Transitional Justice

"Transitional justice," says Rohee Dasgupta, our instructor at Saint Paul University, "is a process where extremely violent societies try to change and address past wrongs and injustices in order to build a better, even if not entirely ideal, future."

When there's been a period of mass direct or structural violence, like during a war or a repressive regime, moving into a new era hopefully marked by a more inclusive or democratic path often involves setting up legal mechanisms to assist the transition. This is what's typically referred to as transitional justice (TJ).

Transitional justice involves major changes in society, often including structural changes like rewriting the constitution, creating a parliamentary system or placing limits on executive or military power. Broader changes may be aimed at including formerly marginalized sectors into public life through privileging civil society or a free press. Much is often made of reconciliation and dialogue efforts, as described in our ninth class.

A great deal of the conversation around transitional justice revolves around the relationship between the local, the national and the international, with parties advocating for greater emphasis on different levels. In major cases, like after some of the major genocides of the 1990s, bodies like the International Criminal Tribunals for Rwanda (ICTR) and the former Yugoslavia (ICTY) were set up to try to coordinate linkages between community and international processes.

Each case has its own unique features, like Rwanda's gacaca courts, which have been framed as a community-level tribunal process rooted in tradition. South Africa's truth and reconciliation commission (TRC), a process described at length in our ninth lecture, set a new standard for gathering and including testimony in formal processes, as well as giving victims, perpetrators and bystanders a platform to share their stories publicly. Sometimes these processes are linked to religious imperatives like forgiveness and redemption, others are framed in more strict legal terminology.

TJ processes are as unique as the transitions that give rise to them, and while many criticisms have been levelled at their ability to bring peace, they're meant to work towards the creation of a new society. They can't deliver on that promise overnight. Prospective success is thought to be linked to factors like transparency, inclusion, feasibility, and perceptions of legitimacy. Prosecutions are a key part of this, as legitimacy is often connected to whether justice is seen to have been done, with perpetrators brought before the courts. Truth commissions, in addition to doing reconciliation work, act as fact-finding mechanisms that collect testimony from victims, perpetrators and bystanders – three roles which often blend into each other.

This often leads to questions of reparations. Ideally, the type, kind and recipient of reparations are determined through a close analysis of commission findings and fair legal proceedings, though corners can be cut. Reparations programs are often state-sponsored and aimed at repairing, or at responding, to the material or moral damages done by the past regime. These can be material or symbolic in nature, and common acts of reparation involve financial compensation, land reform, public apologies, the erecting of memorials, storytelling and other measures.

The acts of memorialization and storytelling are particularly important when looking at issues of identity. Narratives and collective memory, as described in our third class, often lay the foundation for violent conflict and so need to be addressed in order to create a less violent future. Psychoanalyst and conflict researcher Vamik Volkan described, in his book Killing in the Name of Identity, the different functions physical memorials can represent – the American memorial to Vietnam war victims, for example, was meant to include diverse stories and generate national solidarity, while others like the post-Soviet South Ossetian "Crying Father" monument is more conducive to keeping past traumas "hot." Transition processes often try to create memorials in order to preserve the public memory of victims, raise the collective moral consciousness, "forget" exceedingly hot divisions or perhaps signal the kinds of values that the new administration will promote.

Ideally, as mentioned above, markers of success would include a decrease in levels of direct or structural violence in a given society. Inequalities connected to race, geographical location, ethnicity, religion can be addressed – regulations addressing gender inequality are increasingly added to the agenda. Success is also measured in the degree of buy-in not only from locals but also from elites and relevant diaspora communities.

The creation of a police force perceived as neutral and serving the public good is also important, and many transitional UN missions are oriented around police training. There's also the matter of reintegrating armed forces into society, as well as the people who have been displaced by violence. Many conversations are also had about educational reforms as well as what narratives to privilege concerning the past – whose story is told, whose perspectives are included in that story, and in what way are legal, social and cultural institutions structured to support this story?

Another aspect of the transitional process involves taking reasonable steps, in the context of criminal justice systems, to prevent human rights violations in the future. This may involve ratifying international conventions on human rights or crimes against humanity, as well as making an example of those who cross certain red lines. Setting the penalties for such violations is important because they need to be considered legitimate and just rather than arbitrary or dictated by the whims of an interim administration.

In short, transitional justice is a term used to refer to an incredibly broad number of mechanisms. Its stated purpose is not to promote reconciliation per se, but it facilitates the possibility of peace and reconciliation. Liberal interpretations of TJ involve the creation of functioning democracies with stable sectors pertaining to criminal justice, human rights, politics, law, reforms, security and memorialization. There is plenty of debate in the field and associated literature, and much of it takes place over how best to achieve these ambitions.

