Since the 1980s, transitional justice has moved away from being a peripheral concern to become a ubiquitous feature of societies that are recovering from mass conflict or repressive rule–and is now a key component of humanitarian and development interventions. It is informed by a liberal and redemptive teleology of history as progress, according to which the reparation of past harms produces a non-violent future characterized by “sustainable peace” ( UN 2012: 3), democracy, a culture of human rights, and respect for the rule of law ( UN 2012; UN 2004).
Transitional justice refers to a range of instruments (often used in combination) that are enshrined in both domestic and international (human rights and humanitarian) law, including truth-telling and truth commissions, public apologies and forgiveness, memorialization and commemoration, pardons and amnesties, compensation, restoration, restitution (of land and property), international and regional criminal courts and tribunals, lustration and vetting, and legal and institutional reforms. Among the best-known transitional justice processes of the last decades are the South African Truth and Reconciliation Commission, Argentina’s reparations to victims of its military regime, the prosecution and conviction for crimes against humanity and war crimes of Liberian ex-President Charles Taylor, by the Special Court for Sierra Leone, and the International Criminal Tribunal for the former Yugoslavia.
The paradigm of “transition,” embedded in the concept of transitional justice, is a product of the late 1980s to mid-1990s and the unfolding “worldwide democratic revolution” triggered by the end of the Cold War, and the “triumph” of economic and political liberalism (Hazan 2010: 50; Carothers 2002). While its legitimation can be traced back to the post-World War II war crimes and Holocaust trials (Teitel 2000), the “justice” of transitional justice was shaped by a renewed emphasis on human rights and judicial remedies to mass violence (Palmer, Clark and Granville 2012). In the post-Cold War period, the moral imperative propagated by human rights discourses combined with humanitarian action to defend individual (and, to a lesser extent, collective) rights.
The demarcation between “conflict” and “post-conflict” and the conception of a “toolbox” approach for managing mass crimes are central to this moral imperative. Such a toolbox approach has been widely criticized, notably for its over-reliance on legalistic, institutionalized measures and a top-down method (Palmer, Clark and Granville 2012) as well as its entrenching of a disconnect between international legal norms and localized priorities and practices (Shaw, Waldorf and Hazan 2010). Even in supposedly informal truth-seeking settings, such as the Rwandan gacaca (a mechanism of community justice), the unequal equation of culture, power, and the influence of international actors shapes how mass violence and memory are handled. These critiques demand a question about whose transitional justice measure should be considered; by whom, for whom, and for what (Jansen 2013).
The increased emphasis on global security after 2001 was accompanied by the normalization, institutionalization, and bureaucratization of transitional justice through various judicial fora (e.g. international criminal courts and tribunals, but also mass claims and quasi-judicial procedures) and increased United Nations involvement (most notably in East Timor and Kosovo) (Rubli 2012; Teitel 2014). Transitional justice shifted from a moral and legal duty to an instrumentalized tool of peace-building (Subotić 2012; Vinjamuri 2010), operating as a short-term technical and legal reform unfolding mainly at the institutional level of politics (Arthur 2009). Such transitional justice mechanisms often lose sight of their initial moral impetus and broader objectives. The teleological premise of transition becomes an end in itself, legitimating both exceptional measures and their perpetuation.
References
Arthur, P. (2009) How “Transitions” Reshaped Human Rights: A Conceptual History of Transitional Justice. Human Rights Quarterly, 31: 321–367.
Carothers, T. (2002) The End of the Transition Paradigm. Journal of Democracy, 13: 1–21.
Hazan, P. (2010) Transitional Justice After September 11: A New Rapport with Evil. In: Shaw, R. , Waldorf, L. , Hazan, P. eds. Localizing Transitional Justice: Interventions and Priorities After Mass Violence. Stanford University Press.
Jansen, S. (2013) If Reconciliation Is the Answer, Are We Asking the Right Questions? Studies in Social Justice, 7(2): 229–243.
Palmer, N. , Clark, P. , Granville, D. eds. (2012) Critical Perspectives in Transitional Justice. Intersentia, 8.
Rubli, S. (2012) Transitional Justice: Justice by Bureaucratic Means? Swiss Peace, Working Paper, 4.
Shaw, R. , Waldorf, L. , Hazan, P. eds. (2010) Localizing Transitional Justice: Interventions and Priorities after Mass Violence. Stanford University Press.
Subotić, J. (2012) The Transformation of International Transitional Justice Advocacy. The International Journal of Transitional Justice, 6: 106–125.
Teitel, R.G. (2000) Transitional Justice. Oxford University Press.
Teitel, R.G. (2014) Globalizing Transitional Justice: Contemporary Essays. Oxford University Press.
UN (United Nations) (2004) The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies. Report to the Secretary-General, Security Council.
UN (United Nations) (2012) Declaration of the High-level Meeting of the General Assembly on the Rule of Law at the National and International Levels. UN General Assembly, 67/1.
Vinjamuri, L. (2010) Deterrence, Democracy, and the Pursuit of International Justice. Ethics and International Affairs, 24(2): 191–211.