Justice

Transitional justice

Transitional justice is concerned with countries experiencing transition from authoritarian rule and/or conflict to democratisation and/or peace.  Countries experiencing such transitions often face a legacy of human rights violations.  Transitional justice is about the various judicial and non-judicial approaches to dealing with that legacy.  These approaches may have a variety of aims, such as to resolve the divisions in society caused by the human rights violations, to address and attempt to repair the impacts on individuals and society or to provide justice and satisfaction for victims. Wider institutional aims might be to restore the rule of law, to reform institutions by promoting human rights and democratisation, to ensure that human rights violations are not repeated and to promote a stable peace.  Recently, new approaches to transitional justice have also suggested that economic and social rights should be addressed as well as civil and political rights.

Page contents

Where is a good place to start?

International Institute for Democracy and Electoral Assistance Handbook Series, 2003, 'Reconciliation After Violent Conflict: A Handbook', International IDEA, Stockholm, Sweden.
This detailed handbook from the International Institute for Democracy and Electoral Assistance (IDEA) draws on reconciliation experiences from the last thirty years. A series of tools are presented which have been successfully used in reconciliation processes.
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Kritz, N., 2002, 'Where We Are and How We Got Here: An Overview of Developments in the Search for Justice and Reconciliation', in Henkin, Alice H. (Ed.), The Legacy of Abuse: Confronting the Past, Facing the Future, Aspen Institute, New York University School of Law.
It is increasingly recognised that societies that refuse to address the painful legacy of past abuses do so at their peril. The importance of dealing with historical demons is now broadly accepted. But how can the options available for dealing with them be fine-tuned and better coordinated? This research by the Aspen Institute shows that considerable work has been done to develop ways of solving these issues. However, the link between the methodologies and the reduction of violence is not yet clear.
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Context and non-state actors

The national and international context often has a crucial impact on attempts to achieve transitional justice.  This means that the selection and design of transitional justice programmes must be unique for each country.  Factors that affect the design of transitional justice approaches include the regime’s level of legitimacy and political security, its relationship with human rights violators, the strength of opposition groups, the activities of civil society and the presence of international actors.  The documents below discuss the impact of the international community and the potential for civil society engagement in transitional justice programmes.

Mani, R. 1998, 'Conflict Resolution, Justice and Law; Rebuilding the Rule of Law in the Aftermath of Complex Political Emergencies', International Peacekeeping, Vol 5, No. 3.
This article provides a useful assessment of how the international community can promote the rule of law in post-CPE situations. The author points to the need for greater coordination between international actors, for a clearer framework for putting the rule of law into practice, for international actors to respond to opportunities presented by particular stages in transition, and the need to pay more attention to the needs and culture of the local population.
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Wilson, R. A., 1997, 'The People's Conscience? Civil Groups, Peace and Justice in the South African and Guatemalan Transitions', Catholic Institute for International Relations (CIIR), London.
This is a useful analysis of two well-known case studies. The author evaluates the different strategies used by civil society groups to promote justice, claim civil, political, social and cultural rights and to build peace. The author demonstrates how the influence of civil society varies during different stages in the transition. The author concludes that though civil society groups may have to reinvent themselves in post-war contexts, their independent and critical role in transitional justice is vital.
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Poverty reduction and transitional justice

The transitional justice literature focuses almost exclusively on addressing past civil and political human rights violations and war crimes.  Whilst these issues are of fundamental importance, the publications below suggest that social and economic rights deserve more attention in periods of transition.

Mani, R. 2002, Beyond Retribution: Seeking Justice in the Shadows of War, Polity Press, Cambridge in association with Blackwell Publishers, Oxford.
This book by the Centre for Humanitarian Dialogue in Geneva examines how to restore justice in low-income post-conflict societies. It looks at the theories of justice, and using examples from Africa, Asia, Latin America and Eastern Europe, the results of their practical application during the period 1989 to 1999.
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Alexander, J., 2003, A Scoping Study of Transitional Justice and Poverty Reduction, Final Report for DFID.
Using DFID's approach to poverty reduction, Jane Alexander suggests that effective transitional justice may be essential for targeting poverty in its widest sense, including vulnerability, powerlessness and discrimination as well as material disadvantage.
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Truth commissions, trials and other mechanisms

The transitional justice literature has paid most attention to truth commissions and trials, particularly international trials.

Truth commissions are non-judicial commissions established to investigate human rights abuses, usually those perpetrated by military, government or other state institutions.  They aim to facilitate reconciliation by allowing alternative ‘truths’ to be heard and officially acknowledged, creating a more accurate historical record of human rights abuses.

