanding of justice places emphasis on approaches that seek to prevent the recurrence of human rights violations in the future, primarily through institutional reform and societal change. Of course, in reality, the distinction is not so strong; for instance, prosecutions also display important forward looking aims in terms of deterrence of future violations and contribution to building the rule of law.28 A narrow view can also be criticized for "ignoring root causes and privileging civil and political rights over economic, social and cultural rights and by so doing marginalizing the needs of women and the poor."29
Broader definitions of transitional justice include political, social, and economic measures to address the legacies of past human rights violations. An expansive definition of transitional justice inevitably touches upon all other areas of peacebuilding, such as security and public order, democratization and good governance, economic reconstruction, and psychosocial recovery. "At its broadest, [transitional justice] involves anything that a society devises to deal with a legacy of conflict and/or widespread human rights violations, from changes in criminal codes to those in high school textbooks, from creation of memorials, museums and days of mourning, to police and court reform, to tackling the distributional inequities that underlie conflict."30
Some scholars who work on justice issues in post-conflict societies argue that it is virtually impossible (and conceptually unhelpful and policy-wise dangerous) to separate transitional justice and peacebuilding in post-conflict settings. For instance, scholar Rama Mani proposes a holistic approach to justice in post-conflict societies centered on the notion of reparative justice, which consists of three dimensions:
- restoring the rule of law through reforms to prisons, police and judiciary;
- rectifying human rights violations through trials, truth commissions, reparation and traditional mechanisms; and
- redressing the inequalities and distributive injustices that underlie violent conflict.31
Transitional justice, in this view, is part of larger peacebuilding processes in post-conflict societies.
However, others caution against too broad a definition. Scholar Naomi Roht-Arriaza notes that "broadening the scope of what we mean by transitional justice to encompass the building of a just as well as peaceful society may make the effort so broad as to become meaningless."32 It is interesting to note that the same kind of discussion surrounds the notion of reconciliation.
Go to Reconciliation and conflict transformation
In fact, the main actors in the field of transitional justice tend to adopt a middle-ground, pragmatic approach, recognizing that transitional justice consists of a range of well-established approaches, but may also include other dimensions and activities depending on the particular post-conflict context. Many, if not most, actors have also come to recognize the importance of institutional reforms (in particular, of the judicial and security sectors). For instance, in the landmark 2004 United Nations Secretary General's report The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, the definition of transitional justice includes institutional reforms.33 The International Center for Transitional Justice now includes security system reform (SSR) among its programs, for which they advocate a "justice-sensitive approach."34 Such institutional reforms, along with other undergoing reforms in the administration, aim at restoring citizens faith in state institutions and complement other measures in society that support the restoration of trust among citizens.
Go to Legal and judicial reform and (re)construction; Public administration, local governance and participation; Reconciliation; and Memorialization, historiography & history education
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"Transitional justice" and "post-conflict justice"
The term "transitional justice" has gained widespread recognition since the 1995 publication of the three-volume Transitional Justice: How Emerging Democracies Reckon with Former Regimes, edited by Neil Kritz, the director of the Rule of Law program at the United States Institute of Peace (USIP), and the creation of multiple programs under that name, including the International Center for Transitional Justice, founded in 2001. The term emerged in the context of the "third wave of democratization"35 in Latin America, Asia, and Eastern Europe during the 1970s and 1980s. Specifically, human rights activists and victim groups began seeking and demanding justice for the crimes of the previous regime. Because of the context in which these actions were undertaken, scholars, practitioners, and activists began referring to these justice-seeking practices as "transitional justice." As a result of its origins in the field of democratization, transitional justice was initially defined almost exclusively in terms of a transition from authoritarianism to democracy. With the proliferation of peacebuilding processes in the aftermath of civil (or intrastate) wars in the 1990s, transitional justice gradually came to encompass another type of transition: "from armed conflict to uneasy peace."36 Today, most transitional justice activities take place in post-conflict settings. Go to transition
This merging of transitional justice and peacebuilding explains why transitional justice in post-conflict settings is sometimes referred to as post-conflict justice. It can be defined as efforts by states and societies emerging from war or violence to address human rights violations (such as mass atrocities and genocide) caused by political leaders, combatants and civilians in an armed conflict. The overarching goals of post-conflict justice are to prevent the recurrence of violent conflict, to contribute to sustainable peace and the rebuilding of a society based on the rule of law. In current usage, the terms "transitional justice" and "post-conflict justice" are used interchangeably "to denote the range of judicial and non-judicial mechanisms aimed at dealing with a legacy of large-scale abuses of human rights and/or violations of international humanitarian law. These mechanisms are designed, to a greater or lesser extent, to address the need for accountability, to provide justice and to foster reconciliation in societies in transition from authoritarian to democratic rule or from war to peace."37
Some scholars and practitioners choose to avoid using the term transitional justice because it does not specify "what the state is 'transitioning' to."38 For that reason, they prefer the term post-conflict justice. That being said, there is a general consensus that "In the contemporary period, the use of the term transition has come to mean change in a liberalizing direction."39 A key limitation of the term post-conflict justice, on the other hand, is that it does not include cases where the core issue was not war or violent conflict, but rather government repression or authoritarian rule.
