An Introduction to Transitional Justice

Olivera Simić, Olivera Simić

• Publisher: Routledge
• Year: 2020
• ISBN:
  9781000096286
• Edition: 2
• Topic: Jura
• Subtopic: Rechtstheorie & -praxis

The Second Edition of An Introduction to Transitional Justice provides a 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 (TJ) 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. TJ measures such as truth commissions, trials, memorials, compensations or amnesties can foster or hamper successful transition or reconciliation processes and there is no automatic guarantee for a certain political or societal outcome, because TJ 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 TJ 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 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

1 United Nations, ‘Guidance Note of the Secretary-General: United Nations Approach to Transitional Justice’ (10 March 2010).

Consequently, the field and the array of TJ measures and its actors are wide and large. They can aim from asking private enterprise and companies to issue apologies and compensations for enslaved workers during wartimes or disappeared labor unionists during the Apartheid regime in South Africa and during military dictatorships in Latin America. Measures can include war criminals to be tried 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, TJ 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 TJ 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.

TJ measures can be divided into different categories: procedural, interpersonal and informational justice measures, such as trials, truth commissions, reconciliation programs, vetting, lustration, security sector reforms, apologies, reparations, compensations, memorials and many different types 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, TJ measures aim to prevent society and its institutions, such as political regimes, from repeating the wrongdoings of the past that led to suppression, war or personal losses and grievances.

2 Hague Institute for the Internationalisation of Law, Tilburg University and Utrecht University, Measuring Access to Justice in a Globalising World: Final Report (2010).

Nevertheless, TJ is more forward than backward-looking, and this process has become a driver for regime consolidation in both post-conflict and transition countries. The whole process aims to demystify and delegitimise the past and legitimise and strengthen the future and present political or societal structures or regime. TJ 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, TJ 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 TJ measures can affect both autocratic and democratic regime change and consolidation, depending on how inclusive and exclusive they are, and by what political intentions these measures are applied by policymakers and society. The example of reparations, apologies, lustrations, trials or commissions of inquiry used by Australian, Canadian, Japanese or German governments over the past decades have proved that TJ is multifunctional and aims to find effective ways of dealing with an unjust past even though these events were decades ago. The purpose here is to increase and leverage civic and political trust in people’s institutions and society.

3 Ruti G Teitel, Globalizing Transitional Justice (Oxford University Press, 2014).

The way TJ 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 sectors reforms, amnesties or trials, and their contribution to building trust in political institutions, such as courts, parliaments, municipalities, public administration, educational 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 turns out to be autocratic or dictatorial. The main difference between the two ways is that the first is an inclusive TJ process and the second an exclusive one.

An inclusive TJ process aims to include all parties or members that were involved in the previous conflict or dictatorship, be they victims, bystanders or perpetrators, regardless of their political or social status and religious or ethnic background. This process allows blame and responsibilities to be put 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 it aims to make politics different and more democratic than the previous regime. Such an approach also delegitimises the previous regime, which usually was a discriminatory and exclusive one. In contrast to this, the exclusive TJ process usually selects victims and perpetrators, that is to say those whom the current government portrays as victimisers in 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 one another even though their parents and grandparents had been opposing parties or victims and victimisers. Generally speaking, there is no fully fledged inclusive or exclusive TJ process in this world; however, some governments have leaned more to inclusiveness, others more to exclusiveness, which made the difference on how TJ contributed to stabilise and consolidate new political regimes.

1.2 Transitional justice measures

TJ measures thus range from 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 though 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 and naming victims and alleged perpetrators. The outcomes of such activities can be novels, films, blogs, social networks, YouTube clips 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 of 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 TJ measures. These measures have to be connected to a larger profile of TJ that acknowledges and quantifies the personal loss of lives or years of living under suppression. Otherwise, restorative measures would lose meaning for future generations. For example, Rule 150 of the Hague Convention from 1907 and the Protocols on Reparations from 1929 have become customary internat...