There are plenty of challenges to a process like this, though, some of which are connected to identity dynamics. For example, the neutrality of these mechanisms needs to be affirmed and displayed at every opportunity, because victimized or triggered identity groups may need to be convinced that inclusivity is more than just a word and that these structures will not be used to marginalize or oppress them.

Some of the aspects of transitional justice most impacted by identity dynamics are the mechanisms facilitating the expression of deep-seated emotions over the course of collecting testimony in the name of truth-seeking.

This is a complex area because there are different elements that can appear to conflict with each other. The first are the auspices of 'objective' fact-finding often associated with criminal justice systems – or at least the desire for objectivity. But alongside that there's the need to understand subjective experiences of victimization if we want to comprehend the real impact of a regime or period of violence. How to find space for both the objective and the subjective?

There's a certain anxiety over what place emotion occupies in this process. Because TRCs and TJ advocates are trying to uncover what's been repressed, what hasn't been given voice, and this usually involves pain and other strong feelings. That said, emotions are framed by some as hotbeds of bias and narrative – how do we balance the need to express hurt while also seeking for the nuances that often get obscured when speaking about immense pain?

Others might counter this kind of narrative with a reminder that listening to people's pain can be a way of encountering truths that have long remained hidden. Finding some kind of balance between the two (or wondering what place balance should have, or who should define what's considered balanced or not) is tricky.

One criticism of truth commissions is that it can be hard to evaluate to what extent the stories told corroborate with established facts. Victims need to be given a platform to share their side of the story, but important nuances can legitimately get lost. Rwanda's gacaca courts, because of how widespread and at-times unregulated they were, were vulnerable to opportunists looking to accuse their neighbours for their own interests. In such cases, whose job is it to decide where the truth lies or when emotions are being used to manipulate public opinion, even if unintentionally?

These tensions often emerge because there are different processes at work. The overarching legal system is looking for 'objective' ways to fit narratives into a bigger picture, but certain community processes may value a kind of exorcism (sometimes literally) that privileges people's felt pain and experience as a way to recover from mass violence.

These different needs can clash when testimony processes are subsumed into the legal process and interpreted as evidence, like when tribunals decide on cases involving perpetrators or on appropriate reparations.

That said, transitional justice processes have laboured to create space for sharing and valuing emotional stories, ones that often get amplified by the media. This was the case in South Africa, the former Yugoslavia, Rwanda and Cambodia – viewers throughout the world may have felt more connected to the proceedings because of the electrifying testimonies that were given major airtime.

Who selects which testimonies get more attention, however, is an important question. Because certain stories, when privileged above others, build a specific narrative of what happened on the ground. Even today, there are Serbs who resent the feeling of being villainized more than other groups in the Balkan wars – some point to the privileging of Bosniak or Croat stories during transitional processes over those of Serb victims who suffered at their hands or during the NATO bombings.

This is where identity comes back in: if your identity group feels marginalized during the truth-telling process, then the results of these commissions and processes may be seen as insufficiently legitimate moving forward. Sometimes you get cases, like in Germany, where the story of past atrocities are told in schools, but in many other cases historical narratives and selective memory are institutionalized long into the future.

Sometimes the language of narrative and reconciliation can even be co-opted by later actors to serve their own purposes. Rwanda is an interesting situation, where political opposition groups claim they are suppressed by the government because of claims of "genocide ideology." In cases where one narrative is privileged over others, terms like "genocide ideology" can be constructed in marginalizing ways and weaponized against one's opponents. Striving for neutrality in the transitional justice process can help mitigate these opportunities.

This "narrative reconstruction" of society takes place on all sorts of levels, from how the government is reconstituted (are all actors represented in the parliament?) to the writing of history textbooks (whose stories are privileged?). This is a subtle set of mechanisms to keep track of, especially during volatile transition periods.

Working with narratives and histories aren't only limited to the local context, however. The history written about transitional justice itself, and how it gains legitimacy through time, is also a matter of intense interest.

Legal scholar Ruti Teitel describes transitional justice as having gone through three historical phases. The first was right after the second world war, as the UN was also taking shape, with the Nuremberg trials that attempted to hold high-ranking Nazi officials accountable for various crimes against humanity. With the emergence of the Cold War, transitional justice as a post-conflict reconstruction strategy fell dormant until the early 1990s, when the collapse of the Soviet Union changed the international landscape and opened up new options for transitional processes.

The mid-1990s saw the rise of a number of cases that would go on to become pillars of transitional justice discourse, including the South African TRC as well as the establishment of the ICTR and ICTY. This, according to Teitel, was the second wave of TJ activity and discourse. A third wave, which we are currently living through, is said to be defined by globalization and an attempt to develop more linkages between the global and the local.

