Transitional Justice Measures Research Articles

Historical Violence and Public Attitudes towards Justice: Evidence from the United States

ABSTRACT This article brings transitional justice scholarship to bear on the case of racial violence in the United States. We investigate how knowledge of racial terror lynchings shapes Black Americans’ support for symbolic and material transitional justice measures. We administer a survey with an embedded experiment to Black residents in Maryland, a US transitional justice pioneer. We provide select respondents with information about historical lynching violence and find that they are more likely to support symbolic transitional justice (e.g., apologies and memorial markers) than individuals presented with information on contemporary police killings. Regarding material transitional justice (e.g., monetary reparations and community projects), we find no significant differences between groups. Linked fate excepted, we do not find that key aspects of Black identity and the Black American experience (i.e., historical knowledge, police contact, church involvement and Black nationalist beliefs) moderate transitional justice attitudes. Our work indicates the promise and limits of information campaigns to mobilize support for transitional justice.

Rule of Law Backsliding and Memory Politics in Hungary

Introduction of the institutional framework of constitutional democracy and transitional justice in Hungary – Liberal constitutionalism as a victim of the authoritarian efforts of Viktor Orbán’s Fidesz party after the 2010 parliamentary elections – The legal governance of history contributing to the backsliding of democracy and the rule of law – Use of memory politics for the newly established authoritarian regime’s own political purposes – Transitional justice measures to help reconcile society and consolidate democracy – The current Hungarian government’s attitude towards public discussion of history

GEÇMİŞLE YÜZLEŞMEK: AVRUPA BİRLİĞİ SÜRECİNDE ARNAVUTLUK ÖRNEĞİ

Post-communist countries’ processes on their way to the European Union (EU) have extensively proceeded simultaneously with their transition from communism to democracy. The regime change led to a process of “coming to terms with the past” in the sense that these countries took transitional justice measures for the crimes and practices of the former authoritarian regimes. In this regard, Albania is a case worth considering as a part of the current EU enlargement agenda. As a country that was not involved in the ethnic wars between the former Yugoslavian countries, Albania experienced a different historical pace of a communist past with its peculiarities. This article mainly aims to analyse Albania’s coming to terms with its communist past and thus the transitional justice measures implemented in its EU process. The main argument of the article is twofold: First, EU impact was limited when Albania started its transitional justice period in the 1990s. This was due to the fact that progress in the EU process of Albania in terms of EU candidacy was enhanced in the 2000s and the impact of the strict EU conditionality became evident in these years as well. Secondly, the current international circumstances, in which the rivalry between Russia as well as China, and the West is at its peak in the so-called Western Balkans region, could allow Albania to be more closely aligned with the EU, which in turn may provide the necessary conditions for deeper reforms to come to terms with its past.

Memory Activism as Advocacy for Transitional Justice: Memory Laws, Mass Graves and Impunity in Spain

ABSTRACT∞ Transitional justice in Spain is still an ongoing process. This article examines the impact of memory laws and the rise of the radical right on transitional justice measures and the historical memory movement in Spain. It contends that the continued application of the 46/1977 Amnesty Law and the campaigning by radical right party Vox to repeal memory laws left a legal vacuum that precipitated interventions by memory activist groups. It is argued that these protest actions are a form of advocacy for participatory transitional justice. The article first focuses on Andalusia’s 2017 memory law and the rise of Vox in the region. Subsequently, it examines the effect of the state’s Democratic Memory Law (2022) on memory and justice measures and argues that both bottom-up approaches by civil society organizations and top-down measures by state actors are essential to transform Spain into a society anchored in the five pillars of transitional justice.

Neither oblivion nor reconciliation. An analysis of post-Francoist Spanish historical memory and Transitional Justice

Authoritarian regimes seek their preservation through the systematic repression of any dissidence, leading to the perpetration of crimes against anyone who might challenge the regime's values and legitimacy. Thus, when transitioning from an authoritarian regime to a democratic system, implementing a comprehensive transitional justice process is imperative to close old wounds and ensure reconciliation and reparation between the parties. Francoism, like every authoritarian regime, was not exempt from committing serious crimes against its enemies for more than three decades. Nonetheless, when Spain transitioned from a dictatorial to a democratic model, democratization was prioritized over justice. Despite the Spanish reluctance to adopt all necessary transitional justice measures during the democratization process, the Spanish Transition has been claimed to be an exemplary case to follow and study. This article aims to overview the three legal documents that were supposed to guarantee transitional justice to the victims and the Spanish society: the 1977 Amnesty Law, the 2007 Historical Memory Law, and the recently passed 2022 Law of Democratic Memory. This article concludes that although the 2022 Law of Democratic Memory has solved some of the flaws of previous legislation, there are still some key aspects of transitional justice which remain unaddressed.

