Transitional Justice

Theories, Mechanisms and Debates

Hakeem O. Yusuf, Hugo van der Merwe, Hakeem O. Yusuf, Hugo van der Merwe

• Publisher: Taylor & Francis
• Year: 2021
• Print ISBN: 9781138794078
• eBook ISBN: 9781317642541
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Transitional justice is the way societies that have experienced civil conflict or authoritarian rule and widespread violations of human rights deal with the experience. With its roots in law, transitional justice as an area of study crosses various fields in the social sciences. This book is written with this multi- and inter-disciplinary dynamic of the field in mind.

The book presents the broad scope of transitional justice studies through a focus on the theory, mechanisms and debates in the area, covering such topics as:

• The origin, context and development of transitional justice
• Victims, victimology and transitional justice
• Prosecutions for abuses and gross violations of human rights
• Truth commissions
• Transitional justice and local justice
• Gender, political economy and transitional justice
• Apology, reconciliation and the politics of memory

Offering a discussion of the impact and outcomes of transitional justice, this approach provides valuable insight for those who seek both an introduction alongside relatively advanced engagement with the subject.

Transitional Justice: Theories, Mechanisms and Debates is an important text for postgraduate and advanced undergraduate students who take courses in transitional justice, human rights and criminal law, as well as a systematic reference text for researchers.

1 Origin, context and development of transitional justice

Hakeem O. Yusuf

DOI: 10.4324/9781315760568-1

Armed conflict and state repression were two of the foremost sources of widespread human suffering in the 20th century that have continued to sow misery into the 21st century. Both internal and international armed conflicts have been waged across the globe and state repression has sadly been an ongoing or recurrent phenomenon despite the growth of democracy. There has been a virtually unprecedented loss of life through ethnic cleansing, genocide, forced disappearances, internment, suffering, sexual violence and forced displacement. The list of sites of mass killing and suffering is extensive and continues to grow at an unrelenting pace.¹ The need for responses to these situations has led to the demand for transitional justice in the contemporary period. This chapter introduces transitional justice and, along with the next two chapters, examines some of the most important foundational issues that arise in our subject.

¹Current or recent examples include Afghanistan, Kenya, Egypt, Syria, Tunisia, Libya, the Central African Republic, Iraq and Nigeria. Argentina, El Salvador, Chile, Guatemala, Honduras, Haiti, Papua New Guinea, Timor Leste, Cambodia, Sierra Leone, Liberia, Rwanda, Burundi, the Democratic Republic of the Congo, Spain, Northern Ireland and former Yugoslavia all make the list of countries or regions that have experienced conflict or repressive rule and have emerged or are emerging from it. This is by no means an exhaustive list.

Abuses during repressive rule or periods of conflict have been a longstanding feature of human societies throughout history. Millions of people have been killed and untold numbers of homes, properties, farmlands, businesses and livelihoods destroyed. These events have not occurred simply as a byproduct of armed conflict but also through deliberate policies of repression and oppression by national regimes and armed groups. The Cold War era commonly witnessed situations of impunity in numerous countries and in virtually every region of the world.² From Germany to Japan, Iraq to South Africa and Syria to Timor Leste (formerly East Timor); from Chechnya and Ingushetia to the former Yugoslavia and Darfur; from Cambodia to Sierra Leone and the Central African Republic to Guantanamo, civilians have been killed or tortured, typically en masse. The demand for accountability and the urge to respond to these injustices, while not new, has gained momentum after the end of the Cold War and has now crystallised into a field of theory and practice.

²For a world-wide survey, see for instance, M. Cherif Bassiouni (ed.), The Pursuit of International Criminal Justice: A World Study on Conflicts, Victimization and Post-Conflict Justice (Vols I and II Intersentia Antwerp-Oxford-Portland, 2010).

This chapter explores the origin of transitional justice, its meaning and its historical development. It traces the genealogy of transitional justice from ancient times through to the contemporary grounding of transitional justice in the prosecutions at the International Military Tribunal at Nürnberg (Nuremberg Tribunal) and the International Military Tribunal for the Far East (Tokyo Tribunal).

