Can transitional justice also be transformative? How do we differentiate between these two concepts, and how can the question be operationalised?

This paper does two things: First, it outlines an analytical framework for assessing the broader social effects of transitional justice (TJ). Second, it explores a more limited meaning of ‘transformative’, but one that can prepare the ground for a broader social transformative process. I argue that, under certain conditions, TJ can be transformative if it changes individual/societal behaviour in a positive direction or leads to structural change that affects individual and societal behaviour. Looking only at formal institutions we could envision something like the following:

(1)   Affective value: Trials conducted against alleged human rights perpetrators could, in a best case scenario, not only prescribe punishment for crimes committed but also increase people’s faith in justice and the justice system and hence strengthen a culture and practice of accountability in the long run.

(2)   Institutional reform: Recommendations of truth commissions could lead to law reform or institutional reform that would increase access to justice more widely, beyond the individuals or groups targeted directly by TJ efforts. Police reforms in the wake of a TJ process could strengthen a key institution to uphold the rule of law.

(3)   Rights-based political processes: If constitutions are revised so as to broaden standing before the Constitutional Court and access to redress is increased as a result, this could benefit a wide range of rights (health, environment, education etc). This in turn may, in the long run, enhance structural change and reduce inequality. Police reforms would benefit the population writ large and could have future spin-off effects such as more respect for human rights in general. Law revision initiated to benefit marginalised groups in a conflict could have larger societal benefits.

In conclusion, various TJ efforts have potentially these wider positive effects beyond the immediate goals of the specific TJMs. However, we should not reasonably expect TJ to have a transformative justice agenda. Other policy measures and processes will have to be put in place to generate deep societal change. TJ can aid, but not solely drive, these processes.

Elin Skaar

Senior Researcher, Coordinator: Rights and Legal Institutions