‘A community of values’: unpacking U.S. intermediation in Latvia’s 2022 Holocaust restitution law

ABSTRACT Transitional justice scholarship has importantly analyzed how European groups use Holocaust-related legislation to create a unified political culture. While this research has made many valuable contributions, it does not include various other external actors, who also influence European political culture through transitional justice measures related to the Holocaust. This analysis expands the existing research about transitional justice and Holocaust restitution by analyzing the influential role U.S. intermediation played in Latvia’s 2022 Holocaust restitution law. The findings of this research do not contradict the existing scholarship; rather, they broaden it by unpacking how the U.S. influences European political culture through Holocaust restitution legislation.

Accountability for atrocity crimes in Ukraine: Gendering transitional justice

Nine months into the 2022 war in Ukraine, United Nations' investigators have already presented evidence that Russia committed war crimes and violations of international humanitarian law. Tens of thousands of atrocities are under investigation as possible war crimes, crimes against humanity, and acts of genocide, including evidence of torture, summary executions, detentions, forced deportations, and sexual violence. Many more will surely be documented before the conflict is over. Women trapped in conflict zones, women IDBs, and women refugees with children are especially vulnerable to gender-based violence, including conflict related sexual violence (CRSV) and trafficking. Together with international institutions, national governments, and local and global NGOs, Ukraine is actively documenting a range of atrocities, including gender specific violence and CRSV. This article discusses known rights violations thus far, and employs a gendered lens to explore possible transitional justice measures to provide accountability, redress and support for crimes that disproportionately affect women and girls.

Children of the Gulag, Long Road to Justice: The Challenges and Limitations of Reparations in Russia

ABSTRACT∞ The article examines the 2019 judgment of the Constitutional Court of Russia concerning the right to compensation of housing and right to return of the children of the victims deported by the Soviet state to the gulag or exile. Despite the favourable judgment of the Constitutional Court, the right to remedy for the victims was still unattainable. The article examines why this was the case by drawing on the absence of internal and external coherence of reparations programmes, the approach to reparations throughout history in the Soviet Union and Russia, the Law on Rehabilitation and other factors that rendered the reparations unobtainable. The article argues that in the absence of holistic transitional justice measures and accountability for crimes, separate laws and court judgments have been unable to deliver justice, resulting in a long, cumbersome and often humiliating and fruitless process for victims attempting to claim their rights.

Breaking the Promise: Transitional Justice between Tactical Concession and Legacies of Authoritarian Regime in Indonesia

ABSTRACT For more than two decades after the authoritarian regime ended in Indonesia, transitional justice remains an unfinished agenda in the new democracy. In every government leadership, transitional justice issues re-emerged and later vanished or failed at implementation. Post-Suharto’s presidents have always succeeded in getting support by including the transitional justice agenda in their campaigns and the early days of their leadership. Yet, none resulted in truth and justice as promised. Transitional justice is used as a tactical concession and has proven successful in gaining support for political winnings; it provides the avenue for one to gain political legitimacy and support, as it promises a distance from the previous regime. However, adopting transitional justice measures did not in any way lead to a change in state behaviour, let alone to institutionalizing and internalizing justice and accountability. I argue in this article that authoritarian regime factors contributed to the impunity for perpetrators and the lack of truth and acknowledgement about past abuses in Indonesia today.

The concept of transitional justice: genesis and features

Transitional justice is a set of measures related to systemic or large-scale human rights violations designed to compensate victims of violations and to facilitate or facilitate the transformation of political systems, conflicts and other conditions that may be the cause of violations. Different methods and components of transitional justice usually combine restorative justice measures (truth and reconciliation commissions) and a parallel system of punitive justice (mainly for those most responsible for the most serious crimes and their direct perpetrators). In addition, transitional justice measures are aimed at reforming society’s institutions by restoring the rule of law and ensuring the functioning of the judiciary in the long run. At the same time, their goal is to ensure that crimes committed during the previous period do not go unpunished. Transitional justice is based on the responsibility and compensation of victims. It recognizes their dignity as citizens and as human beings. Ignoring mass abuses is a simple way out, but it destroys the values on which any decent society can be built. Transitional justice raises the most difficult questions of law and policy imaginable. Putting victims and their dignity first signals the path to new commitments to ensure the safety of ordinary citizens in their own countries - from abuse of power and effectively protected from harm by others. The historical development of transitional justice is nonlinear, and its conceptual definitions are descriptive and inexhaustible. In this context, countries in conflict or already in conflict have the opportunity to choose the most appropriate measures and mechanisms to achieve the ultimate goal of transitional justice in that country - justice for victims of conflict and the restoration of peaceful life. At the same time, it must be borne in mind that transitional justice cannot be the embodiment of the justice of the victors, so the parties to the conflict must participate in the national dialogue, and the winners and losers must be held accountable. First of all, it should be noted that transitional justice is only one of the approaches that can be used to build peace, along with the deployment of peacekeeping peacekeeping forces and other measures. It is the combination of these measures that will guarantee the long-term restoration of peace and non-return to the conflict. In addition, such measures may take place with the involvement of various actors, such as: the actual state in which the conflict took place (or is taking place); the international community or both. Key words: human rights and freedoms, transitional justice, armed conflict, post-conflict period.

