Justice

Justice

 

Transitional justice

The United Nations defines transitional justice as the full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation. These involve judicial and non-judicial mechanisms (with differing levels of international involvement, or none at all) that include individual prosecutions, reparations, truth-seeking, institutional reform, vetting and dismissals, or a combination thereof. The most commonly-cited examples include the South African Truth and Reconciliation Commission, or the International Criminal Court, but there are many other mechanisms in operation, as illustrated by this guide. 

Transitional justice processes may have a variety of aims, such as to resolve the divisions in society caused by the human rights violations; to contribute to the healing process for victims and witnesses; to determine legal accountability; and/or to establish a historical record of the war and to educate. Wider institutional aims might be to restore the rule of law, democratise security institutions by promoting human rights, and to promote a stable peace.

There is widespread debate about whether the particular transitional justice strategy developed entails a choice between peace and justice. Some argue that while international and national criminal trials promote justice, they can exacerbate divisions and may hinder the achievement of peace. Those who face the potential for prosecution may be reluctant to lay down arms.  Instead, truth commissions, which in some cases provide amnesties for perpetrators, are often thought to promote peace and reconciliation at the expense of retributive justice. 

Others argue that transitional justice can simultaneously produce peace and justice. Efforts should be made to devise a comprehensive strategy that incorporates various mechanisms and approaches that can complement one another – and that can provide the greatest voice to survivors and deliver the greatest impact to local communities. 

Page contents


Where is a good place to start?

The following report provides an overview of the main transitional justice mechanisms and identifies some lessons learned.

United Nations Security Council, 2004, ‘The Rule of Law and Transitional Justice in Conflict and Post-conflict Societies’, Report of the Secretary-General, United Nations, New York
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The following documents introduce some of the key issues and debates in transitional justice and provide an overview of various transitional justice mechanisms and experiences with reconciliation.

Fischer, M., 2011, 'Transitional Justice and Reconciliation: Theory and Practice', in ‘Advancing Conflict Transformation: The Berghof Handbook II’ eds. B. Austin, M. Fischer, H.J. Giessmann, Barbara Budrich Publishers, Opladen/Framington Hills, pp. 406-430
Transitional justice is prominent in academic debates on democratisation, nation-building and state reconstruction, and has gained widespread support from international organisations. This chapter examines these debates and their practical relevance for conflict transformation and peacebuilding. It argues that not enough research has been done into the impact of transitional justice mechanisms and that therefore they need to be applied with caution. There is a need for more sustained comparative analysis and, above all, more interdisciplinary and mixed methods research on this issue.
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Mobekk, E., 2005, 'Transitional Justice in Post-Conflict Societies - Approaches to Reconciliation' in After Intervention: Public Security Management in Post-Conflict Societies - From Intervention to Sustainable Local Ownership, eds. Ebnother, A and Fluri, P., Geneva Centre for the Democratic Control of Armed Forces (DCAF), Geneva
The issue of transitional justice in post-conflict societies has become increasingly important in recent years. This paper from the Geneva Centre for the Democratic Control of Armed Forces examines forms of transitional justice. It looks at truth commissions, local courts and traditional methods of justice which have the greatest potential for local ownership. It argues that local ownership is crucial to the success of the post-conflict reconstruction process.
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Pillay, S. and Scanlon, H., 2007, ‘Peace versus Justice: Truth and Reconciliation Commission and War Crimes Tribunals in Africa’, Centre for Conflict Resolution, University of Cape Town
How effective have war crimes tribunals and truth commissions in Africa been in dealing with human rights abuses? What dilemmas do prosecution of or amnesty for perpetrators of war crimes pose for peace and justice? This seminar report from the Centre for Conflict Resolution analyses the dilemmas posed by peace without justice. When assessing transitional justice mechanisms, new governments need to consider mechanisms for reconciliation, the rebuilding of institutions conducive to a stable and fair political system and the economic resources needed to achieve these goals.
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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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Huyse, L., 2009, ‘All Things Pass, Except the Past’, AWEPA - European Parliamentarians with Africa
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Designing transitional justice strategies

Local Context

The following report explores key factors influencing the effectiveness of assistance for transitional justice in conflict and post-conflict situations.

Haider, H., 2011, ‘Factors Contributing to Transitional Justice Effectiveness’, GSDRC Helpdesk Research Report, Governance and Social Development Resource Centre, Birmingham, UK
Many claims have been made about the positive impact that transitional justice can have on societies recovering from violent conflict. Sceptics argue, however, that many transitional justice measures can undermine negotiated settlements and exacerbate divisions. There is growing recognition of the need to engage in more systematic research on the effects and impact of transitional justice; however such empirical research is still in the early stages. Nonetheless, the literature identifies some factors which contribute to the effectiveness of transitional justice (whether supported through international assistance or domestic resources). These include: legitimacy and local ownership; government commitment; involvement of civil society; outreach; capacity building; appropriate timing; the use of a combination of mechanisms; and empirical research.
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The selection and design of transitional justice programmes must be unique for each country.  Factors to take into account 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. 