The conflation between the two terms may, however, be problematic because it obscures key differences between transitions from authoritarianism to democracy (for example, Argentina, Chile, Poland, Spain, South Africa,) and war-to-peace transitions (for example, Guatemala, East Timor, El Salvador, Rwanda, Sierra Leone).40 First, in transitions from authoritarianism to democracy, the state was the primary perpetrator of human rights abuses. As a result, transitional justice is primarily about bringing state actors (that is, individuals) to account for their crimes. Moreover, the range of perpetrators is rather limited. This stands in contrast to how contemporary civil wars and mass killings unfold. Although in many cases the violence is driven or at least officially sanctioned by the state, this state-led initiative is complemented by a maze of other perpetrators, including guerilla forces, insurgent groups, multiple armed factions, local-level score-settling, and neighbor-on-neighbor violence. In other words, contemporary episodes of mass violence are the product of both state and social (or popular) forces. Relatedly, while massive or systematic human rights violations are typically thought of as being caused by an excessively strong, centralized and authoritarian state (as in Nazi Germany or Stalinist Soviet Union), contemporary cases of gross human rights violations point to another cause: the weakness or, in some cases, absence of a central state (as in Afghanistan or Haiti).
Second, and as a result, there is a huge disparity in the scope and intensity of violence between authoritarian to democracy and war to peace transitions. For example: whereas in Chile roughly 3,000 people were killed as a result of state repression spanning 17 years, in Rwanda roughly 800,000 thousand people were killed in 100 days. To be sure, authoritarian regimes committed egregious human rights violations, including torture, kidnappings, and mass atrocities verging on genocide (as in Guatemala, where roughly 200,000 indigenous Maya were killed as a result of the militarys counterinsurgency operations). However, this has ben more the exception than the rule. In contemporary internal wars, on the other hand, mass atrocities are the rule rather than the exception.
Third, and as a consequence of the above factors, justice issues in war-to-peace transitions are vastly more challenging and complicated. By way of example, consider the issue of criminal prosecutions. How can trials be undertaken in domestic courts when there is no justice system to speak of and where the number of suspected perpetrators or accomplices is in the tens and even hundreds of thousands? Because post-war societies tend to be more psychologically traumatized, socio-economically devastated, and politically dysfunctional than societies transitioning from authoritarianism to democracy, it is generally recognized that post-conflict transitional justice must be seen holistically, where an array of complementary transitional justice mechanisms (criminal prosecutions, truth commissions, reparation programs, vetting and institutional reform, amnesties and other initiatives) operate at different levels (international, national, and local). Since transitional justice in post-conflict societies is inevitably part of the larger peacebuilding agenda, it is crucial that it complement, and in turn be supported by, other peacebuilding activities.
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A brief history of transitional justice41
Transitional justice is not entirely new; in fact, it was practiced as far back in history as in ancient Greece.42 However, its modern origins can be traced back to the post-World War II Europe, and especially International Military Tribunal at Nuremberg (1946-1949) and the de-nazification programs in Germany.43 The central feature of this first wave of transitional justice was the articulation and application of international law, and in particular the idea that individuals can and should be held accountable for violations of international human rights and humanitarian law. Although the military tribunals were criticized by some as being an example of "victor's justice," they significantly influenced the development of international law and set a precedent for international justice efforts decades later. Yet the post-war ascendance of international justice was short-lived, due to the coming of the Cold War and the bipolar nature of world politics.
The real emergence and growth of transitional justice as a field of inquiry and practice (and its articulation as such) occurred in the 1980s and 1990s, primarily due to the growing number of democratizing states around the world and the resulting question of how, and whether, to address the human rights violations committed by previous--usually military and/or authoritarian--regimes. Other contributory factors include the increasing prominence of human rights, the emergence and proliferation of human rights organizations, and the end of the Cold War.
