Transitional Justice

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Transitional Justice

• Introduction

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Transitional justice - definition

• The set of judicial and non-judicial measures
  that have been implemented by different countries
  in order to redress the legacies of massive human
  rights abuses. These measures include criminal
  prosecutions, truth commissions, reparations
  programs, and various kinds of institutional
  reforms. (International Center for Transitional
  Justice, New York)

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Transitional justice - definition

• The conception of justice associated with
  periods of political change, characterized by
  legal responses to confront the wrongdoings of
  repressive predecessor regimes. (Ruti Teitel,
  Transitional Justice Genealogy,
  http//www.law.harvard.edu/students/orgs/hrj/iss16
  /teitel.pdf)

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Transitional justice - definition

• For the UN system, TJ is the full range of
  processes and mechanisms associated with a
  societys attempt to come to terms with a legacy
  of large-scale past abuses, in order to ensure
  accountability, serve justice and achieve
  reconciliation. It consists of both judicial and
  non-judicial processes and mechanisms, including
  prosecution initiatives, facilitating initiatives
  in respect of the right to truth, delivering
  reparations, institutional reform and national
  consultations. Whatever combination is chosen
  must be in conformity with international legal
  standards and obligations. (UN Rule of Law)

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History of TJ

• TJ implemented after each wave of democratization
• 1st wave (1886-1926)
• 2nd wave (1945-1962)
• 3rd wave (1974-1995)
• Reckoning with the past gained in importance
  after WWII
• Term first used in reference to Latin American
  post-junta regimes (1980s)

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Cont.

• By 2011 many countries have already implemented
  TJ, and many others have repressive pasts that
  could/should be investigated
• TJ considered today a must for every new
  democracy see Arab Spring countries

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Transitional Justice

• TJ Transition Justice
• But
• Transition no longer needed for TJ
• TJ goes beyond justice

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Transition

• Regime change, major political transformation
  that affects political institutions and political
  culture
• From authoritarianism to democracy (Western
  Europe after 1945, Eastern Europe after 1989,
  some Arab countries after 2011)
• From conflict to peace and stability (Asia, Latin
  America after the 1970s, some African countries)
• Change in mentality within the same democratic
  political system (Canada, Australia, the US)

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Justice

• Judicial methods
• Prosecuting high-ranking and low-ranking
  officials and perpetrators in
• International tribunals (ICC, ICTR, ICTY)
• Hybrid courts with both international and
  national elements/staff (SCSL)
• National courts (Saddam, Ceausescu)
• Local, gacaca courts (Rwanda)

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Judicial methods cont.

• Reparation/compensation for victims and/or their
  surviving relatives
• Rehabilitation of former political prisoners
  annulling their sentence and recognizing their
  innocence and political persecution

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Non-judicial methods

• Truth (and reconciliation) commissions
• Programs for reconciling fractured societies
• Reforming repressive state institutions (army,
  police, secret police)
• Rewriting history books
• Opening museums, erecting statues and monuments,
  changing street names (Memorializing and
  remembering victims)
• Official apologies and condemnations delivered by
  presidents and prime ministers

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Cont.

• Diminishing the pensions and salaries of
  perpetrators
• Citizens opinion tribunals
• Lustration and purges
• Access to secret files
• Reintegration of former combatants
• Property restitution
• Forensic investigations
• Symbolic reparation medals, decorations

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Synonyms for TJ

• Justice during transition
• Politics of memory, politics of the past
• Coming to terms with the past
• Reckoning with the past
• Wiedergutmachung (making good again)
• Geschichtsbewältigung (the process of coming to
  terms with history) and Vergangenheitsbewältigung
  (the process of coming to terms with the past)

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Goals of TJ

• Truth
• Justice
• Reconciliation
• Not all methods are equally adept to reach all
  these goals at all times. Not all countries want
  truth, justice and reconciliation. And not all
  goals can be achieved at all times.

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Why some methods are adopted at some times?

• The methods countries adopt to deal with their
  past are determined by
• The nature of past repression
• Deep vs. wide repression (court trials vs.
  lustration)
• Property restitution is not applied in countries
  where no property was abusively confiscated
• The goals countries seek to reach (truth, justice
  or reconciliation)
• The politics of the present (old, tainted
  elites oppose, whereas new, untainted elites
  support TJ)
• International factors presence/absence of
  international interest for the country

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Effects of TJ

• Prevents future human rights abuses
• Strengthens rule of law by showing that nobody is
  above the law
• Provides reparations for victims and imposes
  sanctions on those responsible
• Reconstitutes the community
• A must for democracy (respect for human rights)
• Break with the repressive past
• Allows for elite replacement lustration/purges

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Dangers of implementing TJ

• Revenge, extra-judicial killings
• Perpetuates social conflict
• Divides society/community further
• Prevents full democratization by not allowing
  societies to move away from past issues

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Dangers of not implementing TJ

• Citizens cannot trust each other
• Crimes go unpunished impunity
• Cruel, undemocratic elites continue to dominate
  the political process
• Old elites can use their new positions to destroy
  evidence implicating them in human rights abuses
• Leaks of information will occur, leading to
  recurrent public scandals tainting the entire
  political class
• The past must be addressed, even if later (see
  Spain)

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Obstacles to TJ

• Large number of victims and perpetrators beyond
  capacity of judiciary
• Weak, corrupt, tainted and ineffective judiciary
• Amnesties negotiated through transition
• Statutes of limitations
• Categories not clear-cut (victims might also be
  victimizers)
• Crimes not recognized as such by previous
  systems legislation
• Perpetrators still influential

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What TJ refers to?

• Current political attempts to deal with the past
• Investigations of actions of governments (or
  institutions or organizations sponsored or
  supported by the government)
• Widespread human rights abuses not one killing
  (even if of a very important person)
• Usually abuses committed during a defined period
  of time (several years to a decade), but
  sometimes entire regimes (Apartheid, the Soviet
  regime)
• The past must be somewhat recent