Transitional Justice
A User Guide to the Beyond Intractability System
Compiled by Eric Brahm
Beginning in the mid-1970s, an unprecedented number of states have attempted the transition to democracy. Many of these new governments have been confronted with a legacy of human rights abuses committed within their own borders. While, in the past, what states did within their borders was of little concern to the outside world, the horrors of the Holocaust led to the development of international human rights law. By the late 1970s, a growing network of global human rights NGOs were serving a watchdog role to hold states to these legal commitments. This is not to suggest that countries address past crimes only because of pressure from the international community. Governments do so for self-interested reasons as well, responding to pressure from voters or for revenge against former opponents, and on principled grounds.
Transitional justice mechanisms have taken different forms and have been used in different combinations. Parallel to the development of these different mechanisms has been the elaboration of a variety of conceptions of justice ranging from punitive or retributive justice, to procedural justice, to restorative justice. Each has its benefits and its costs.
Historically, the norm has been to do nothing about a history of human rights violations. We have, however, seen the evolution of a range of mechanisms that are meant, in some form, to address them. For many, trials remain the ideal solution for holding individuals accountable. It is the most punitive, which is satisfying for those wanting perpetrators to get their 'just desserts.' Trials hold individuals, rather than collectives accountable. If done properly, rules of evidence and other protections of the accused help ensure just outcomes.
Trials are not always feasible, however. The judiciary may be in poor shape or may even be complicit in the crimes of the past. Where abuses have been widespread, the judicial system may lack the capacity to handle the volume of individual perpetrators in a timely manner. What is more, evidence may be difficult to come by, because it was destroyed or events occurred far in the past. Similar problems exist for eye-witness testimony. There is also the danger that trials degenerate into 'kangaroo courts' where the government targets opponents. In rare cases where overwhelming pressure is brought to bear, the international community has created war crimes tribunals to provide a measure of accountability for violations of international human rights law.
Truth commission have emerged as a popular transitional justice alternative to trials. They are investigative bodies that seek to uncover the details of past abuses. Because they lack protections for the accused, they tend not to name individuals as suspected perpetrators, but focus on the institutional failings that allowed the crimes to occur and propose reforms to prevent repetition. Some assert truth commissions provide some measure of accountability by discrediting institutions and, by extension, individuals who led them. Their clearest benefit, according to supporters, is in the attention given to victims. In trials, the focus is on the accused, in protecting their rights. Truth commissions, by contrast, often allow victims to tell their story in a more relaxed setting, which many assert is theraputic. Similarly, it is often argued that the official acknowledgment provided by a commission's findings can help restore the dignity of victims. In providing an authoritative historical narrative, a truth commission's final report may help challenge different versions of history. Many assert the less confrontational nature and the attention to victims' needs make truth commissions better able to promote reconciliation.
In some instances, victims have been granted reparations as a form of justice for past abuses. In a few cases, monetary payments, whether in a lump sum or a monthly pension, have been provided. More common has been the provision of services. This may take the form of access to mental and physical health services or tuition breaks for education, for example. Frequently, however, countries with a history of human rights abuses are quite poor and face a host of difficult budgetary choices. As a result, reparations often take symbolic form such as constructing monuments or designating a national day in victims' honor.
Where large segments of the population were involved in past abuses, these mechanisms are often not practical. In former communist states where crimes were often less severe, but significant percentages of the population implicated, lustration has sometimes been pursued. This essentially involves a (usually temporary) ban on holding political or bureaucratic office as punishment.
Beyond Intractability Knowledge Base Materials
Online Resources
International Tribunals
Truth Commissions
Organizations
Stories
Book and Article Summaries
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