Justice

Transitional justice (part 1)

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?
• Designing transitional justice strategies 
• Poverty reduction and transitional justice 
• Truth commissions and trials

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.

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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Designing transitional justice strategies

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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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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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 from the University of Ottawa 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. T., Ron, J. and Paris, R., 2008, ‘The Effects of Transitional Justice Mechanisms: A Summary of Empirical Research Findings and Implications for Analysts and Practitioners’, Centre for International Policy Studies, University of Ottawa
What do we know about the effects of transitional justice (TJ)? This working paper from the Centre for International Policy Studies surveys major studies and finds that empirical knowledge on the impacts of TJ is still limited. There is insufficient evidence to support strong positive or negative claims for TJ’s impact on political violence, human rights and the rule of law. Until further research is forthcoming, policymakers should take a consultative and gradual approach.
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Poverty reduction 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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Truth commissions and trials

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

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. 

In order to achieve these aims, the report and findings of truth commissions need to be widely disseminated.  This paper from the African Journal of International Affairs details the challenges faced in storing, disseminating and accessing TRC documentation.

Svärd. P., 2007, ‘The Challenges of Documenting War Atrocities in Post-Conflict Sierra Leone: A Study of the Truth and Reconciliation Commission’, African Journal of International Affairs, vol. 10, nos. 1 and 2, pp. 55-72
What challenges has Sierra Leone’s Truth and Reconciliation Commission (TRC) faced in documenting war atrocities? How can documenting war atrocities contribute to reconciliation, accountability and democratisation? This article from the African Journal of International Affairs argues for the proper preservation and dissemination of the documents generated by the TRC process in an effort to build collective memory.
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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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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., 2008, ‘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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Transitional Justice (part 2) >