Wilson, R.A., 2001, The Politics of Truth and Reconciliation in South Africa: Legitimising the Post-Apartheid State, Cambridge University Press, Cambridge
This is a very important work on transitional justice, offering a very thorough examination of South Africa's Truth and Reconciliation Commission (TRC). Chapter 2: 'Technologies of Truth: The TRC's Truth-making Machine' looks at how the South African Truth and TRC worked, and how its effectiveness was limited by the way it operated and its approach to truth.
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Bloomfield, D., Barnes, T., and Huyse, L. (eds) 2003, 'Truth Telling', chapter 8 in Reconciliation after Violent Conflict. A Handbook
This chapter offers a recent policy-focused outline of truth commissions, what they entail, their potential benefits and risks, their main activities, and issues involved in their design.
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Crocker, D. A., 2000, 'Truth Commissions, Transitional Justice, and Civil Society', in Rotberg, Robert I. and Thompson, Dennis (Eds.), Truth v. Justice: The Moral Efficacity of Truth Commissions: South Africa and Beyond, Princeton University Press
How can fledgling democracies respond appropriately to the past evils of internal conflict without jeopardising stability and future development? What roles do official bodies and national and international civil society play in supporting or weakening post-conflict consolidation of democracy? This paper from Princeton University Press sets out a normative framework for reckoning with past wrongs and assesses the roles of various institutions in responding to past evils.
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The specific needs of children have rarely been addressed in detail in the literature on transitional justice.  The Truth and Reconciliation Commission in Sierra Leone is the first case where the needs of child soldiers have been incorporated into the design of a transitional justice mechanism.

Mann, N. and Theuermann, B., 2001, 'Children and the Truth and Reconciliation Commission for Sierra Leone: Recommendations for Policies and Procedures for Addressing and Involving Children in the Truth and Reconciliation Commission', UNICEF National Forum for Human Rights and UNAMSIL/Human Rights.
This report offers recommendations for policies, guiding principles and detailed special procedures for the involvement of children in the proceedings of the TRC. It recommends that the special procedures be applied to all children. The TRC's role is seen as both to create an official record of what happened to children during the conflict in Sierra Leone, and to facilitate the reintegration of children back into their communities or host communities.
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Trials can take different forms including domestic, international and ‘mixed’ courts and transnational criminal and civil proceedings.  Their varying implications are outlined in the scoping study by Jane Alexander above.

Linton, S., 2001, 'Cambodia, East Timor and Sierra Leone: Experiments in International Justice', Criminal Law Forum 12.
Can international tribunals achieve justice following massive violations of human rights? Are expectations that they will bring international standards to domestic judicial processes realistic? This paper for the Criminal Law Forum considers and draws lessons from internationalised domestic tribunals in Cambodia, East Timor and Sierra Leone.
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Harris, P. and Reilly, B. (eds.), 1998, 'Section 4.10 Reckoning for Past Wrongs: Truth Commissions and War Crimes Tribunals' in Democracy and Deep-Rooted Conflict: Options for Negotiators, International Institute for Democracy and Electoral Assistance. Stockholm, Sweden
This handbook provides a clear and accessible guide to war crimes tribunals, including their strengths and weaknesses, and issues for practitioners to take into account.
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Reparation refers to various measures that aim to redress past wrongs and provide compensation, rehabilitation and satisfaction for victims.  These measures can be provision of goods or services or the granting of legal rights, such as citizenship and nationality.  Reparation also includes symbolic measures such as disclosure of truth, public apologies and commemoration of victims.  Reparations can be judicial or non-judicial and can be allocated individually or collectively.

Vandeginste, S., 2003, 'Reparation,' in Reconciliation after Violent Conflict. A Handbook, International IDEA, Stockholm
Chapter 9 is a practical guide to introducing a reparations programme. It provides useful information on the various aspects of reparations and the various forms they take, legal information and advice on issues such as whether to take a judicial or non-judicial approach and how to fund the programme.
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Granting amnesty for perpetrators of human rights abuses has been justified on the grounds of promoting societal reconciliation.  It may be a tactical decision where former human rights abusers retain considerable power in relation to the new regime.  However, others argue that it creates impunity, encouraging the continuation of human rights violations.  The advantages and risks associated with amnesty are discussed in section 4.7 of Jane Alexander’s scoping paper above.

Bloomfield, D., Barnes, T., and Huyse, L. (eds), 2003, 'Justice', chapter 7 in Reconciliation after Violent Conflict. A Handbook
Post conflict rebuilding requires reconciliation if societies are to move from a divided path to a shared future. While democratic compromise resolves the issues which cause conflict, reconciliation addresses the relationship between the people who will have to make these compromises work. Reconciliation is a difficult and complex process, which always involves failures and setbacks. But the only real failures are those societies where reconciliation was ignored.
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Traditional justice systems

There is debate about the use of traditional or quasi-traditional judicial systems in transitional or post-conflict situations.  Whilst they incorporate local, rather than Western, versions of justice, they may entrench local-level power inequalities and lead to the exclusion of certain groups.

