Refocusing Transitional Justice to Focus Not Only on the Past, But Also to Concentrate on Ongoing Conflicts and Enduring Human Rights Crises

Abstract

Transitional justice’s normative foundations, orientation, and methodology favour a backward-looking focus in dealing with the legacy of violence in societies. This article suggests that transitional justice (tj) can be more effective if it broadens its scope to include processes and measures to engage with present day conflict, and human rights and humanitarian crises. The article examines the extent of the crises that exist in the world and how there have been increases in such crises particularly over the last decade. The article inspects the development of tj, its evolution and its focus on dealing with the past in order to determine whether a focus on dealing with the present, or the immediate past, is outside of what is envisaged as possible within a tj framework. The article studies the notion of transition to determine whether a transition is in fact necessary for tj to be applied. It argues that there is a need for tj to become broader in its orientation, and for it to become more relevant and more applicable in other circumstances. It is suggested that in order for tj to be criticized less, it should play a more enhanced role in conflicted places to reduce violence and human rights abuse and play a role in peacemaking and peacebuilding. It is contended that in conflict situations tj has, in the past, focused on justice and allied issues such as amnesty, but that there ought to be a more holistic approach to tj in conflict situations. The article also examines how tj can play an increased role in preventing atrocities, its role in justice and reducing impunity, in truth recovery processes, and in guaranteeing non-repetition of violations in the context of ongoing emergencies. It is argued that there are numerous feasible steps that can be taken during human rights disasters that help prepare for the future even if these steps are limited and cannot achieve that much during the existence of a crisis.