Fletcher, L. and Weinstein, H., with Rowen, J., 2009, ‘Context, Timing and the Dynamics of Transitional Justice: A Historical Perspective’, Human Rights Quarterly, vol 31, no 1, pp. 163-220
This article from the Human Rights Quarterly questions the presumption that trials and/or truth commissions should be an early response in initiating a transitional justice process. A multi-factorial, qualitative analysis of seven case studies suggests the need for a fuller appreciation of the dynamic system in which transitional justice interventions occur. It is important to consider what the affected society wants and how a response can be tailored to the particular cultural, social, and economic contexts.
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Understanding the needs and perceptions of local populations concerning transitional justice and social reconstruction is imperative to the development of a legitimate transitional justice strategy and in promoting sustainable peace.  This paper from the International Center for Transitional Justice documents the views of Iraqis in addressing the legacy of authoritarian rule, political violence, armed conflict and foreign occupation.

International Center for Transitional Justice (ICJT)., 2004, ‘Iraqi Voices: Attitudes Toward Transitional Justice and Social Reconstruction’, ICTJ and the Human Rights Center, ICTJ Occasional Paper Series, University of California, Berkeley
How do Iraqis see the way forward in dealing with their legacy of human rights violations and political violence? What are their attitudes toward transitional justice? This survey by the International Center for Transitional Justice (ICTJ) and the University of California suggests that a comprehensive and coordinated approach to social repair and transitional justice is required. Implementing piecemeal processes in transitional societies runs the enormous risk of failing to adequately address the past, arrive at the truth, achieve justice and rebuild trust.
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More recently, a survey was conducted in the Eastern Democratic Republic of Congo by the Berkeley-Tulane Initiative on Vulnerable Populations, a joint project of University of California, Berkeley’s Human Rights Centre and Tulane University’s Payson Centre for International Development, and the International Centre for Transitional Justice:

Vinck, P., 2008, ‘Living with Fear: A Population-Based Survey on Attitudes about Peace, Justice and Social Reconstruction in Eastern Democratic Republic of Congo’, Berkeley-Tulane Initiative on Vulnerable Populations, Berkeley
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Socio-economic context is also critical to the success of transitional justice mechanisms.  In South Africa, ongoing violence, forms of oppression and socio-economic disparities are undermining the realisation of goals of the Truth and Reconciliation Commission and efforts to heal the nation.  The following report from the Centre for the Study of Violence and Reconciliation asserts that unresolved trauma and anger of parents and grandparents in South Africa is being passed onto youth.

Naidu, E. and Adonis, C., 2007, ‘History on Their Own Terms: The Relevance of the Past for a New Generation', Research report written for the Centre for the Study of Violence and Reconciliation, Johannesburg and Cape Town
How does the memory of traumatic, intractable conflict affect later generations, and how can reconciliation be made an integral part of this memorialising? This report, published by the Centre for the Study of Violence and Reconciliation, argues that South Africa’s younger generations have absorbed an unresolved sense of trauma and anger from their elders. The older generation, many of whom survived severe human rights violations, have not adequately reached out to youth or used the past to encourage reconciliation processes.
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Inclusive processes

Transitional justice processes are as important as the choice of mechanisms.  It is essential to consider the issue of who is included in and excluded from transitional justice decisions.  Discussions on the design of transitional justice and the implementation of mechanisms should aim to reach the broadest population possible.  This includes marginalised groups, including women and displaced populations.  The voices, concerns and priorities of such groups must be heard and addressed. This can increase the potential success and sustainability of transitional justice and peacebuilding efforts.

Duthie, R., 2011, 'Transitional Justice and Displacement', International Journal of Transitional Justice, vol. 5, no. 2, pp. 241-261
How does transitional justice fit within broader responses to the problem of displacement? Conflict-induced displacement is an important factor in contexts in which transitional justice operates, yet displacement has received little attention in the literature and practice of transitional justice. This article argues that transitional justice can and should address displacement, but in doing so needs to take account of and establish links with other relevant actors.
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Harris Rimmer, S., 2010, ‘Reconceiving Refugees and IDPs as Transitional Justice Actors’, United Nations High Commissioner for Refugees, Geneva
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Valji, N., with Sigsworth, R. and Goetz, A. M., 2010, 'A Window of Opportunity: Making Transitional Justice Work for Women', United Nations Development Fund for Women
How can transitional justice processes serve women more effectively? Among the guiding principles of UN engagement in transitional justice activities is the need to 'strive to ensure women's rights'. This report examines gender equality issues in relation to prosecutions, truth seeking, reparations, national consultations and institutional reforms. It argues that post-conflict transitions provide opportunities both to secure justice and to address the context of inequality that gives rise to conflict. Normative, procedural and cultural aspects of transitional justice institutions require reform.
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Page, M., 2010, ‘Improving Liberia’s Transitional Justice Process by Engaging Women’, The Institute for Inclusive Security, Hunt Alternatives Fund, Washington, DC
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One of the frequently cited goals of transitional justice in divided societies is ‘reconciliation’. This outcome is often assumed to be an automatic outcome of various transitional justice processes and mechanisms. This is unlikely to be the case, however, in the absence of specific attention to restore intergroup trust and relationships. The field of coexistence provides a framework for thinking about intergroup relations and interdependence. Lessons could be learned from this field in order to design transitional justice processes and mechanisms in a way that promotes inclusion and coexistence; and contributes to processes of ‘reconciliation’.

