Transitional Justice Essay

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The term transitional justice (TJ) is of fairly recent creation and is generally taken to signify a process of democratization occurring in a state that transitions from authoritarian rule, war, or internal conflict to a liberal democracy or a state of peace. Associated with the transition is the design and functioning of a process for dispensing justice to those members of the former governing regime who committed serious criminal acts, especially torture and crimes against humanity. Thus, TJ, according  to Mark  Freeman,  is “justice  [that] focuses on the challenge of confronting legacies of mass abuse”.

While  numerous modes  of  TJ  have  been employed over time, ranging from war crimes prosecutions at Nuremburg after World War II to the truth commissions of more recent times, TJ practitioners and states undergoing a TJ process usually emphasize issues of national reconciliation, victims’ rights and concerns, uncovering the truth about human rights abuses prior to the transition, and how best to dispense justice. These elements and others differentiate TJ from normative modes of justice, especially in relation to punishment for serious criminality. The field of TJ is very broad, encompassing at a minimum international law, political science, psychology, history, and ethics. Unsurprisingly, the field of criminology, given its noted parochialism, has given little attention to TJ despite its strong connections to victims and focus on punishment. A notable exception is the work of Stanley Cohen, especially States of Denial: Knowing About Atrocities and Suffering (2001).

It is only possible here to give a brief summary of the modes of TJ that have been mobilized in the service of political transitions and the associated issues. Early forms of TJ established in Central and South America, including Bolivia, Argentina, Uruguay, and Chile, were primarily forms of inquiry into past abuses that did not hear public testimony about issues such as “disappearances” for fear of the possible consequences, including an aggressive response by the armed forces. Thus, the “truth-seeking” element offered to victims of abuse and commonly included as a trade-off for amnesty was absent.  Over  time new modes  of TJ became more victim-centered and “truth commissions” became the new model for TJ. Especially important was the 1995 South African Truth and Reconciliation Commission (TRC), notable for features such as: a limited form of individual amnesty given only in exchange for truth-telling, wide public consultation concerning its powers and functions, the incorporation of its mandate in a law, and the close involvement of civil society in shaping its mandate.

Origins and Context of Transitional Justice

In reviewing the conceptual foundations of TJ, Paige Arthur traces its emergence to “an international web of individuals and institutions whose internal coherence is held together by common concepts,  practical  aims and distinctive  claims for legitimacy.” Arthur stresses that the field of TJ emerged at the international level and that its knowledge base was comparative. She explains how TJ was fashioned to meet certain practical needs as states, initially in South America, transitioned from military rule to democratic models. Previously, human  rights activists had focused on shaming abusive regimes, but when regime change occurred activists shifted to the issue of accountability for past wrongs.  Human rights advocates from various disciplines, interacting especially through conferences, are said to have shaped  discourses  about  democracy,  law, and justice into concrete forms of action that would ensure that  violations  of human  rights occurring before the transition would be confronted and victims’ stories heard. Indeed, while “transition to democracy” was the dominant lens at the time, the term transitional justice signaled a novel form of human rights activism aimed at transitional contexts.

A landmark event in the evolution of TJ was the publication in 1995,  in four volumes,  of Neil Kritz’s Transitional Justice: How  Emerging Democracies Reckon With Former Regimes, which Arthur  called “a canon  of transitional justice literature.” Thus, TJ was deployed as a moral imperative with transitional actors having a mission to satisfy what Guillermo O’Donnell and Phillippe Schmitter define as “standards of what is decent and just.” A debate that identified and analyzed emergent issues within TJ took place at the 1988 Aspen Institute  Conference, where  participants  identified  TJ  issues  as: whether international law required that human rights  violators  receive  punishment, whether states were obliged to state the truth about past violations, how to deal with abuses committed by military forces, and to what extent discretion and prudence might play a part in justice responses to past abuses. Questions about  the impact of international law on amnesties granted to former officeholders and the military continue to be raised.

Theoretical Considerations

The  theoretical underpinnings of  TJ  remain largely unexplored, but issues of law, punishment, justice, reconciliation, and truth-seeking interacting together could constitute elements of any single theory. In this respect, TJ mirrors the difficulties of theorizing  the concept of restorative justice. One theoretical perspective suggests that a systematic analysis of the legal processes occurring in the transition from the old to the new regime would better explain the role of law in TJ processes.