Seeking justice after periods of repression and in the aftermath of mass atrocities is not new. As David Dyzenhaus observes, it is the ‘label’ of transitional justice that is new; the ‘topic’ is not. Societies have always desired to break with a troubled past marked by injustice and repression and have adopted various measures to usher in a ‘better future.’³ However, there is ‘a growing sense,’ located in a wider demand for accountability for power from the last half of the 20th century, that something must be done to abate atrocities and ‘bring those responsible to account, make facts known, and to succour victims.’⁴

³David Dyzenhaus, ‘Review Essay: Transitional Justice,’ International Journal of Constitutional Law 1(1) (2003), 163, 164.

⁴Naomi Roth-Arriaza, ‘The New Landscape of Transitional Justice,’ in N. Roth-Arriaza and J. MariezCurrena (eds.), Transitional Justice in the Twenty-First Century – Beyond Truth versus Justice (Cambridge University Press, 2006), 1–16, 1.

When countries emerge from a violent conflict of state repression (like authoritarian rule), there is a need to address gross violations of human rights that invariably occur during these periods. Transitional justice is concerned with measures adopted by countries recovering from mass atrocities committed during armed conflict and repression to deal with wrongdoers and redress injustices as a means to stabilise the present, secure the future and prevent a return to impunity. Impunity has been defined as ‘the condition where powerful individuals and institutions act as they desire without fear of reprisals, reproach, retribution, or recrimination.’⁵

⁵African Union Panel of the Wise, Peace, Justice, and Reconciliation in Africa: Opportunities and Challenges in the Fight Against Impunity (The African Union Series New York, 2013), 1.

Transitional justice has progressively attained the status of a global norm within the international community in the last few decades.⁶ It is now widely accepted that as a legal, social and moral norm, accountability for the past is crucial for lasting peace, as without it, transitional societies face the risk of continued political instability and renewed violence.⁷ As the first President of the International Criminal Court, Judge Philippe Kirsch stated, ‘Ensuring accountability is important in itself, but it is also important because allowing impunity for widespread or systematic atrocities can have serious consequences for international peace.’⁸

⁶Rosemary Nagy, ‘Transitional Justice as Global Project: Critical Reflections,’ Third World Quarterly 29(2) (2008), 275.

⁷ Juan E. Mendéz, ‘Accountability for Past Abuses,’ Human Rights Quarterly 19(2) (1997), 255; Desmond Tutu, ‘Reflections on Moral Accountability,’ International Journal of Transitional Justice 1(1) (2007), 6.

⁸ Philippe Kirsch, ‘Applying the Principles of Nuremberg in the International Criminal Court,’ Washington University Global Studies Law Review 6 (2007), 501, 502; see also M. Cherif Bassiouni and Daniel Rothenberg, ‘Facing Atrocity: The Importance of Guiding Principles on Post-Conflict Justice’ in The Chicago Principles on Post-Conflict Justice (International Human Rights Law Institute Chicago, 2009), 2.

There is a close link between globalisation and the ascendance of human rights in the international system – that is, the global constellation of sovereign states constituting various political, social and economic organisations (like the United Nations and its various organs) but also some non-governmental organisations, and the development of transitional justice in the period after World War II. International humanitarian law has impacted the development and operationalisation of transitional justice norms and practices. The global interest in the institutionalisation of human rights in the international system has been a major impetus for the development of transitional justice in the contemporary period.⁹

⁹ Kathryn Sikkink, The Justice Cascade: How Human Rights Prosecutions Are Changing World Politics (W. W. Norton & Company Inc. New York, 2011), 16–20.

This chapter considers how the age of human rights has directly impacted the diffusion of transitional justice norms, theory and practices. It discusses the influence of two main branches of international law – international humanitarian law (including the Geneva and Hague Conventions¹⁰ which are very important precursors of what we know today as transitional justice) and international human rights – on the ascent and shape of transitional justice. The chapter is divided into four sections. The first examines the challenges of defining transitional justice and articulates a definition of it for this book. The second considers the origins of transitional justice in ancient times. The development of transitional justice in modern times is discussed in the third section, which examines the diffusion of human rights and democratisation through the international system. The fourth section focuses on the concept of accountability, an important force in the development of transitional justice.