The central feature of this second wave of transitional justice was the truth commission (in some cases called the "truth and reconciliation commission").44 Truth commissions emerged within the particular context of negotiated transitions from authoritarianism to democracy in South America. In these settings, criminal prosecutions were either impossible or extremely dangerous because the outgoing regime still retained considerable power and had the ability to derail the democratization process. For human rights activists and reformers in government, then, the truth commission came to be seen as a "second best alternative." These truth-seeking initiatives were also referred to as commissions of inquiry. It is important to not that not all truth seeking initiatives are truth commissions as now understood in the field. 45 Accordingly, Argentina had the National Commission on the Disappearance of People (1983) and Chile had the Chilean Truth and Reconciliation Commission (1990). The truth about the previous regimes abuses would be established and acknowledged at the expense of prosecuting suspected perpetrators. As a result, people started referring to the so-called "truth versus justice" debate.
In 1995, South Africa established a Truth and Reconciliation Commission (TRC) as a central component of its negotiated transition from apartheid to democracy. The South African TRC is perhaps the most written-about single transitional justice endeavor. Its purported goal was to reveal the truth about the past in order to foster societal reconciliation. Widely praised internationally, the South African "model" began to be applied in other transitional contexts, while it received a more critical reception at home. Since then, truth commissions have proliferated around the world. According to one estimate, 30 such commissions having been established to date, around the world, a vast portion of them being in post-conflict contexts. From country to country, a process of diffusion of experiences and ideas followed, even though "each place was also unique, influenced not only by international advisors and funders but by the strength of its own human rights movement, of opposing political forces and the nature and extent of the conflict."46
While truth commissions became widely known, other elements of the transitional justice "toolbox" were used far less frequently. For example, vetting of political leaders and security forces, for instance, has been applied very unevenly. Similarly, reparations for victims are frequently part of the recommendations of truth commissions, but rarely implemented.
Parallel to these developments, the brutal wars in the former Yugoslavia and the genocide in Rwanda led to the creation of two ad hoc international tribunals: the International Criminal Tribunal for the former Yugoslavia (ICTY), based in The Hague, Netherlands, and the International Criminal Tribunal for Rwanda (ICTR), based in Arusha, Tanzania. These tribunals, like their post-World War II predecessors, were mandated to prosecute individuals suspected of having committed egregious violations of international human rights and humanitarian law, including genocide, crimes against humanity, and war crimes. International justice was further institutionalized by the establishment of the International Criminal Court (ICC) in 2002, which is a permanent tribunal charged with prosecuting individuals for genocide, crimes against humanity, war crimes, and the crime of aggression.47 The ICC can only prosecute crimes that occurred on or after July 1, 2002 (the date it came into existence). 109 states are members of the Court and another 40 states have signed but not ratified the Rome Statute, the ICC's founding treaty.48
By the beginning of the new millennium, the debate about truth versus justice seemed to be resolving in favor of an approach that recognized them as complementary. Even those who argue strenuously in favor of a non-prosecutorial, "truth-centered" approach have come to recognize exceptions for crimes against humanity. Similarly, advocates of criminal prosecutions acknowledge that truth-seeking and truth-telling activities may serve as a valuable precursor or complement to, even if not a substitute for, prosecutions. This mutual recognition is combined with increasing attention at the international level to issues of reparation and institutional reform. Practitioners and scholars now speak of a "package" of measures that together constitute an "ecological model" of social reconstruction where each element affects and is affected by the shape and possibilities of others. Only by interweaving, sequencing and accommodating multiple pathways to justice could some kind of larger justice in fact emerge. 49
The current third wave or "global phase of transitional justice," is marked by three significant features:
- "First, the move from exceptional transitional responses to a 'steady-state' justice, associated with post-conflict related phenomena that emerge from a fairly pervasive state of conflict, including ethnic and civil wars;
- second, a shift from a focus on state-centric obligations to the far broader array of interest in non-state actors associated with globalization;
- and, lastly, we see an expansion of the laws role in advancing democratization and state-building to the more complex role of transitional justice in the broader purposes of promoting and maintaining peace and human security."50
The global rise of transitional justice is borne out by empirical evidence. The unprecedented increase in transitional justice processes around the world has been described as the "justice cascade."