Penal Reform International Research Team, 2003, On Gacaca, Report IV: January 2003, PRI.
The confession procedure has become a cornerstone of the Rwandan alternative to formal courts (gacaca) in dealing with the genocide. How effective is it? What are the drawbacks? This report by Penal Reform International assesses the system and argues that while it is probably the best method of speeding up the judicial process, there is a danger that it can lead to a presumption of guilt rather than a presumption of innocence.
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Uvin, P.S., 2000, The Introduction of a Modernized Gacaca for Judging Suspects of Participation in the Genocide and the Massacres of 1994 in Rwanda, a discussion paper prepared for the Belgian Secretary of State for Development Cooperation.
This paper provides a case study of an important initiative inspired by traditional justice mechanisms in Rwanda. It provides useful advice to donors on how to support the gacaca, while avoiding their negative implications.
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Justice in conflict-affected areas

Failings of justice systems can cause conflict, so establishing credible and effective justice systems can be vital for preventing the renewal of violence. Post-conflict justice systems often have destroyed infrastructure, insufficient human resources, and low public trust. There are often high levels of lawlessness and organised crime. Disruption to land and property rights is often a huge obstacle to resettlement and rehabilitation of displaced populations.

This study draws lessons from the experiences of UK-funded policing and justice programmes in seven countries, including the conflict-affected countries Nepal, Afghanistan and Sierra Leone.

Stone, C,. 2005, Supporting Security, Justice and Development
An understanding of how insecurity and poverty are linked is increasingly informing development assistance. How can assistance with policing and justice be strengthened? This paper, part of a larger study commissioned by the UK government, draws together lessons from the experiences of recent UK funded policing and justice programs in seven countries: Afghanistan, India, Jamaica, Malawi, Nepal, Nigeria and Sierra Leone.
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The following chapter from the DFID-commissioned study of peace operations in Kosovo, East Timor, Sierra Leone and Afghanistan, focuses on the track record on rule of law and justice in these countries.

Darendorf, 2003, Role of Law and Post-Conflict Justice, in Review of Peace Operations
(document summary and access to full text available shortly)

The following paper describes the approach of the UNDP's approach to justice and security sector reform in peacebuilding and post-conflict reconstruction.

United Nations Development Programme, 2002, Justice and Security Sector Reform. BCPR's Programmatic Approach, UNDP.
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What other resources are available on the GSDRC?

Use the site search at the top of the page if you wish to look for wider resources on transitional justice.

Additional information resources

Among the most useful sites are:

International Internet Bibliography on Transitional Justice
This page includes around 2000 texts in English and German on transitional justice mechanisms, international law, history and democratisation, and a country index featuring texts from Africa (particularly South Africa), Western and Eastern Europe, Asia, USA and Latin America. This bibliography is a joint project by the Law Faculties of the University of the Western Cape, Cape Town, and Humboldt University, Berlin.

INCORE Guide to internet sources on Truth and Reconciliation
Includes further links to relevant academic centres, articles, news articles, and NGOs.

The International Centre for Transitional Justice
This useful website includes information on in-country assistance in Asia-Pacific, Africa, the Americas and Europe.
The ICTJ newsletter, Transitional Justice in the News, provides regular updates on events and developments throughout the world. The entire archive can be viewed on the website.

The International Institute for Democracy and Electoral Assistance (IDEA)
This site includes country-specific reports on a range of countries undergoing transition and the 2 online handbooks mentioned above.

Centre for the Study of Violence and Reconciliation (CSVR)
There are many publications on a variety of relevant subjects on its publications page.

For information on transitional justice initiatives around the world:

South Africa: The website of the Truth and Reconciliation Commission
All Five Volumes of the Final Report of the Truth and Reconciliation Commission can be read at http://www.info.gov.za/otherdocs/2003/trc/

Sierra Leone: The Truth and Reconciliation Commission
This is the website of Sierra Leone's TRC. Its publications page features background, explanation and press briefings on the TRC and its activities.

Sierra Leone: Special Court
This page about the Sierra Leone Special Court includes useful documents on the court statute and details of indictments.

Rwanda: The International Criminal Tribunal for Rwanda
This official website includes general information about the tribunal, legal texts, details of cases, annual reports, and a newly introduced monthly newsletter.

El Salvador: The report of the Commission on the Truth for El Salvador
This is the full version of the report of the Commission on the Truth for El Salvador. It outlines the commission's mandate, describes its findings, and makes recommendations for promoting peace and protecting human rights.

Former Yugoslavia: The International Criminal Tribunal for former Yugoslavia
This official site of the International Criminal Tribunal for former Yugoslavia includes press releases, basic legal texts, and information about indictments, proceedings and judgements.

International: The Statute of the International Criminal Court
This UN website houses the statute of the International Criminal Court (ICC), outlines the history of proposals for an ICC and includes a section on 'public information'.

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