The primary objective of a transitional justice policy is to end the culture of impunity and establish the rule of law in a context of democratic governance. The legal and human rights protection roots of transitional justice impute certain legal obligations on states undergoing transitions. It challenges such societies to strive for a society where respect for human rights is the core and accountability is routinely practiced as the main goals.
In the context of these goals, transitional justice aims at:. In general, therefore, one can identify eight broad objectives that transitional justice aims to serve: establishing the truth, providing victims a public platform, holding perpetrators accountable, strengthening the rule of law, providing victims with compensation, effectuating institutional reform, promoting reconciliation, and promoting public deliberation.
In order to be effective, transitional justice measures should be part of a holistic approach. Some human rights abuses can result in criminal prosecutions, particularly the most serious ones. Affirmative action policies are sometimes used to facilitate transition. The investigation and prosecution of serious international crimes, such as genocide , crimes against humanity , and war crimes helps to strengthen the rule of law by sanctioning those who violate laws with criminal penalties.
It also demonstrates that crime will not be tolerated, and that human rights abusers will be held accountable for their actions. It is the first international criminal court that helps end impunity for perpetrators of severe crimes.
It was established to investigate and try leaders of genocide, war crimes, and crimes against humanity in cases where countries are unable or unwilling to do so. These courts consist of both international and domestic justice actors.
They attempt to deliver justice that the domestic justice systems cannot provide alone due to lack of capacity or political will. Furthermore, hybrid courts attempt to strengthen domestic capacities to prosecute human rights abuses through the transfer of international legal skills and expertise. Reparations aim to repair the suffering of victims of human rights abuses. They seek to make amends with victims, help them overcome the consequences of abuse, and provide rehabilitation.
They may include financial payments, social services including health care or education, or symbolic compensation such as public apologies.
Transitional Justice and Development
Truth-seeking encompasses initiatives allowing actors in a country to investigate past abuses and seek redress for victims. These processes aim to enable societies to examine and come to terms with past crimes and human rights violations in order to prevent their recurrence. They help create documentation that prevents repressive regimes from rewriting history and denying the past. Truth-seeking measures may include freedom of information legislation , declassification of archives, investigations, and truth commissions. Truth commissions are non-judicial commissions of inquiry that aim to discover and reveal past abuses by a government or non-state actors; about forty official truth commissions have been created worldwide.
Memorials seek to preserve memories of people or events. In the context of transitional justice, they serve to honor those who died during conflict or other atrocities, examine the past, address contemporary issues and show respect to victims. They can help create records to prevent denial and help societies move forward. Memorials may include commemoration activities, such as architectural memorials, museums, and other commemorative events.
Public institutions, including the police , military , and judiciary , often contribute to repression and other human rights violations.
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When societies undergo a transition, these institutions must be reformed in order to create accountability and prevent the recurrence of abuse. Institutional reform includes the process of restructuring these state actors to ensure that they respect human rights and abide by the rule of law. Vetting is the process of eliminating corrupt or abusive officials from public service employment. For instance, in Afghanistan , election candidates in the and elections were vetted.
Several countries developed alternative personnel systems that provide for the inclusion of inherited personnel in exchange for their exposure or confession. One example of institutional reform is the removal of court officials involved in crimes of the fallen Tunisian regime. States in times of transition to democracy, since the early s, have been using a variety of transitional justice mechanisms as part of measures to account for the past and build a future democratic state.
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Mechanisms, such as trials, truth commissions, reparations, lustration, museums, and other memory sites have been employed either single-handedly or in a combined form to address past human rights violations. Diverse studies ranging from the decision-making process of a choice of strategy through to the implementation of the transitional justice policy and impacts on the transition and future stability of the society in question have been produced by scholars in recent years. One illuminating study in particular that has documented the dramatic new trend of transitional justice and democratization is by Kathryn Sikkink and Carrie Booth Walling In their research paper described as the "justice cascade", Sikkink and Walling conducting analysis of truth commissions and human rights trials occurring throughout the world from to revealed a significant increase in the judicialization of world politics both regionally and internationally.
Of the countries surveyed, 34 have used truth commissions, and 50 had at least one transitional human rights trial. Also, the transitional period may only result in a tenuous peace or fragile democracy.