Haider, H., 2011, ‘Social Repair in Divided Societies: Integrating a Coexistence Lens into Transitional Justice’, Conflict, Security and Development, vol. 11, no. 2, pp. 175-203
This article suggests that transitional justice could contribute more positively to the process of reconciliation, one of its core aims, by: 1) supporting and working alongside coexistence initiatives; and 2) incorporating coexistence frameworks within its own processes and mechanisms. Coexistence initiatives – such as dialogue facilitation, intergroup projects aimed at achieving shared goals, and media campaigns designed to reframe the 'other' – are essential to restoring trust, transforming perceptions and rebuilding relationships in divided societies. Unless people's lived realities are transformed, members of identify groups are likely to continue to focus on 'data' that confirm their existing beliefs.
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Outreach

Outreach programmes are an integral component of transitional justice processes. They aim to establish communication with affected communities to raise awareness and understanding of transitional justice and its mechanisms. In the absence of such programmes, there can often be a gap between the goals and actions of transitional justice mechanisms and the needs and perceptions of the society it seeks to serve.

Ramírez-Barat, C., 2011, 'Making an Impact: Guidelines on Designing and Implementing Outreach Programs for Transitional Justice', International Centre for Transitional Justice
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Timing

Issues of timing and space are also important to consider.  In Kenya, transitional justice policy is being formulated at the same time as political transformation and broader reforms of the political system and institutions.  The following article argues these simultaneous efforts have resulted in the infiltration of political tensions in the transitional justice process.

Musila, G.M., 2009, 'Options for Transitional Justice in Kenya: Autonomy and the Challenge of External Prescriptions', International Journal of Transitional Justice, vol. 3, no. 3, pp. 445-464
What are the options and challenges for transitional justice in Kenya? This article from the International Journal of Transitional Justice argues that despite a general consensus on the need to implement transitional justice measures to address past injustices and to further reconciliation in Kenya, there is little agreement on the form these measures should take. A coherent transitional justice policy is needed in Kenya. This should take account of both political and structural violence, and tackle key issues relating to the impact of international mechanisms and norms on local options and the kind of justice mechanisms to be deployed.
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Linking to other peace and security programming

Disarmament, demobilisation and reintegration (DDR) and transitional justice processes often operate contemporaneously in conflict-affected societies. Both are considered integral to peacebuilding processes. Despite the traditional segmentation of the two fields, there are various ways in which DDR and transitional justice processes and mechanisms overlap in practice. The following report examines the linkages between transitional justice and DDR and the benefits that can be gained from a more coordinated approach.

Haider, H., 2011, ‘DDR and Transitional Justice’, GSDRC Helpdesk Research Report, Governance and Social Development Resource Centre, Birmingham, UK
DDR programming has become a regular component of international peace support and peacebuilding architecture and DDR programmes can play an important role in limiting violence by disarming large numbers of actors and disbanding illegal, dysfunctional or bloated military structures. While there is a growing body of research on DDR, there has until very recently been little research that explores the linkages between DDR and transitional justice. There have also been minimal efforts to practically design processes with the other in mind. The report discusses the complementarities of DDR and transitional justice, how transitional justice could benefit DDR and vice versa. The report closes with a look at recommendations on how to bring the two disciplines together in theory and practice.
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Donor approaches

Donor assistance for transitional justice mechanism has grown in recent years, but there are no shared policy framework or guidance documents. The following report of a ICTJ –DFID sponsored seminar “Donor Strategies for Transitional Justice: Taking Stock and Moving Forward,” held in London on October 15-16, 2007 discusses donor aid to transitional justice processes, partnership with national actors, and ways in which to contribute to effective transitional justice initiatives.

ICTJ and DFID, 2007, ‘Donor Strategies for Transitional Justice:  Taking Stock and Moving Forward’, Seminar Report, 15-16 October, London
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The following tool has been used to inform the UN’s approach to transitional justice. It stresses the importance of comprehensive processes of national consultation for ensuring that transitional justice remains focused on the rights and needs of conflict-affected people.

Office of the United Nations High Commissioner for Human Rights (OHCHR), 2010, ‘Rule of Law Tools for Post-Conflict States: National Consultations on Transitional Justice’, United Nations, New York and Geneva
How can national consultations support effective transitional justice programmes? This report presents national consultations as a crucial element of the human rights-based approach to transitional justice. A process of consultations ensures that there is local ownership and participation and can bolster transitional justice programmes by reigniting stalled peace processes and triggering community debate. Donors should periodically conduct consultations during the implementation of a transitional justice programme, with a view to recalibrating it and enhancing its impact.
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Impact of transitional justice

There are many assertions that are made about the importance of pursuing transitional justice and the positive impact that it can have on societies recovering from violent conflict and authoritarianism.  Skeptics argue instead that transitional justice can undermine negotiated peace settlements and exacerbate divisions. 

The following paper finds that there is little evidence to back up either of the claims. It advises policy makers and researchers to seek out comparative data and evidence in order to move from “faith-based” to “fact-based” discussions of transitional justice.