Each TJ process, and the related tribunals that came with it, has been unique and a source of new lessons or standards. International law has evolved enormously since the Nuremberg trials or even the genocides in Rwanda or Bosnia. It will take years to determine the extent of their impact, as well as those of processes in the Middle East, Asia and South America, but there have been many who have displayed great optimism for what can be accomplished.

That said, a main trait of the transitional justice process is that these processes often have to come at the invitation of the governments involved, or in the wake of state collapse. This creates a major dilemma: TJ processes are meant to establish the truth of either a violent conflict or an oppressive regime, and this type of regime typically doesn't invite commissions to come in to establish truth or set up a transition.

There are cases where TJ processes are a result of internal transitions, like in South Africa, or in official (if contested) attempts at reconciliation, like in Canada. There are many more cases, however, where transitional justice mechanisms are triggered after periods of violent revolution, humanitarian intervention or other forms of military victory, as happened in Rwanda and the former Yugoslavia.

The ideal of consent is key but entirely fraught. Respecting a country's sovereignty is important, and so grave conditions (like genocide) are a prerequisite for intervening in a way that would open up the possibility for transitional justice but also come at the cost of local autonomy. This is, in part, why there is such controversy over whether or not to call Chinese treatment of its Uyghur minority genocide – since so many countries have declared to "never again" be bystanders to atrocity, there are hints in this kind of language of a moral duty to act on the Uyghur's behalf.

There's also the issue or whether or not there are ulterior motives behind self-described humanitarian interventions, as was claimed by many concerning the US invasion and occupation of Iraq in the 2000s. One point discussed in the literature mentioned below was whether ongoing instability in that country was due to the lack of nation-wide, locally-owned TJ structures following the fall of Saddam Hussein and his government.

Traditional liberal conceptions of transitional justice are also challenged by what's becoming known as authoritarian conflict management (ACM), which will be mentioned in brief in our next lecture on conflict management. ACM, rather than privileging inclusion, democratic structures and institutional power-sharing, advocates for centralization of power and other authoritarian measures aimed at consolidating executive power and manufacturing stability.

The participation of a country's executive power is important in the TJ process, because there needs to be a certain amount of acceptance for the new system to prove resilient. A given executive's resistance to TJ measures is often what makes certain commentators throw up their hands – if TJ is dependent on elite participation in a process that will divest them of powers they're misusing, then what can incentivize the process other than complete collapse? What, then, can the true reach of TJ be?

Powerful countries with Security Council status, like China, Russia or the United States, are less likely to be pressured into processes like TJ, as are nuclear powers like India or Pakistan, though international coalitions attempt to do so using soft power or sanctions regimes. These strategies come with their own consequences, however, and the question remains as to how to pressure stable executives into incorporating "threatening" voices or diverging claims to institutional power.

One of the prominent debates in the transitional justice literature has to do with the relationship between the local and the global. The "global" often refers to the international criminal justice system, which evolved in great part, as mentioned above, during the transition into the midcentury post-war period. This was also a time of colonial dominance, meaning that many of the pioneers of international law were European or otherwise Western.

Many of the principles elaborated during this period were described as universal, such as the 1948 Universal Declaration of Human Rights (UDHR), but such declarations are controversial because they raise questions like who decides on universality, and what happens when different claims to universality emerge?

Nevertheless, Rohee says, no matter how much we critique universal language, it has nevertheless proved relevant. This is in part because many of these 'universal' norms have local significance, addressing needs such as for food, water and other basic standards of survival. Consensus may not exist regarding all 'universal' concepts, but this is because consensus is not a fixed thing – as we go on developing and testing new norms, their salience may be established with time.

The fact that transitional justice mechanisms are becoming more accepted over time has led to a growing consensus that post-conflict reconstruction demands a transitional process. It has also been claimed that TJ processes are becoming more inclusive, since lessons are being taken from the experiences of the Global South, particularly from states in Africa and Central America.

But this universality faces challenges from a number of points. The first comes from nations that prefer an ACM approach, where transitions are managed less out of principles like inclusivity, truth-seeking or dialogue and more out of authoritarian measures meant to keep the peace and restore stability.

The second comes from voices concerned that lessons learned from prior transitional processes and TRCs are going to be less relevant in new contexts. The South African process, for example, utilized a common religious heritage (Christian) and leaned into language of forgiveness and redemption – other religions might highlight other values instead. Other transitional contexts also involve groups belonging to different spiritual traditions, limiting the ability for religion to serve as a rallying flag for the process.

