Part 1:
What is transitional justice? A basic introduction

What is transitional justice?

According to the International Center for Transitional Justice 'Transitional justice refers to a range of approaches that societies undertake to reckon with legacies of widespread or systematic human rights abuse as they move from a period of violent conflict or oppression toward peace, democracy, the rule of law, and respect for individual and collective rights. In making such a transition, societies must confront the past in order to achieve a holistic sense of justice for all citizens, to establish or renew civic trust, to reconcile people and communities, and to prevent future abuses.'

A variety of transitional justice mechanisms can help wounded societies start anew. These approaches are both judicial and nonjudicial, and they seek to encompass the various dimensions of justice that can heal wounds and contribute to social reconstruction. Transitional justice incorporates a realistic view of the challenges faced by societies emerging from conflict or repression and an appreciation of their unique cultural and historical contexts, without allowing these realities to serve as excuses for inaction. All stakeholders in the transition process must be consulted and participate in the design and implementation of transitional justice policies. The approaches to transitional justice are based on a fundamental belief in universal human rights and rely on international human rights and humanitarian law in demanding that states halt, investigate, punish, repair, and prevent abuses. These initiatives focus on the needs of victims and their families.

The main approaches to transitional justice include the following:

• Domestic, hybrid, and international prosecutions of perpetrators of human rights abuse.
• Determining the full extent and nature of past abuses through truthtelling initiatives, including national and international commissions.
• Providing compensatory, restitutionary, rehabilitative, and symbolic reparations to victims.
• Institutional reform, including vetting of abusive, corrupt, or incompetent officials from the police and security services, the military, the judiciary, and other public institutions. (Vetting refers to the process of excluding from public employment those known to have committed human rights abuses or to have been involved in corrupt practices.)
• Promoting reconciliation within divided communities, including working with victims on traditional justice mechanisms and facilitating social reconstruction.
• Constructing memorials and museums to preserve the memory of the past.
• Taking into account gendered patterns of abuse to enhance justice for female victims.

 

In this section (Part I) we will explore five central transitional justice mechanisms:

1. Trials or criminal prosecutions
2. Amnesties
3. Truth commissions
4. Reparations
5. Local justice initiatives

What are trials or criminal prosecutions for human rights violations?

The International Center for Transitional Justice argues that 'the investigation and prosecution of international crimes—including genocide, crimes against humanity and war crimes—is a fundamental component of transitional justice.'

It has roots in international legal obligations that can be traced back to the Nuremberg trials, and continue with the International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR).

Investigations and trials of powerful leaders (whether political or military) help strengthen the rule of law and send a strong signal that such crimes will not be tolerated in a rights-respecting society.

Trials remain a key demand of victims. When conducted in ways that reflect victims’ needs and expectations, they can play a vital role in restoring their dignity and delivering justice.

But prosecutions cannot achieve justice in isolation. The large-scale nature of such crimes means that they often cannot be processed through the ordinary criminal justice system—generating an "impunity gap." Effective prosecution strategies for large-scale crimes often focus on the planners and organizers of crimes, rather than those of lower rank or responsibility.

Implementing prosecution strategies with other initiatives—such as reparations programs, institutional reform, and truth-seeking—can help fill the "impunity gap" by addressing crimes with large numbers of victims and perpetrators.

Domestic Prosecutions

Prosecutions for international crimes have more potential for impact when they are held domestically, within the society where the crimes occurred. However, societies emerging from conflict or in transition may lack the political will to prosecute these crimes, and legal systems may be in disarray.

Even sophisticated legal systems—which mainly deal with ordinary crimes—may lack the capacity to effectively address such crimes.

These problems may require international assistance that draws on best practices from elsewhere—for instance through “hybrid” courts or tribunals, composed of international and domestic justice actors. Such courts have been created in Sierra Leone, Kosovo, Bosnia, Timor-Leste and Cambodia.

International Criminal Court

In 2002, the Rome Statute established the International Criminal Court (ICC). The ICC investigates and prosecutes individuals responsible for genocide, war crimes and crimes against humanity committed since July 1, 2002—in cases where countries are unwilling or unable to do so.