Thoms, O.N., Ron, J., and Paris, R., 2010, 'State-Level Effects of Transitional Justice: What Do We Know? ', International Journal of Transitional Justice, vol. 4, no. 3, pp. 329-354
Does transitional justice (TJ), including trials and truth commissions, strengthen or threaten societal peace in transitional countries? This paper reviews the empirical literature on the effects of trials and truth commissions on institutions and policy processes at the state level. It finds that empirical evidence of positive or negative effects is still insufficient to support strong claims. More systematic and comparative analysis of the TJ record is needed in order to advance evidence-based discussions of transitional justice impacts. Research needs to identify the conditions under which specific TJ mechanisms are most likely to have desired effects on transitional societies.
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There is a limited but growing body of research that aims to explore the impact of transitional justice. The following research finds that specific combinations of mechanisms – trials and amnesties; and trials, amnesties, and truth commissions – can contribute positively to human rights and democracy. Trials can provide accountability and amnesties can provide stability, advancing democracy and respect for human rights. Truth commissions can also increase accountability by revealing systematic patterns of abuse and provide guidance for reforms to improve human rights protections. On their own, however, truth commissions can have a negative impact on human rights. Additional research is needed to determine whether commissions are successful in achieving other important goals, such as establishing an official truth about the past and giving voice to victims.

Olsen, T. D., Payne, L. A. and Reiter, A. G., 2010, 'The Justice Balance: When Transitional Justice Improves Human Rights and Democracy', Human Rights Quarterly, vol. 32, no. 4, pp. 980-1007
Evidence from the Transitional Justice Data Base shows that specific combinations of mechanisms – (1) trials and amnesties, and (2) trials, amnesties and truth commissions – improve human rights and democracy. These findings suggest a 'justice balance' approach to transitional justice – that trials provide accountability and amnesties provide stability. Truth commissions alone have a negative impact on human rights and democracy, but contribute positively when combined with trials and amnesties.
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Olsen, T. D., Payne, L.A., Reiter, A.G., and Wiebelhaus-Brahm, E., 2010, 'When Truth Commissions Improve Human Rights', International Journal of Transitional Justice, vol. 4. no. 3, pp. 329-354
How, when and why do truth commissions improve human rights? This paper draws on the experiences of Brazil, Chile, Nepal, South Korea and South Africa. It concludes that although truth commissions are incapable of promoting stability and accountability on their own, they contribute to human rights improvements when they complement and enhance amnesties and prosecutions.
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Memorials, museums and places of memory represent important sites where the past can be confronted; they are often considered necessary to move forward from past atrocity.  The following article seeks to assess the impact of memorialisation on societies recovering from conflict.  If finds that memorial sites have had various positive impacts on the young people who visited them.  Whether such sites can contribute to reconciliation, violence prevention or respect for human rights is largely dependent on the extent to which they are linked to other wider mechanisms of reform.

Hamber, B., Ševcenko, L., and Naidu, E., 2010, 'Utopian Dreams or Practical Possibilities? The Challenges of Evaluating the Impact of Memorialisation in Societies in Transition', International Journal of Transitional Justice, vol.  4, no. 3, pp. 397-420
How can memorialisation of the past support social reconstruction or transitional justice? This study evaluates the youth education programmes of the International Coalition of Sites of Conscience in Italy, Bangladesh and Chile in order to suggest strategies for conceptualising and evaluating the impact of memorialisation. It argues that while much thinking remains to be done on how to evaluate memorialisation in societies in transition, transitional processes can make better use of the resources that memorial sites have to offer. The impact of memorial sites needs to be maximised through long-term investment, ongoing programmes and accompanying evaluation.
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The following book examines the impact of the International Criminal Tribunal for the former Yugoslavia on democratisation in Bosnia and Herzegovina.  It finds that the tribunal has made a positive contribution to the country’s transition.

Nettelfield, L. J., 2010, Courting Democracy in Bosnia and Herzegovina: The Hague Tribunal's Impact in a Postwar State, Cambridge University Press, Cambridge
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Poverty reduction, socioeconomic development and transitional justice

The transitional justice literature focuses to a large extent on addressing past civil and political rights violations and war crimes.  Whilst these issues are of fundamental importance, the publications below suggest that social and economic rights (e.g. rights to health, education, housing) deserve more attention in periods of transition.

In the following speech, the former UN High Commissioner for Human Rights argues that transitional justice mechanisms have not yet dealt with economic, social and cultural rights adequately or systematically. A comprehensive transitional justice strategy should address the gross violations that gave rise or contributed to the conflict in the first place. As part of the transition to a peaceful society, protective constitutional, legislative and institutional measures should be put in place to ensure that these violations will not be perpetuated in the future.

Arbour, L., 2006, ‘Economic and Social Justice for Societies in Transition’, Annual Lecture of Transitional Justice, 25 October, New York University School of Law
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The following chapter from the final report of the Commission for Reception, Truth and Reconciliation in East Timor (CAVR) reviews economic and social rights violations committed under the Indonesian occupation of East Timor, including the rights to health, education, housing and to work freely.

Commission for Reception, Truth and Reconciliation in East Timor, 2006, Chapter 7.9 ‘Economic and Social Rights’ in Final Report
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The following studies provide an overview of transitional justice mechanisms, explore ways in which differing mechanisms can contribute to poverty reduction, and consider the links between transitional justice and development.

