An Introduction to Transitional Justice

Olivera Simić

• Publisher: Routledge
• Year: 2016
• Print ISBN: 9781138943223, 9781138943216
• eBook ISBN: 9781317373773
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

An Introduction to Transitional Justice provides the first comprehensive overview of transitional justice judicial and non-judicial measures implemented by societies to redress legacies of massive human rights abuse. Written by some of the leading experts in the field it takes a broad, interdisciplinary approach to the subject, addressing the dominant transitional justice mechanisms as well as key themes and challenges faced by scholars and practitioners.

Using a wide historic and geographic range of case studies to illustrate key concepts and debates, and featuring discussion questions and suggestions for further reading, this is an essential introduction to the subject for students.

Chapter 1

An introduction to transitional justice

Anja Mihr

1.1 Definition

Transitional Justice is a concept and a process that encompasses a number of different legal, political and cultural instruments and mechanisms that can strengthen, weaken, enhance or accelerate processes of regime change and consolidation. Transitional justice measures can foster or hamper successful transition or reconciliation processes, and there is not automatic guarantee for a certain outcome. Transitional justice measures can be politically instrumentalised, used or abused, and the process outcome depends on a variety of different actors involved. The process, as such, is inter-generational, and the measures are multiple.

The United Nations refers to transitional justice measures as a set of judicial and non-judicial instruments and mechanisms such as trials, truth commissions, vetting and lustration procedures, memorials, reparations, restitutions or compensations, and even amnesty and rehabilitation laws that redress the legacies of massive human rights abuses either during war, occupation, dictatorships or other violent and suppressive conflicts and situations. These measures include criminal and political procedures and actions, as well as various kinds of institutional reforms such as security sector reforms or constitution-building. These measures aim to facilitate civil or political initiatives during transition and transformation processes. In the hands of political and civil actors, such initiatives can lead to reparations, legal, security sector or institutional reforms. Whatever combination of measures is chosen by the government or by civil society actors during transition processes, they ought to be in conformity with international human rights standards and obligations in order to have any positive impact on democratic institution-building.¹

Consequently, the field and the array of transitional justice measures and its actors are wide and large. They can include asking private enterprise and companies to issue apologies and compensations for enslaved workers during wartimes, or disappeared labour unionists during the Apartheid regime in South Africa and during military dictatorships in Latin America. They can involve war criminals being trialled by international, hybrid or national tribunals or local courts after an armed conflict, war or genocide has ended. Victims of human rights abuse may receive reparations or compensations according to the wrongdoings they had to endure during suppression, war or dictatorships. Memorials, for example, are erected to acknowledge these wrongdoings and atrocities, and to serve as a warning to future generations. Lustration and vetting procedures aim to shed light on who was responsible to what extent during times of injustice and suppression. Thus, transitional justice measures are multiple and range from memorials to trials, from apologies to amnesty laws but, nevertheless, serve the same purpose. Governments and civil actors use them to delegitimise the past regime and to legitimise the new, ideally democratic, regime, and thus transitional justice measures only trigger reforms and change to the extent to which the actors involved want them to affect, for example, institutional reforms during transition and transformation periods.

Transitional justice measures can be divided into different categories: procedural, interpersonal, and informational justice measures, such as trials, truth commissions, reconciliation programmes, vetting, lustration, security sector reforms, apologies, reparations, compensations or memorials and many different ways of dealing with the past. They are aiming to lead to distributive and restorative justice, often referred to as establishing the rule of law.² Justice is meant in an institutional sense to build up (democratic) institutions for the future, based on the (bad) experience of the past, and less so in philosophical terms. Overall, transitional justice measures aim to prevent society and their institutions, such as political regimes, to repeat the wrongdoings of the past which led to suppression, war or personal losses and grievances.

Generally speaking, transitional justice is more forward- than backward-looking, and has become a driver for regime consolidation both in post-conflict and transition countries. The whole process attains to demystify and delegitimise the past, and legitimise and strengthen the future and present political or societal structures or regime. Transitional justice can – but does not automatically have to – contribute to (re-)building trust in institutions and among divided societies, former combatants, enemies or ethnic, linguistic or religious groups. Some mechanisms aim to reconcile societies and their former opposing parties, others focus more on building trust in institutions, and others again seek to acknowledge and remember past injustice through memorials, compensations or apologies.

In analytical terms, transitional justice measures aim at dealing with an unjust or atrocious past in order to delegitimise its responsible leadership (on all levels) and political system, and at the same time these measures aim to re-establish and legitimise a new political, and hopefully better, but certainly different, regime.³ Transitional justice measures can affect both autocratic and democratic regime change and consolidation. The example of reparations, apologies, lustrations, trials or commissions of inquiry used by Australian, Canadian, Japanese and German governments over the past decades have proved that transitional justice is multifunctional and aims to find effective ways of dealing with an unjust past, even though these events have occurred decades ago. The purpose here is to increase and leverage the civic and political trust in their institution and society.