Domestic courts have the main duty to deliver justice, and have in recent years increasingly taken up this role. The ICC is a court of last resort.

What are amnesties?

In practice, the term “amnesty” is used rather loosely. In the Research Brief Amnesties and DDR Programs, Mark Freeman states that 'Amnesty may be defined as a legal measure, adopted in exceptional circumstances, whose primary function is to remove, conditionally or unconditionally, the prospect and sometimes the consequences of a legal proceeding against designated individuals or classes of persons in respect of designated types of offenses.'

There are at least four broad types of amnesty that could apply in situations in which a DDR program is in place or under consideration:

• Amnesties that are designed as part of a DDR process but that grant a very broad scope of impunity to former combatants, thus tending to facilitate disarmament and demobilization.
• Amnesties that are designed as part of a DDR process but that grant a more narrow scope of impunity to former combatants, thus potentially complicating disarmament and demobilization.
• Amnesties that are not designed as part of a DDR process but that grant a very broad scope of impunity to former combatants, thus tending to facilitate disarmament and demobilization.
• Amnesties that are not designed as part of a DDR process but that grant a more narrow scope of impunity to former combatants, thus potentially complicating disarmament and demobilization.

What are truth commissions?

According to the International Center for Transitional Justice 'Truth commissions are non-judicial inquiries established to determine the facts, root causes, and societal consequences of past human rights violations. Through their focus on the testimony of victims of atrocity, truth commissions provide acknowledgement and recognition of suffering and survival to those most affected.'

The findings and recommendations of commissions can contribute to criminal justice, reparations, and institutional reform processes to redress past abuses and prevent new ones from occurring. In doing so, they provide an opportunity for divided societies to begin the process of rebuilding civic trust among citizens and in the institutions in place to serve them.

Truth commissions are evolving institutions: their focus is expanding to cover more types of violations, going beyond crimes against physical integrity to examine violations of economic, social, and cultural rights. They are also becoming more adept at capturing and addressing the experiences of different sectors of the population, including those of women, children, and indigenous peoples.

What are reparations? 

When it comes to reparations and transitional justice, the International Center for Transitional Justice states that 'Reparations acknowledge the legal obligation of a state, or individual(s) or group, to repair the consequences of violations — either because it directly committed them or it failed to prevent them. They also express to victims and society more generally that the state is committed to addressing the root causes of past violations and ensuring they do not happen again.

With their material and symbolic benefits, reparations are important to victims because they are often seen as the most direct and meaningful way of receiving justice. Yet, they are often the last-implemented and least-funded measure of transitional justice.'

It is important to remember that financial compensation — or the payment money — is only one of many different types of material reparations that can be provided to victims. Other types include restoring civil and political rights, erasing unfair criminal convictions, physical rehabilitation, and granting access to land, health care, or education. Sometimes, these measures are provided to victims’ family members, often children, in recognition that providing them with a better future is an important way to overcome the enduring consequences of the violations.

Reparations can be implemented through administrative programs or enforced as the outcome of litigation. Oftentimes, they overlap and compete for state resources with programs against poverty, unemployment, and lack of access to resources, like land. In these situations, reparations should be designed and implemented in ways that can transform previously unequal and unjust relations.

Reparations can also take the form of revealing the truth about the violations themselves and providing guarantees that they will not be repeated. Symbolic reparations – such as apologies, memorials, and commemorations – can be just as beneficial, healing, and meaningful as material reparations.

What is local justice?

In the Research Brief Local Justice and Reintegration Processes as
Complements to Transitional Justice and DDR, Roger Duthie argues that 'Justice measures at the local level in post-conflict societies have attracted a growing amount of attention in recent years. Local justice is sometimes presented as an alternative to or substitute for other measures of transitional justice, often due to political, cultural, or practical considerations. This chapter argues that local justice addresses the (comparatively neglected) reintegration aspect of disarmament, demobilization, and reintegration (DDR) programs more directly, quickly, and efficiently than other transitional justice measures. It examines how local justice processes can best complement DDR efforts without foreclosing other transitional justice measures.'