Alexander, J., 2003, 'A Scoping Study of Transitional Justice and Poverty Reduction', Final Report for DFID.
The mechanisms used to address human rights violations committed during the conflict periods include criminal and civil prosecution in domestic, foreign and international courts, traditional justice processes, truth commissions, lustration/vetting, reparations and amnesties. These mechanisms are designed to achieve goals like justice, reconciliation and peace. Do they have the potential to contribute to the goal of poverty reduction? This report for the Department for International Development examines ‘transitional justice mechanisms’ employed in post-conflict situations, with reference to past and present examples.
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De Greiff, P., 2009, ‘Articulating the Links Between Transitional Justice and Development: Justice and Social Integration’, Chapter 1 in Transitional Justice and Development: Making Connections, International Centre for Transitional Justice, New York
What are the links and boundaries between transitional justice and development? What can transitional justice contribute to development? This book chapter published by the Social Science Research Council argues that transitional justice promotes social integration, and it is in this capacity that it overlaps with and may serve the interests of development. Transitional justice has a norm-affirming role, and can enhance recognition, trust, and political participation, helping to strengthen inclusive, participatory citizenship. Citizenship stands in both an instrumental and a constitutive relationship with justice and with development.
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Laplante, L.J., 2008, 'Transitional Justice and Peace Building: Diagnosing and Addressing the Socioeconomic Roots of Violence through a Human Rights Framework', International Journal of Transitional Justice, vol. 2, no. 3, pp. 331-355
How can transitional justice mechanisms – in particular, truth commissions (TCs) – better accommodate socio-economic issues in order to respond to new cycles of violence in post-conflict settings? On the basis of comparative country experiences, this article from the International Journal of Transitional Justice argues that TCs should expand their mandates to incorporate a legal framework that views the socio-economic root causes of conflict in terms of violations of economic, social and cultural rights. By adopting a human rights-based framework, TCs can contribute to post-conflict recovery by diagnosing the socio-economic causes of conflict and helping to orient national policy agendas towards addressing poverty and the structural inequalities that lead to violence.
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Truth commissions and trials

The transitional justice literature has paid most attention to truth commissions and trials, particularly international trials. The following paper provides an overview of the goals and critiques of trials and truth commissions and develops a theory of their interaction with each other.

Dukalskis, A., 2011, 'Interactions in Transition: How Truth Commissions and Trials Complement or Constrain Each Other', International Studies Review, vol. 13, no. 3, pp. 432–451
How do truth commissions and human rights trials interact to facilitate or constrain transitional justice efforts? How might these interactions be affected by different sequencing choices and by legacies of violence and its termination? This article outlines a theoretical framework, and suggests that holding simultaneous truth commission and trials could offer the advantages of both approaches while mitigating the disadvantages of each. However, contextual factors will be crucial.
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Truth commissions

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. Truth commissions can also provide recommendations aimed at addressing the root causes and outcomes of the conflict.  Often, this involves countering inequalities in society and developing a reparations policy.

The key reference is the following book, which summarises experiences with 21 truth commissions.

Hayner, P. B., 2002, ‘Unspeakable Truths: Facing the Challenge of Truth Commissions’, Routledge, London
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This report by Amnesty International outlines best practices for establishing and conducting truth commissions.

Amnesty International, 2007, 'Truth, Justice, and Reparation: Establishing an Effective Truth Commission', Amnesty International, London
How can a truth commission fulfil the rights of victims of human rights violations? What powers, functions and resources are required for an effective truth commission? This paper from Amnesty International discusses the role of truth commissions in promoting human rights and provides guidelines for establishing an effective truth commission. It shows how truth commissions can fulfil the right of victims of human rights violations to truth, justice and reparation.
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A key lesson is to ensure that truth commissions are well adapted to the local context.  This report from the United States Institute for Peace argues that the Truth and Reconciliation Commission (TRC) in Sierra Leone received little popular support as it was not tailored to their preferences and needs.

Shaw, R., 2005, 'Rethinking Truth and Reconciliation Commissions: Lessons from Sierra Leone', United States Institute for Peace, Special Report, no. 130
Truth and Reconciliation Commissions (TRCs), are increasingly viewed as a standard part of any national post-conflict healing process. Can TRCs contribute to social recovery? This paper, published by the United States Institute of Peace, investigates Sierra Leone's TRC, which began its public hearings in 2003. It examines the compatibility of the TRC with the local recovery strategy - a "forgive and forget" approach. It argues that the TRC will be more effective if it builds on established practices of healing and coexistence.
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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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One of the key outputs of truth commissions is a comprehensive report that documents human rights violations and war atrocities – with the aims of contributing to building a collective memory and educating the public.  It is also hoped that this may contribute to individual and societal reconciliation. 

Truth-telling is not limited to official truth commissions.  Truth telling initiatives can also be unofficial and rooted in civil society.  The following paper discusses the advantages and disadvantages of official and unofficial truth projects – and the relationship between the two.

Bickford, L., 2007, ‘Unofficial Truth Projects’, Human Rights Quarterly, vol. 29, no. 4, pp. 994-1035
What can we learn from a comparison between official truth commissions and Unofficial Truth Projects (UTPs), truth-telling initiatives that emerge from civil society? This Human Rights Quarterly article uses case studies from around the world to examine the two approaches. While neither is superior in terms of truth recovery, they each have certain strengths. The greatest asset of UTPs is their flexibility: they are unique, creative, and appropriate for a local context.
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In order for truth commissions to have an impact on societies, politicians need to be genuinely committed to the process and to provide commissions with the necessary support and resources. In addition, local populations need to be consulted as their input and support is critical.  There is some discussion in the literature of the danger that truth commissions may be established unilaterally by politicians in a haphazard fashion, with the primary aim of countering external pressure for international prosecutions.  This greatly undermines the potential effectiveness of truth commissions.  The following article discusses these developments in Serbia and Croatia.