In its current evolution, transitional justice exhibits an increasingly complex set of linkages between the local, national and international arenas, with different mechanisms functioning simultaneously. For example, truth commissions are now often seen as complements to criminal processes, and a few of them have coexisted with ongoing criminal investigations or have been explicitly designed to feed into such investigations. In addition to national and international criminal prosecutions, there are now "hybrid" courts, such as the Special Court for Sierra Leone or the Extraordinary Chambers of the Cambodian Criminal Court, whose benches include both national and international judges. There is also greater attention paid to community-level transitional justice mechanisms. In East Timor, Local Reconciliation Processes (LRP) have been undertaken to reintegrate former perpetrators back into local communities, and Rwanda has experimented with a massive state-led, community-level experiment in transitional justice known as the gacaca courts. Transitional justice in post-conflict societies is also increasingly linked to broader projects of institutional reform and societal change.51 For instance, the field of TJ is now moving towards a greater integration of issues of economic inequality, structural violence, redistribution and development.52 The coexistence of multiple mechanisms results in synergies and tensions, duplications and gaps. The relationships between different institutions necessarily become complicated, as they must navigate issues of evidence- and witness-sharing, division of labors, sequencing, and the similarities and differences in the narratives they produce.53 Recent analyses have also emphasized potential "irreconcilable goals" between different transitional justice advocacy and institutions.54 This increasingly complex and diverse reality has spawned important debates and challenges that continue to animate the field of transitional justice.
Go to Debates and Implementation Challenges
1. Louis Bickford, "Transitional Justice," in The Encyclopedia of Genocide and Crimes Against Humanity, Vol. 3, ed. Dinah Shelton (Macmillan Library Reference, 2004), 1045. Legal scholar Ruti Teitel claims to have coined the term in 1991; however, this is debated. See Ruti Teitel, "Editorial Note-Transitional Justice Globalized," International Journal of Transitional Justice 2 (2008), 1.
2. Naomi Roht-Arriaza, "The New Landscape of Transitional Justice," in Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice, eds. Naomi Roht-Arriaza and Javier Mariezcurrena (Cambridge: Cambridge University Press, 2006), 2.
4. "What is Transitional Justice?" International Center for Transitional Justice (ICTJ), July 2008.
5. Priscilla B. Hayner, Unspeakable Truths: Facing the Challenge of Truth Commissions (New York and London: Routledge, 2002), 14.
6. Brandon Hamber and Hugo van der Merwe, "What is this Thing Called Reconciliation?" Reconciliation in Review 1, no. 1, (1998).
7. John C Torpey, Making Whole What Has Been Smashed: On Reparation Politics (Cambridge, MA: Harvard University Press, 2006), 45.
8. "What is Transitional Justice?" July 2008.
9. Brandon Hamber, "Narrowing the Micro and Macro: A Psychological Perspective on Reparations in Societies in Transition;" and M. Brinton Lykes and Marcie Mersky, "Reparations and Mental Health: Psychosocial Interventions towards Healing, Human Agency, and Rethreading Social Realities," in The Handbook of Reparations, ed. Pablo De Greiff (Oxford: Oxford University Press, May 2006).
10. Roger Duthie, "Introduction," in Justice as Prevention: Vetting Public Employees in Transitional Societies, eds Alexander Mayer-Rieckh and Pablo de Greiff (New York: Social Science Research Council, 2007), 17.
11. Pablo De Grieff, "Vetting and Transitional Justice," in Justice as Prevention: Vetting Public Employees in Transitional Societies, eds Mayer-Rieckh and de Greiff, 526.
12. Andreas OShea, Amnesty for Crime in International Law and Practice (Hague: Kluwer Law International, 2002), 1-2.
13. Steven R. Ratner and Jason S. Abrams, eds., Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy (Oxford: Oxford University Press, 2001), 3.
14. United Nations, Updated set of principles for the protection and promotion of human rights through action to combat impunity Commission on Human Rights, E/CN.4/2005/102/Add.1 (8 February 2005).
15. Comment by Rama Mani, 12 November 2008.
16. United Nations Security Council, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies Report of the Secretary General, S/2004/616 (August 23, 2004), 4, para. 8.
17. Louis Kriesberg, "External contributions to post-mass-crime rehabilitation," in After Mass Crime: Rebuilding States and Communities,eds. Beatrice Pouligny, Simon Chesterman and Albrecht Schnabel (Tokyo: United Nations University Press, 2007), 243-270, 251; Brandon Hamber and Grainne Kelly, "A Working Definition of Reconciliation," Democratic Dialogue (Belfast, 2004), 3-4.
18. Louis Kreisberg, "Comparing Reconciliation Actions within and Between Countries," in From Conflict Resolution to Reconciliation, ed. Yakov Bar-Siman-Tov (Oxford University Press, 2004), 82.