The way transitional justice measures contribute to change and consolidation is best illustrated through a mutual reinforcing process between the different measures and the institutions they aim to build or strengthen, such as commissions of inquiry, memorials, lustration, security sector reforms, amnesties or trials, and their contribution to building trust in political institutions such as courts, parliaments, municipalities, public administration, education systems or security forces. This mutual reinforcement between measures and institutions can strengthen democratic institution building by enhancing the quality and thus effectiveness of (democratic) institutions, but it can also strengthen a regime that becomes autocratic or dictatorial. The main difference between the two ways is that the first is an inclusive transitional justice process and the second an exclusive one.

An inclusive transitional justice process aims to include all parties or members that were involved in the previous conflict or dictatorship, may they be victims, bystanders or perpetrators, regardless of their political or social status, religious or ethnic background. This process allows putting blame and responsibilities on all sides, not just on those who lost the preceding war or the violent conflict. With this inclusive process, the new political regime in place also illustrates that they aim to make politics different and more democratic than the previous regime. With such an approach, they also delegitimise the previous regime, which usually was a discriminatory and exclusive one. In contrast to this, the exclusive transitional justice process usually selects victims and perpetrators, that is to say those whom the current government portrays as victimisers of the previous regime and thus enemies of the current political justice. This is winner’s justice. Although it is hardly ever possible to be fully inclusive because often victims and perpetrators cannot or do not want to cooperate, it is important to keep the door open for future generations who might want to talk to each other despite the fact that their parents and grandparents had been opposing parties, or either victims or victimisers. Generally speaking, there is no fully-fledged inclusive or exclusive transitional justice process in this world; however, some governments have leaned more to inclusiveness, others more to exclusiveness, which has made a difference in how transitional justice has contributed to stabilising and consolidating new political regimes.

1.2 Transitional justice measures

Transitional justice measures thus include the simple acknowledgement by political actors of previous wrongdoings; that is, through history or truth commissions, apologies or the establishment of memorials and memorial days. Additionally, acknowledgement can be carried out through initiating and responding to public debates, producing films and documentaries, publishing literature or novels about the past, introducing past wrongdoings and historical facts in school textbooks, conducting scientific research and allowing researchers access to archives, media involvement, or naming victims and alleged perpetrators. These acts can include novels, films, blogs, social networks, media or any civil society initiative for certain actions.

Different from acknowledgement, restorative measures can be summarised as acts that involve reparation, restitution, rehabilitation or compensation for victims of expropriation, eviction, imprisonment or illegal killings. Its advantage is that it can be easily assessed through qualitative data and has, therefore, been the subject of intensive investigation in numerous case studies. Alongside substantive and financial compensation or restoration, it includes ways and means for establishing working relationships between former combatants in public institutions, such as via quota systems, reconciliation and reintegration programmes to political prisoners of the former regime, restoring and maintaining memorials, or the public exhumation of mass graves. Although restorative measures such as compensation have been proven to be very effective in terms of victim satisfaction, they are only one part of transitional justice measures. These measures have to be connected to a larger profile of transitional justice, which acknowledges and quantifies the personal loss of lives or years of living under suppression across time. Otherwise, it would lose its meaning for future generations. For example, Rule 150 of the Hague Convention on Reparations from 1948 has become customary international law and is applicable to all countries and societies. It implies that the responsible state is obliged to make full reparations for the injury caused by the internationally recognised wrongful act; once again a measure focusing on victims.⁴ Restoring Armenian churches in Turkey, Buddhist temples in Cambodia or synagogues in Germany after war and genocide can be directly linked to the Hague Convention from 1948 and state obligations to restore and acknowledge past wrongdoings.

Nevertheless, most prominent in the transitional justice debate are criminal justice measures such as trials, tribunals or vetting procedures according to international human, public, criminal or humanitarian law. Criminal justice is predominantly focused on perpetrators, and so are vetting measures or lustra...

Table of contents

• Cover Page
• An Introduction to Transitional Justice
• Title
• Copyright
• Contents
• Notes on Contributors
• Preface
• 1 An Introduction to Transitional Justice
• 2 The Development of Transitional Justice
• 3 International Criminal Justice
• 4 Gender and Transitional Justice
• 5 Truth and Reconciliation Commissions
• 6 Amnesty
• 7 Lustration and Vetting
• 8 Local Transitional Justice – Customary Law, Healing Rituals, and Everyday Justice
• 9 Reparations
• 10 Transitional Justice and Peacebuilding
• 11 Arts and Transitional Justice
• 12 Memorials and Transitional Justice
• 13 Measuring the Success (Or Failure) of Transitional Justice
• 14 Doing the Fieldwork: Well-Being of Transitional Justice Researchers
• Index