¹⁰Laws and Customs of War on Land (Hague IV); 18 October 1907, entered into force 26 January 1910.

Defining transitional justice

Before moving into a discussion of the origins and development of the field, it is useful to first define our subject – what is transitional justice? As with a number of concepts, there is no settled definition of transitional justice.¹¹ Defining ‘transitional justice’ is a challenge that goes beyond semantics; it actually foreshadows the nature and challenges of the field. On the semantic level, the conjunction of the two words ‘transitional’ and ‘justice’ is problematic. ‘Transition’ (and its derivative, ‘transitional’) suggests a movement from one state of affairs (the past) to a new one (the present/future). So it refers to an intermediate period of sorts; a stage in a process of change or transformation. The question is, of course, when the transition starts and when it ends, and when the new state of affairs becomes established. In other words, is the transformation completed? What should the society in question take along and what should it leave behind? This is usually not answered with any precision, not least because, as Naomi Roth-Arriaza points out, ‘in practice [the process] “transition” may cover many decades and may last longer for some issues than for others.’¹² Thus, for instance, trials of alleged violators or a truth-seeking process may take a few years while institutional reforms like democratisation may take much longer. It is important to note in this regard that transition should not be looked at as a simple linear process.¹³

¹¹Tricia D. Olsen, Leigh A. Payne and Andrew G. Reiter, Journal of Peace Research 47 (2010), 803, 805.

¹²Roth-Arriaza note 4.

¹³With reference to post-authoritarian transitions, for instance, Thomas Carothers has argued that the process is complex and beset with numerous problems and it is difficult to determine what transitioning results into or becomes resolved as transformation. See Thomas Carothers, ‘End of the Transition Paradigm,’ Journal of Democracy 13(1) (2002), 6.

The term ‘transition’ or ‘transitioning’ remains a problematic one in transitional justice debates. This difficulty is due in part to the sometimes unpredictable and always contested nature of transitional justice processes. Transitional justice processes often take on a life of their own, taking a route different from that intended by its designers. At other times, transitional justice concerns (such as demands for trials or compensation) are resuscitated and gain traction in societies where it appeared that political forces had managed to close the book on the past. An important example is the Khmer Rouge trials by the Extraordinary Chambers in the Courts of Cambodia (ECCC), informally known as the Khmer Rouge Tribunal, that started hearings in 2007 in Cambodia. The Khmer Rouge Tribunal was established in 2006 with the assistance of the United Nations. It is a hybrid criminal tribunal set up to administer international and domestic law in the prosecution of those most responsible for one of the worst genocides of the 20th century: the killings of an estimated 1.7 million people (about a quarter of the population) between 1975 and 1979 during the Pol Pot regime.¹⁴ More than 25 years after the genocide, justice was finally being sought.

¹⁴On the ECCC, see Extraordinary Chambers in the Courts of Cambodia (ECCC), ‘Introduction,’ available at: https://www.eccc.gov.kh/en/introduction-eccc (accessed 01 May 202...

Table of contents

• Cover
• Half-Title
• Title
• Copyright
• Contents
• Table of international instruments
• National legislation
• Table of cases
• Abbreviations
• Notes on contributors
• Acknowledgements
• 1 Origin, context and development of transitional justice
• 2 Victims, victimology and transitional justice
• 3 Peace versus justice and rule of law debates in transitions
• 4 Prosecutions for abuses and gross violations of human rights
• 5 Truth commissions
• 6 Lustration and the personnel reform of the state
• 7 Reparations
• 8 Transitional justice and ‘local’ justice
• 9 The case for judicial accountability in transitional societies
• 10 Gender and transitional justice
• 11 Political economy and transitional justice
• 12 Apology, reconciliation and the politics of memory
• 13 ‘Measuring’ transitional justice: Impacts and outcomes
• Index