Grodsky, B., 2009, 'International Prosecutions and Domestic Politics: The Use of Truth Commissions as Compromise Justice in Serbia and Croatia', International Studies Review, vol. 11, no. 4, pp. 687 - 706
What are the effects of external pressures for international prosecutions on transitional justice in post-conflict states? This article from the International Studies Review explores the impact of the internationalisation of criminal justice on domestic transitional justice efforts. Domestic political elites may find themselves sandwiched between international pressure for justice and constituent non-elite pressure against it. The experience of truth commissions in Serbia and Croatia between 2000 and 2005 illustrates the ‘compromise justice’ that may result, weakening justice mechanisms and making post-conflict reconciliation less likely.
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Without careful planning, truth commissions are likely to fail. The following document describes the Haitian Truth and Reconciliation Commission, which did not achieve its aims due to the absence of political will and a series of institutional failings.

Quinn, J., 2009, ‘Haiti's Failed Truth Commission: Lessons in Transitional Justice’, Journal of Human Rights, vol. 8, no. 3., pp. 265-281
Why did the Haitian truth commission fail? This article evaluates the Haitian Commission nationale de vérité et de justice (CNVJ). It concludes that the Commission faced many complications (including a lack of political will and funding) and numerous institutional constraints (including lack of capacity, increasing security concerns, and shortages of time and funding). The Commission was therefore unable to contribute appropriately to the acknowledgement of Haiti's conflicted past, undermining donor attempts to advance reconciliation in the country.
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Although a lot of research has focused on the design and implementation of truth commissions, relatively few studies have assessed their impact on victims. The following article argues that there is little evidence to support either positive or negative claims about the effects of truth commission on victims.

Mendeloff, D., 2009, ‘Trauma and Vengeance: Assessing the Psychological and Emotional Effects of Post-Conflict Justice, Human Rights Quarterly, vol. 31, no. 3, pp. 592-623
Do war crimes tribunals or truth commissions provide psychological relief from war-induced trauma? Alternatively, does the experience of post-conflict justice exacerbate emotional and psychological suffering? This article assesses the available evidence on the impact of transitional justice, finding little support for either salutary or harmful effects of post-conflict justice. Assumptions that formal truth-telling processes satisfy victims' need for justice, ease their psychological suffering and dampen their desire for vengeance should be questioned.
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Trials

Trials can take different forms including domestic, international and ‘mixed’ courts and transnational criminal and civil proceedings.  Their varying forms and the advantages and disadvantages of each are outlined in the scoping study by Jane Alexander above.  Domestic courts refer in this context to a situation where there is no direct international intervention in the judiciary.  International courts have taken the form of ad hoc, temporary tribunals – notably the International Criminal Tribunals for former Yugoslavia (ICTY) and Rwanda (ICTR) in the 1990s. In 2002 the International Criminal Court (ICC) was established to serve as a permanent international tribunal. Mixed or hybrid courts, located within the country in which the crimes were perpetrated, have been introduced as a mechanism for combining international intervention and support for the national judicial system. 

The ICC has intervened in ongoing conflicts in Northern Uganda, Darfur and the Democratic Republic of the Congo, which has led to further debate about peace versus justice. The following publication explores through eight papers the impact of the ICC in conflicts in Africa.

Waddell, N. and Clark, P., eds., 2008, ‘Courting Conflict? Justice, Peace and the ICC in Africa’, Royal African Society, London
Is the International Criminal Court (ICC) pursuing too aggressive and disruptive an agenda in Africa, without proper priorities? This series of papers, published by the Royal African Society, suggests that the ICC has made a promising beginning in many respects, but that its work in Africa highlights some significant weakness. According to one charge, the ICC’s pursuit of justice jeopardises fragile peace deals, risking the prolongation of conflict. The papers focus on the ICC’s response to several African conflicts, particularly in Uganda, Sudan and the Democratic Republic of Congo. Much depends on the Court’s capacity to absorb early lessons and to demonstrate a clear role – both in its own right and in relation to other judicial and non-judicial initiatives.
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For further information see the ICC website, including the Rome Statute of the International Criminal Court and the Rules and Procedure of Evidence.

Hybrid or mixed courts are often considered to incorporate the benefits of both international and national courts.  They allow for international expertise and contribute to capacity building of national legal systems.  In addition, their situation in the local setting allows for greater ownership and potential impact on the population.

This OHCHR report explores the potential positive impact of hybrid courts on domestic justice systems and respect for human rights, based on experiences since 1999.

OHCHR, 2006, ‘Rule-of-Law Tools for Post-Conflict States: Maximizing the Legacy of Hybrid Courts’, Office of the United Nations High Commissioner for Human Rights, New York and Geneva
How can the international community help to bolster the rule of law in post-conflict states? This Office of the United Nations High Commissioner for Human Rights (OHCHR) report argues that hybrid courts can have a positive impact on the domestic justice system of post-conflict states. If used effectively, the opportunity afforded by the establishment of hybrid courts can act as a catalyst for change in legal institutions and culture.
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The International Centre for Transitional Justice has published a series of case studies on international, hybrid and domestic trials as part of its Prosecutions Programme.  They present key challenges, lessons learned and guidance on setting up such institutions. The studies include:

Ivaniševic, B., 2008, ‘The War Crimes Chamber in Bosnia and Herzegovina: From Hybrid to Domestic Court’, International Centre for Transitional Justice
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Ivaniševic, B., 2007, ‘Against the Current: War Crimes Prosecutions in Serbia’, International Centre for Transitional Justice
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Perriello, T. and Wierda, M., 2006, ‘Lessons from the Deployment of International Judges and Prosecutors in Kosovo’, International Centre for Transitional Justice
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Perriello, T. and Wierda, M., 2006, ‘The Special Court for Sierra Leone under Scrutiny’, International Centre for Transitional Justice
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Reparations, memorialisation, vetting and amnesty

Reparations

Reparations refer 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.  Reparations also include symbolic measures such as disclosure of truth, public apologies, memorials and monuments, and commemoration of victims.  Reparations can be judicial or non-judicial and can be allocated individually or collectively.