Thus, Ruti G. Teitel argues for the emergence of a distinctive jurisprudence of TJ in which the law looks both backward and forward, bridges the gap between the old and the new, and emergent rule-of-law  values are a function  of the political and historical  legacy in which law is now operating. Punishment, it is argued, is not simply a matter of ensuring accountability but is directed at furthering the political transformation in a state, and therefore may involve questions of amnesty, mercy, and reconciliation not commonly found in regular criminal justice processes. What is considered fair and just may consequently be conditioned by past injustices and the political conditions applying during the transition. The transitional jurisprudence suggested by Teitel is of central importance in any transition because, as she puts it, “The language of the law embues the new order with legitimacy and authority.”

Legal, Political, and Ethical Issues and Transitional Justice

Ethical questions in TJ have centered on whether it is morally correct for modes of transitional justice to authorize amnesty to be granted for alleged serious criminal acts so that criminal actors of the former regime escape punishment. The literature on amnesties and TJ is replete with arguments about the status of amnesties under international law, and that discipline has provided the frame through which academics and TJ practitioners have viewed the concept of amnesty. United Nations’ pronouncements about the legitimacy of amnesties (where radical shifts in official statements have occurred over time) have been analyzed as part of the politics of TJ and amnesty-granting.

In terms of international law, the creation of the International Criminal Court and other developments in punishing criminality under international law have impacted state sovereignty so that, according  to Freeman, “amnesty outcomes  are no longer within any individual state’s or institution’s control.” The relationship between amnesty and TJ remains highly controversial, largely as a result of the negative impact of an amnesty on the function of prosecuting persons for criminal conduct. Punishment is retributive in nature and an amnesty prevents the retribution that a society expects for violation of behavioral norms. Therefore, failure to punish is seen itself to be an injustice. In sum, many argue that because of treaty obligations to prosecute for serious offenses and other binding requirements to investigate human rights abuses and remedy human  rights violations,  international law prohibits the granting of amnesty. Thus, as Louise Mallinder puts it, “Anti-impunity campaigners argue that any form of amnesty for serious violations of international law would violate states obligations to ensure victims’ rights to truth, justice and reparations.” Others dispute this categorical position, arguing that since international law does not expressly prohibit amnesty in any human rights, humanitarian, or criminal law treaty, there is nothing to prevent amnesty-granting. Some scholars argue that while international law prohibits the granting of broad amnesties, the power to grant limited amnesties would not be a violation and represents what Juan E. Méndez describes as an “important tool in the conflict resolution process”.

The politics of amnesty-granting have shifted over time, with the United Nations (UN) Secretariat first treating them as a political issue but now perceiving them to be a legal issue extending beyond the sovereignty of a state. Thus, the South African limited amnesty model would now not be authorized by the UN. In 2004, the UN secretary general issued a report on “The Rule of Law and Transitional Justice in Conflict and Post Conflict Societies,” by which, according to Freeman, the UN Secretariat undertook to ensure that peace agreements “reject any endorsement of amnesty for genocide, war crimes, or crimes against  humanity, including  those  relating  to ethnic, gender and sexually based international crimes [and] ensure that no such amnesty previously granted is a bar to prosecution before any United Nations-created or assisted court.” Shortly after the issue of this report, the UN boycotted the Commission on Truth and Friendship jointly established by Indonesia and TimorLeste. The UN took this action because the commission was empowered to recommend amnesty for those who provided confessions of violations of human rights.

Ethical Debate

Ethical arguments in TJ tend to focus on the morality of granting amnesties for serious human rights violations as against imposing regular punishment. In other words, the question is whether the TJ process actually delivers justice. Teitel tentatively  suggests  that  instead  of punishing all offenders, selective or exemplary trials might serve the same purpose without undermining democratic processes, including the rule of law. Given that  as a matter  of practice limitations occur in the operation of systems of punishment in TJ, including amnesties (termed the “limited criminal  sanction”), Teitel  argues  that  in TJ limited criminal sanctions constitute acceptable retribution based on the characteristics of nondemocratic rule and the criminal justice system’s probable lack of legitimacy. In asking the question of punishment or impunity, Teitel responds that anti-impunity advocates see amnesties as a “selling out” of justice, while she suggests that “restraint in the punishment power … heralds the return to the rule of law, and that there are other restraints, such as the discretion to prosecute, that also curb the power to punish in nontransitional circumstances.

