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Compiled by Eric Brahm
Updated by Heidi Burgess in June 2013
Beginning in the mid-1970s, an unprecedented number of states have attempted the transition to democracy. Many of these new governments have been confronted with a legacy of human rights abuses committed within their own borders. While, in the past, what states did within their borders was of little concern to the outside world, the horrors of the Holocaust led to the development of international human rights law. By the late 1970s, a growing network of global human rights NGOs were serving a watchdog role to hold states to these legal commitments. This is not to suggest that countries address past crimes only because of pressure from the international community. Governments do so for self-interested reasons as well, responding to pressure from voters or for revenge against former opponents, and on principled grounds.
Transitional justice mechanisms have taken different forms and have been used in different combinations. Parallel to the development of these different mechanisms has been the elaboration of a variety of conceptions of justice ranging from punitive or retributive justice, to procedural justice, to restorative justice. Each has its benefits and its costs.
Historically, the norm has been to do nothing about a history of human rights violations. We have, however, seen the evolution of a range of mechanisms that are meant, in some form, to address them. For many, trials remain the ideal solution for holding individuals accountable. It is the most punitive, which is satisfying for those wanting perpetrators to get their 'just deserts.' Trials hold individuals, rather than collectives, accountable. If done properly, rules of evidence and other protections of the accused help ensure just outcomes.
Trials are not always feasible, however. The judiciary may be in poor shape or may even be complicit in the crimes of the past. Where abuses have been widespread, the judicial system may lack the capacity to handle the volume of individual perpetrators in a timely manner. What is more, evidence may be difficult to come by, because it was destroyed or events occurred far in the past. Similar problems exist for eye-witness testimony. There is also the danger that trials degenerate into 'kangaroo courts' where the government targets opponents. In rare cases where overwhelming pressure is brought to bear, the international community has created war crimes tribunals to provide a measure of accountability for violations of international human rights law.
Truth commission have emerged as a popular transitional justice alternative to trials. They are investigative bodies that seek to uncover the details of past abuses. Because they lack protections for the accused, they tend not to name individuals as suspected perpetrators, but focus on the institutional failings that allowed the crimes to occur and propose reforms to prevent repetition. Some assert truth commissions provide some measure of accountability by discrediting institutions and, by extension, individuals who led them. Their clearest benefit, according to supporters, is in the attention given to victims. In trials, the focus is on the accused, in protecting their rights. Truth commissions, by contrast, often allow victims to tell their story in a more relaxed setting, which many assert is theraputic. Similarly, it is often argued that the official acknowledgment provided by a commission's findings can help restore the dignity of victims. In providing an authoritative historical narrative, a truth commission's final report may help challenge different versions of history. Many assert the less confrontational nature and the attention to victims' needs make truth commissions better able to promote reconciliation.
In some instances, victims have been granted reparations as a form of justice for past abuses. In a few cases, monetary payments, whether in a lump sum or a monthly pension, have been provided. More common has been the provision of services. This may take the form of access to mental and physical health services or tuition breaks for education, for example. Frequently, however, countries with a history of human rights abuses are quite poor and face a host of difficult budgetary choices. As a result, reparations often take symbolic form such as constructing monuments or designating a national day in victims' honor.
Where large segments of the population were involved in past abuses, these mechanisms are often not practical. In former communist states where crimes were often less severe, but significant percentages of the population implicated, lustration has sometimes been pursued. This essentially involves a (usually temporary) ban on holding political or bureaucratic office as punishment.
Beyond Intractability Knowledge Base Materials Relating to Transitional Justice include:
- Truth Commission
- International War Crimes Tribunals
- The International Criminal Court
- Apology and Forgiveness
- Trauma Healing
- Human Rights Violations
- Types of Justice
- International Law
- Empathic Listening
- Narratives and Story-Telling
- Historical Facts
Other Online Resources
- International Criminal Tribunal for the former Yugoslavia
- Milosevic Trial Public Archive
- International Criminal Tribunal for Rwanda
- The Special Court for Sierra Leone
- Truth and Reconciliation Commission of South Africa Report
- East Timor's Commission for Reception, Truth and Reconciliation (CAVR)
- Peru's Truth and Reconciliation Commission
- Report of the UN Truth Commission on El Salvador
- Sierra Leone's Truth and Reconciliation Commission
- Chile's Truth Commission Report
- Argentina's Truth Commission Report
- Centre for the Study of Violence and Reconciliation (CSVR) in South Africa
- International Center for Transitional Justice (ICTJ) in New York
- United States Institute of Peace's Truth Commissions Digital Collection
- Institute for Justice and Reconciliation in South Africa
- Prison Fellowship International (PFI) Centre for Justice and Reconciliation in Washington DC
- The Redemptive Value of Truth Telling by Fr. Michael Lapsley, S.S.M.
- Facing the Truth with Bill Moyers
- Truth and reconciliation in South Africa by Victoria Brittain
- Religion and Ethics Newsweekly: Sierra Leone: Truth and Reconciliation January 10, 2003
- Interview with Carlos Urquilla, a Salvadoran human rights lawyer, on justice for past abuses there
- Talk of the Nation Interview with Archbishop Desmond Tutu, November 23, 1998
Book and Article Summaries
- Truth and Reconciliation Commission; South Africa
- Justice in Times of Transition
- Justice After Transitions
- The Ethics of Forgiveness
- Transactional Forgiveness Has Some Success in El Salvador
- Accounting for War Crimes in Cambodia
- Recent Tribunals Spur Creation of a Permanent International Criminal Court
- The Dilemmas of Transitional Justice