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As has been noted in the discourse on transition to democracy, the dilemma has always been for new regimes to promote accountability for past abuses without risking a smooth transition to democracy. In addition, existing judicial system might be weak, corrupt , or ineffective and in effect make achieving any viable justice difficult. Observers of transitional justice application and processes, such as Makau W.
Mutua emphasized on the difficulties of achieving actual justice through one of the most prominent mechanisms of transitional justice, trials. More recently, Lyal S. Sunga has argued that unless truth commissions are set up and conducted according to international human rights law, international criminal law and international humanitarian law, they risk conflicting or undermining criminal prosecutions, whether these prosecutions are supposed to be carried out at the national or international levels. He contends that this risk is particularly pronounced where truth commissions employ amnesties, and especially blanket amnesties to pardon perpetrators of serious crimes.
On the other hand, criminal prosecutions should be better tailored to focus on victims and to place events in proper perspective. Sunga therefore proposes ten principles for making truth and national reconciliation commissions fully complementary to criminal prosecutions in a way that conforms fully to international law. This type of critique of transitional justice mechanisms could cause some scholars and policymakers to wonder which of the objectives outlined above are most important to achieve, and even if they are achievable.
Truth commissions could be characterized as a second-best alternative and also an affront to rule of law, because of the possibility that amnesty and indemnities will be made exchange for truth. These sets of challenges can raise critical questions for transitional justice in its application. Questions and issues, such as: Can the "truth" ever really be established?
Can all victims be given compensation or a public platform? Can all perpetrators be held accountable? Or is it sufficient to acknowledge that atrocities were committed and that victims should be compensated for their suffering? Also, one might argue that too narrow a focus on the challenges of the field runs the risk of making transitional justice seem meaningless.
However transitional justice aims at an ongoing search for truth, justice, forgiveness, and healing, and efforts undertaken within it help people to live alongside former enemies. Thus, even if the impact or reach of transitional justice seems marginal, the end result is worth the effort.
Another way of assessing attempts at transitional justice is to say that decision makers may have less control over the methods used to pursue such policies than they imagine. In fact, whatever their wishes, they may not be able to prevent such policies at all. James McAdams has demonstrated in his book, Judging the Past in Unified Germany , West German policymakers such as former chancellor Helmut Kohl wanted to close public access to the files of East Germany's secret police, the Stasi , but pressures from East German dissidents prevented them from doing so.
Though it is generally unanimous that both goals are integral to achieving reconciliation, practitioners often disagree about which goal should be pursued first: justice or peace? Literary scholars and historians have begun to use the concept of transitional justice to reexamine historical events and texts. Christopher N. It emerged, precisely, from the crucible of the effort to realize rights under less than auspicious circumstances; and in fact, it has significant results to show.
Over the last thirty years—a very short period of time as far as international normative change is concerned—transitional justice has contributed to the entrenchment of rights to justice, truth, and reparations, precisely by offering concrete and practical means for the operationalization of these rights. In the domain of justice, it has found ways of coping with amnesties often adopted by outgoing regimes to shield members from the consequences of their violations; it has contributed to the articulation of prosecutorial strategies to maximize the efficacy in the deployment of scarce investigatory and prosecutorial resources more often than not in hostile environments ; and it has invited experimentation with different venues where justice can be sought, from national to hybrid to international tribunals.
Similarly, transitional justice has contributed to the entrenchment of the right to truth, operationalizing it via the measure most closely associated with it, the truth commission, but also through other means such as commissions of inquiry, the organization and preservation of archives and other documentation efforts, as well as through carefully designed memorialization initiatives.
Quite aside from the compelling and sufficient moral and legal reasons to redress victims, in discussing the contributions of transitional justice to crisis prevention and peacebuilding, it is important to keep in mind two things. First, although redress is the immediate goal of transitional justice, its effects, when successful, are broader and include providing recognition to victims, fostering civic trust, strengthening the rule of law, and promoting social integration or reconciliation. Second, there is, conversely, plenty of evidence that unredressed human rights violations increase the risks of violence and conflict.
Transitional Justice and Development
In between, there are effective preventive initiatives involving changes in policing strategies, anti-torture mechanisms, limiting the jurisdiction of military courts, strengthening civilian oversight over security and intelligence services, and the vetting of personnel in the security sector and sometimes the judiciary. Now, of course, transitional justice is no magic bullet. It neither resolves everything, nor is its success unconditionally guaranteed. Amongst them are:.