OHCHR, 2008, ‘Rule-of-Law Tools for Post-Conflict States: Reparations Programmes’, Office of the United Nations High Commissioner for Human Rights, New York and Geneva
How can effective reparations programmes be conducted? What role should the international community play? This publication, by the Office of the United Nations High Commissioner for Human Rights (OHCHR), offers a practical guide for reparations programmes. It is important to clarify legal obligations and the moral reasons for reparations, to address the political concerns and to be aware of cultural issues. International actors should rethink their reluctance to provide financial support to reparations efforts.
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The following handbook provides a broad overview of reparations and a series of detailed thematic and country case studies.

Grieff, P. de, 2006, ‘The Handbook of Reparations’, Oxford University Press, Oxford Scholarship Online
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Memorialisation

Memorialisation refers to a range of processes and forms of collective remembrance; it is often considered necessary to recover from past atrocity.  Memorials, museums and places of memory represent important sites where the past can be confronted.  Unlike other transitional mechanisms such as prosecutions and truth commissions, memorialisation can involve large numbers of people over long periods of time.  It can also be initiated by both communities and governments.  One of the key challenges of memorialisation is determining how to address the narrative of past atrocity.  In some cases, sites avoid presenting one narrative and aim instead to promote critical thinking and debate.  In other situations, memorialisation aims to facilitate reconciliation through a particular narrative and new national identity.

Hamber, B., Ševcenko, L., and Naidu, E., 2010, 'Utopian Dreams or Practical Possibilities? The Challenges of Evaluating the Impact of Memorialisation in Societies in Transition', International Journal of Transitional Justice, vol.  4, no. 3, pp. 397-420
How can memorialisation of the past support social reconstruction or transitional justice? This study evaluates the youth education programmes of the International Coalition of Sites of Conscience in Italy, Bangladesh and Chile in order to suggest strategies for conceptualising and evaluating the impact of memorialisation. It argues that while much thinking remains to be done on how to evaluate memorialisation in societies in transition, transitional processes can make better use of the resources that memorial sites have to offer. The impact of memorial sites needs to be maximised through long-term investment, ongoing programmes and accompanying evaluation.
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Vetting

Vetting is a process whereby individuals who lack integrity and who are considered a threat to the state are excluded or removed from public office and can form part of transitional justice strategies.  Vetting is particularly rigorous in the security and justice sectors – as reforms of these sectors contribute to criminal accountability for past abuses and the prevention of future violations.

OHCHR, 2006, ‘Rule-of-Law Tools for Post-Conflict States: Vetting - An Operational Framework’, Office of the United Nations High Commissioner for Human Rights, New York and Geneva
Reforming public institutions is a core task in countries in transition from authoritarianism or conflict to democracy and peace. This United Nations High Commissioner for Human Rights (OHCHR) publication sets out an operational framework for vetting and institutional reform.  The complex challenges of transitional contexts require a comprehensive approach to institutional reform. An effective and legitimate reform strategy will situate vetting in its broader context.
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DCAF, 2006, Vetting and the Security Sector’, DCAF Backgrounder, Geneva Centre for the Democratic Control of Armed Forces, Geneva
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Amnesty

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.

The following article argues for a pragmatic approach to transitional justice, which does not presume that trials are the best way to prevent atrocities.  Instead, it highlights the value of amnesties as a bargaining tool to negotiate peace.

Snyder, J. and Vinjamuri, L., 2003, ‘Trials and Errors: Principle and Pragmatism in Strategies of International Justice’, International Security, vol. 28, no. 3, pp. 5-44
How effective in preventing human rights abuses are tribunals for the perpetrators of atrocities? This article from International Security reviews recent post-conflict experiences and finds little evidence that trials successfully deter future violence. Prosecution according to universal standards risks causing more atrocities than it would prevent, because it pays insufficient attention to political realities. More pragmatic approaches based on political negotiation, selective amnesties and long-term institutional strengthening have a better chance of reducing tension and consolidating peaceful democracies.
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The following articles examine the evolution of the anti-amnesty / anti-impunity norm and consider the debates concerning ‘peace versus justice’ (or ‘amnesty versus trials’ as it is often framed) arguing that greater attention should be paid to broader notions of accountability.