Freeman believes amnesties ought to be permitted in circumstances, “Where public security and the human rights related thereto are jeopardized on a mass scale by the threat of prosecution.” Consistent with this stand, the Sierra Leone Truth and Reconciliation Commission described the amnesty provisions of the Lome Peace Accord as“necessary in the circumstances that prevailed at the time,” and noted that,“Disallowing amnesty in all cases would be to deny the reality of violent conflict and the urgent need to bring such strife and suffering to an end.” Similarly, a reconciliatory approach to amnesty is illustrated in the 1994 Interim Constitution of South Africa, which provides that “there is a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for Ubuntu but not for victimization.” (In South Africa, indigenous cultural traditions include Ubuntu, which calls for tolerance rather than retribution).

In a careful analysis of the morality of amnesties, Amy Gutmann and Dennis Thompson investigate the moral foundations of truth commissions, arguing that “trading criminal justice” for “social reconciliation” must overcome three moral  challenges:  the  justification  must  itself be moral and equate to the justice being “sacrificed”; the truth commission must be morally justified by offering a rationale that is accessible and that appeals to all citizens on the basis of a need for social cooperation, and not only to certain groups; and the justification must be moral in practice in the sense that the truth commission is itself an exemplar of what is morally right, and thus acts in a fully moral fashion in undertaking its business.

Some, however, argue that truth commissions, by taking testimony  from victims and oppressors, are moral instruments because they reveal more of the truth—something a prosecution does not necessarily accomplish. Others claim that the specific historical circumstances investigated by the truth commission shape the demands of “justice” and allow the application of a special conception of justice.

While the moral complexities of TJ continue to engage scholarly interest, it would seem that the overall debate about the justice of TJ is largely carried out in the realm of international law. Ultimately, however, the political and social exigencies of a postconflict situation, including the relative strengths of formerly opposing parties in bargaining about the elements of reconciliation, are more likely to determine the shape of the postconflict justice outcome.

Bibliography:

  1. Arthur, P. “How ‘Transitions’ Reshaped Human Rights: A Conceptual History of Transitional Justice.” Human Rights Quarterly, v.31 (2009).
  2. Bass, G. J. Stay the Hand of Vengeance: The Politics of War Crimes Tribunals. Princeton, NJ: Princeton University Press, 2000.
  3. Clark, P. “Creeks of Justice: Debating Post Atrocity Accountability and Amnesty in Rwanda and Uganda.” In Amnesty in the Age of Human Rights Accountability: Comparative and International Perspectives, F. Lessa and L. Payne, eds. Cambridge: Cambridge University Press, 2012.
  4. Cohen, S. States of Denial: Knowing About Atrocities and Suffering. Cambridge: Polity Press,
  5. Elster, J. Closing the Books: Transitional Justice in Historical Perspective. New York: Cambridge University Press, 2004.
  6. Freeman, M. Necessary Evils: Amnesties and the Search for Justice. Cambridge: Cambridge University Press, 2009.
  7. Hayner, P. B. Unspeakable Truths: Facing the Challenge of Truth Commissions. New York:Routledge, 2002.
  8. Mallinder, L. Amnesty, Human Rights and Political Transitions. Portland, OR: Hart Publishing, 2008.
  9. Méndez, J. E. “Foreword.” In Amnesty in the Age of Human Rights Accountability: Comparative and International Perspectives, F. Lessa and L. Payne, eds. Cambridge: Cambridge University Press,
  10. O’Donnell, G. and P. Schmitter. Transitions from Authoritarian Rule. Baltimore, MD: Johns Hopkins Press, 1986.
  11. Rotberg, R. I. “Truth Commissions and the Provision of Truth, Justice, and Reconciliation.” In Truth v. Justice: the Morality of Truth Commissions, R. I. Rotberg, and D. Thompson, eds. Princeton, NJ: Princeton University Press, 2000.
  12. Teitel, R. G. Transitional Justice. New York: Oxford University Press, 2000.

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