Third, there are claims that, even though there are attempts to localize TJ processes, there's still an imbalance of power in favour of international norms. The Rwandan gacaca courts are often at the center of these debates – some say that they were an example of elevating traditional formats alongside modern ones, while others say that they were hastily (and sloppily) maintained and didn't have a substantive connection to the traditional values they're associated with. Then there's the claim that, even when a TRC incorporates hundreds of victim voices, the vast majority of the populace aren't touched by the process and go about piecing together their lives in at-times isolated communities.

These tensions lead to questions over whose justice is being implemented. This also means that the positive stories emerging from transitional processes, and the histories constructed from them, are also challenged – whose histories are these? Are they written in the capital? In villages? In cosmopolitan centres far from the states involved? What political levers or metanarratives are in play, and how do observers pierce through the noise to find out what's happening on the ground?

This inability to know how locals perceive TJ processes is heightened in cases like Cambodia's, where many victims of the Pol Pot regime were rural and sometimes illiterate. Local narratives of justice, guilt or reconciliation may exist in parallel with those advocated by the international community, and building linkages between these contexts in a short period of time is intensely difficult. How do you advocate an understanding of justice on behalf of such victims?

While some may see this as a failure of transitional justice processes, others say that they're still a work in progress that have seen major developments even in their imperfect form. The degree to which broader global processes can or will be adapted to local contexts is still being explored and it can take decades to reach certain breakthroughs.

Even with these critiques, TJ has proved its resilience through helpful (even if not entirely ideal) processes in Rwanda, Bosnia, Cambodia, Sierra Leone and others – it provides at least some guidance with how to approach changes in violent regimes in a way that didn't exist half a century ago.

One of the most enduring conversations in the TJ field, however, and one that extends into the wider peacebuilding field in general, is expressed in what's called the justice vs. peace debate. At its core are critiques that the desire for a relatively stable transition sometimes comes at the cost of human rights advocacy or protection.

The protection of human rights is the 'justice' component – given the mass violations during the preceding conflict or regime, punitive interpretations of justice demand that perpetrators pay for what they did. This is the "crime doesn't pay" voice in the debate, privileging the experiences of victims and demanding that violators be brought to justice. Coming from this angle, mechanisms of amnesty are deeply troubling.

Amnesty refers to pardons for perpetrators, especially when given as part of a transitional process like a TRC. Many transitional processes, instead of ostracizing all members of the former executive, strive to "draw a line under the past" and privilege the construction of a common future over exacting punitive justice over past wrongs. This is often done due to concerns that punishing all offenders in traditional ways might either not be feasible (they are too many), or might result in another cycle of violence (they are too powerful). This is the 'peace' component of the debate: establishing how much punitive justice is possible without spilling back into war.

For human rights defenders, though, this framing has often been unacceptable – what was 'sacrificed' on the altar of peace was often the experience of marginalized populations. While this tension remains relevant for most TJ processes, there have been different ways of attempting to address it.

One way is through exploring different traditions of justice. One alternative to the punitive approach is restorative justice, where the emphasis is removed from punishment and placed on making amends. In this tradition, perpetrators are required to address the consequences of their actions in an effort to restore the social fabric and integrate once more into their community.

Another way of relieving this tension is by incorporating victim voices in peace processes and traditional justice mechanisms. TRCs were developed as a way to do just this – having victims stand face to face with their victimizers to tell them their hurts. The Colombian peace process with the rebel FARC group was applauded for its inclusion of victims in official proceedings. There are criticisms centered around how important the victims actually were (or if they were mere 'tokens' for the benefit of the international community), and this is something that continues to be explored.

In many cases, like in South America and Rwanda, low-level perpetrators were often given amnesty in return for facts. These facts were often used to build cases against higher-level officials (who were often denied amnesty, unless they were able to help prove that the high executive were involved in a given bout of violence), but they could also reveal what happened to victims' loved ones or the location of graves.

The issue of deciding the 'red line' after which amnesty will not be an option is fiercely debated. The 'big three' include crimes against humanity, genocide and war crimes, but other processes include rape, incitement to violence and other crimes.

This is especially controversial given the fact that granting amnesty to a perpetrator may feel, to a victim, like their pain doesn't exist. So finding ways to affirm both the damage done and the desire to rebuild a common future is one of the thornier challenges of transitional programs. Some solutions have been tried in places like Cambodia, El Salvador and others, and best practices are assembled through the years. And even if we do find ways to balance both of these needs in one context, new solutions will still have to be found in other cases.

Each transition is unique, as are the difficulties that come with it. This means that scholars of transitional justice continue to work towards finding relevant, standardizable practices while still leaving space for local solutions. Some processes, it goes without saying, succeed in working towards this balance better than others – and so these tensions will evolve, transform and shape TJ mechanisms years into the future.