Pensky, M., 2008, ‘Amnesty on Trial: Impunity, Accountability and the Norms of International Law’, Ethics and Global Politics, vol. 1, no. 1-2, pp. 1-40
International criminal law is at a crossroads; how can it reconcile its desire to punish crimes against humanity with the use of domestic amnesties for achieving peace? This article from Ethics and Politics argues that the International Criminal Court's attitude toward domestic legal amnesties for international crimes will determine the extent to which international law embraces its role in embodying the ideals of democratic accountability and human rights. If international law does not distinguish itself by broadening its definition of justice beyond mere retribution and punishment, it risks losing the relevance and prominence it has fought so hard to achieve.
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Human Rights Watch, 2009, 'Selling Justice Short: Why Accountability Matters for Peace', Human Rights Watch, New York
Sacrificing justice in the hope of securing peace is often projected as a more realistic route to ending conflict and bringing about stability than holding perpetrators to account. Yet this report draws on Human Rights Watch research to argue that the impact of justice is too often undervalued when weighing objectives in resolving a conflict. While there is no one formula suitable to all situations, a decision to ignore atrocities and to reinforce a culture of impunity may carry a high price.
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Non-state justice systems

There is debate about the use of traditional and other non-state or informal systems in transitional or post-conflict situations.  They are considered to be beneficial in that they allow for local contexts to be incorporated into the justice system; they facilitate ownership and participation; they are familiar to local populations; and they can be quick and convenient.  Such systems can be problematic, however, as they are often criticised for entrenching local-level power inequalities that lead to the exclusion of certain groups.

The following documents examine traditional justice systems in Africa and evaluate how they can contribute to transitional justice and reconciliation goals.

Huyse, L., 2008, 'Introduction: Tradition-based Approaches in Peacemaking, Transitional Justice and Reconciliation Policies' in eds. Huyse, L. and Salter, M., Traditional Justice and Reconciliation after Violent Conflict: Learning from African Experiences, International IDEA, Stockholm, pp. 1-22
What role does traditional justice play in dealing with legacies of human rights abuses? How can interpersonal and community-based practices interrelate with state-organised and internationally sponsored forms of retributive justice and truth telling? This report provides a comparative analysis of traditional justice mechanisms in Rwanda, Sierra Leone, Mozambique, Uganda and Burundi. Most of the countries studied combine traditional justice and reconciliation instruments with other transitional justice strategies.
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Mekonnen, D., 2010, 'Indigenous Legal Tradition as a Supplement to African Transitional Justice Initiatives', African Journal of Conflict Resolution, vol.10, no. 3, pp. 101-122
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Much of the literature on the use of traditional justice systems in transitional justice focuses on the gacaca courts in Rwanda. These are state-sponsored courts to try genocide cases at the local level. Inspired by traditional practices, they act as specialised grassroots courts to serve as alternatives to the formal courts.

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 in dealing with the genocide. How effective is it? What are the drawbacks? This report by Penal Reform International assesses the gacaca 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. Other PRI gacaca monitoring reports can be found at www.penalreform.org
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Brouneus, K., 2008, 'Truth-Telling as Talking Cure? Insecurity and Retraumatization in the Rwandan Gacaca Courts', Security Dialogue vol. 39, no. 1, pp. 55-76
How does testifying in truth and reconciliation commissions affect psychological health? Is the experience healing or retraumatising? This Security Dialogue study presents evidence from interviews with women who have testified in Rwanda’s local gacaca courts. The study finds that traumatisation, ill-health, insecurity and isolation dominate the lives of the testifying women. They are threatened before, during and after giving testimony in the gacaca.
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Ingelaere, B., 2009, ''Does the Truth Pass Across the Fire Without Burning?' Locating the Short Circuit in Rwanda's Gacaca Courts', The Journal of Modern African Studies, vol. 47, no. 4, pp. 507-528
Are the Gacaca courts in Rwanda delivering reconciliation? This article, based on extensive field research, argues that the modern incarnation of this traditional form of justice is short-circuiting reconciliation by enforcing values and processes that run counter to established societal practices. In reality, the Gacaca courts are becoming more the tools of entrenched elites to manipulate society than a viable means of establishing truth and administering justice. As currently operating, this legal mechanism is delivering neither justice nor reconciliation and deserves closer scrutiny and greater scepticism from donors.
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Clark, P., 2010, The Gacaca Courts, Post-Genocide Justice and Reconciliation in Rwanda: Justice without Lawyers, Cambridge University Press, Cambridge
Drawing on more than six years of fieldwork in Rwanda and nearly five hundred interviews with participants in trials, this in-depth ethnographic investigation of a complex transitional justice institution explores the ways in which Rwandans interpret Gacaca.
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What other resources are available on the GSDRC?


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, the 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
    This guide 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)
    The CSVR’s Transitional Justice Programme explores the relationship between past conflicts, reconciliation, violence prevention and justice.  Its site includes discussion of these issues and links to research and intervention projects and a range of publications.
  • African Transitional Justice Research Network (ATJRN)
    The ATJRN builds the capacity of local level researchers and civil society organisations in African countries so that they can inform and evaluate transitional justice mechanisms. The site contains a variety of transitional justice publications.
  • Justice in Perspective
    This site provides information on transitional justice mechanisms which have been, and are currently being, undertaken or explored in various countries. The information is prepared to provide a quick overview of the different institutions and processes and easy access to key sites.
  • Oxford Transitional Justice Research (OTJR)
    The OTJR is an inter-disciplinary network of Oxford-based staff and students working on issues of "transition" in states recovering from mass conflict and/or repressive rule. It publishes working papers and online debates.
  • Research Group on Transitional Justice
    This research group, based at the Faculty of Law of the Catholic University of Leuven, conducts research, teaching and consultancy work in transitional justice.

For information on some transitional justice initiatives around the world: