Assessing the Efficiency of Transitional Justice

Abstract

Transitional (hereinafter TJ) has originally been associated with a from one (totalitarian, authoritarian) regime to another (democratic) or from war/armed conflict to peace. After all, the use of the term „transitional‟ implies some kind of transition or change, that is, something grander than mere „justice‟ responses in the form of limited and selective reactions to rights violations. Of course, such a narrow, transition-focused reading of TJ would exclude situations where, like in Colombia or – perhaps – Palestine/Israel, the parties to an ongoing conflict want to make use of the toolkit of TJ. It is for this reason that a broader, justice-focused reading of TJ appears more appropriate. Accordingly, in its current form, TJ refers essentially to the adequate responses to (human) rights violations, irrespective of the nature of the underlying conflict (negative peace or armed conflict within the meaning of IHL). TJ, so understood, entails investigation and prosecution, reparations, truth-seeking, reconciliation, institutional reforms, vetting, and other measures, which, alone or in combination, all aimed to provide adequate responses to rights violations. These measures may be judicial and/or non-judicial and involve domestic and/or international state and non-state actors. A more ambitious approach goes beyond the mere focused responses to violations and advocates a structural transformation of the society concerned. While such a concept of transformative justice rightly points to some of the shortcomings of TJ and stresses the importance of socioeconomic injustice and inequality as the root causes of violence and rights violations, it faces even more problems regarding its actual implementation on the ground.