19. United Nations Security Council, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, 4, para. 6.
20. Beatrice Pouligny, "UN peace operations, INGOs, NGOs, and promoting the rule of law: exploring the intersection of international and local norms in different postwar contexts," Journal of Human Rights 2, no. 3 (September 2003), 359. International organizations usually refer to these different elements; see the UN definition above and also the one used by the World Bank: Legal Vice Presidency, World Bank, Legal and Judicial Reform: Strategic Directions (Washington, D.C.: January 2003), 1-2.
21. Bickford, "Transitional Justice," 1045.
22. Alexander L. Boraine, "Transitional Justice: A Holistic Interpretation" Journal of International Affairs 60, no. 1 (Fall/Winter 2006): 17-18.
23. Personal communication with Nahla Valji, 28 November 2008.
24. Howard Zehr, The Little Book of Restorative Justice (United States: Good Books, 2002), 74.
25. Rama Mani, Beyond Retribution: Seeking Justice in the Shadows of War (Cambridge, UK: Polity Press, 2002), 5-11.
26. David A. Crocker, Reckoning With Past Wrongs: A Normative Framework, Ethics and International Affairs 13 (1999), 2.
27. Ruti G. Tietel, "Transitional Justice Genealogy," Harvard Human Rights Journal 16 (2003), 69.
28. Personal communication with Ana Patel, 24 November 2008.
29. Roht-Arriaza, "The New Landscape of Transitional Justice," 2.
31. See Mani, Beyond Retribution: Seeking Justice in the Shadows of War, 173-178; see also Rama Mani, "Rebuilding an Inclusive Political Community After War," Security Dialogue 36, no 4 (December 2005): 511-526.
32. Roht-Arriaza, "The New Landscape of Transitional Justice," 2.
33. United Nations Security Council, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, 4, para. 8.
34. "Justice-Sensitive SSR: Reforming Abusive Security Systems," International Center for Transitional Justice, March 2008.
35. For a discussion on this phenomenon, see Samuel P. Huntington, The Third Wave: Democratization in the Late Twentieth Century (Normal, OK: University of Oklahoma, 1992).
36. Ellen Lutz, "Transitional Justice: Lessons Learned and the Road Ahead," in Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice, eds. Naomi Roht-Arriaza and Javier Mariezcurrena (Cambridge: Cambridge University Press, 2006), 326.
37. Rachel Kerr and Eirin Mobekk, Peace and Justice: Seeking Accountability after War (Cambridge, UK: Polity Press, 2007), 3.
38. Roht-Arriaza, "The New Landscape of Transitional Justice," 1; for a critique of transitology in political science, see Thomas Carothers, "The End of the Transition Paradigm," Journal of Democracy 13, no. 1 (January 2002): 5-21. .
39. Ruti G. Teitel, Transitional Justice (Oxford: Oxford University Press, 2000), 5.
40. For a discussion about the differences between the two types of transitions, see Lutz, "Transitional Justice: Lessons Learned and the Road Ahead," 326-329.
41. For an intellectual history of transitional justice, see Arthur Paige, "How 'Transitions' Reshaped Human Rights: A Conceptual History of Transitional Justice," Human Rights Quarterly (forthcoming, May 2009).
42. For a historical survey of transitional justice, see Jon Elster, Closing the Books: Transitional Justice in Historical Perspective (Cambridge, MA: Cambridge University Press, 2004).
43. For a history of war tribunals, see Gary J. Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals (Princeton: Princeton University Press, 2003).
44. For a key reference on Truth Commissions see Hayner, Unspeakable Truths: Facing the Challenge of Truth Commissions.
45. Personal communication with Ana Patel, 24 November 2008.
46. Roht-Arriaza, "The New Landscape of Transitional Justice," 5.
47. The ICC does not currently exercise jurisdiction over the crime of aggression pending an agreement among state parties on a definition of the term.
48. The International Criminal Court.
49. Roht-Arriaza, "The New Landscape of Transitional Justice," 8.
50. Teitel, "Editorial Note-Transitional Justice Globalized," 2.
51. Fionnuala Ni Aolain, "Expanding the Boundaries of Transitional Justice," Ethics and International Affairs 22, no. 2 (Summer 2008).
52. See the issue ofThe International Journal of Transitional Justice about thenexus between transitional justice and development, in particular the article by Zinaida Miller, "Effects of Invisibility: In Search of the Economic in Transitional Justice," The International Journal of Transitional Justice 2, no 3, (December 2008), 266-291.
53. Roht-Arriaza, "The New Landscape of Transitional Justice," 9.
54. Bronwyn Ann Leebaw, "The Irreconcilable Goals of Transitional Justice," Human Rights Quarterly 30, no 1 (2008), 95-118.