Conflict-related Sexual Violence in Kenya: A Case Study

The 2007 general elections in Kenya were followed by a period of organized and spontaneous violence. According to the International Criminal Court, crimes against humanity such as murder, deportation or forcible transfer of population, persecution, rape, and other inhumane acts took place in the country. Widespread conflict-related sexual violence reached high levels during the conflict, in both topdown and bottom-up dynamics. This article analyzes the forms of post-electoral violence and the notion of sexual violence as political violence; an 'organizational policy', as suggested by the ICC, or as a practice that is 'tolerated'. It further investigates transitional justice mechanisms applied in the country after the episode, including the work of the Truth, Justice and Reconciliation Commission and the ICC's prosecution strategy. Finally, it discusses the impact of such transitional justice measures regarding conflict-related sexual violence, not only concerning victims and witnesses, but the entire Kenyan society.

English

The last decades witnessed the emergence of transitional justice as a global norm which obliges post-conflict transitioning states to address systematic past human rights violations through purposeful judicial and non-judicial mechanisms. While its typical architecture focused on formal transitions, the dynamics of non-regime transitions and compliance is often neglected in transitional justice literature, and the measures also signify manifold challenges. This article attempted to assess the beleaguered transitional justice measures implemented in Ethiopia’s current troubled non-regime transition which came after the authoritarian and Marxist TPLF/EPRDF regime collapsed in 2018 after violent anti-government protest. Consequently, under the new hybrid elites’ leadership, host of justice measures were implemented but they unfolded in the absence of both typical transition and guiding transition roadmap. Through the lens of compliance and resistance in transitional justice, the article finds that rather than addressing legacies of atrocious past, the flawed and instrumentalist implementation of contested justice processes and the mismanagement of the narrow window of opportunity led to unprecedented societal violence and new political complexities. The Ethiopian case, therefore, reveals that seeking the retributive transitional justice measure in the absence of typical regime change and inter-elites bargain, and in an ethnically polarized political transition exacerbate inter-elite discord, bolster ethnic-supported resistance from predecessor elites, and harbor the risk of resurgence of new violence. Hence, it falls short of achieving the compliance with the transitional justice norm such as ensuring accountability (fighting impunity), adequately addressing past wrongs through judicial and non-judicial means and also ensuring non-recurrence of the same in the future.   Key words: Transitional justice, compliance, challenges, Ethiopia, non-regime transition.

Corporate Accountability for Involvement in Gross Human Rights Violations During the Brazilian Civil-Military Dictatorship – The Role of the Truth Commissions and the Case of Volkswagen Do Brasil

The article describes, analyzes, and evaluates transitional justice measures that were adopted in Brazil regarding corporate responsibility for complicity with the civil-military dictatorship in the practice of gross human rights violations. The main focus is on the performance of the National Truth Commission and the São Paulo State Truth Commission, as well as on the agreement reached between the Prosecution Service and Volkswagen do Brasil in the scope of the civil inquiry established to determine the company’s responsibility for complicity with the civil-military dictatorship. The measures are considered incipient and not problem free, though they represent a breakthrough in corporate responsibility related to transitional justice, encouraging further development and continuity through acknowledgment and the allocation of resources.

Regional Contexts of Transitional Justice in Korea: The Possibilities and Limitations of Interactions between Korea and Taiwan

이행기 정의는 과거 발생한 인권침해를 이행기 이후 국가가 해결하기 위해 취하는 조치이다. 학자들은 규범으로서의 이행기 정의의 국제적 확산을 규범의 생성, 확산, 내재화라는 생애주기를 이용해 설명했다. 하지만 기존 연구가 간과한 부분이 국제적 확산에 내포된 지역 수준의 상호작용이다. 이 논문의 목적은 동아시아 지역에서 일어난 이행기 정의 관련 상호작용을 한국과 대만 사례를 중심으로 분석하는 것이다. 이를 위해 첫째, 한국의 이행기 정의 경험을 개괄하고 국제적 및 동아시아 맥락에서 한국 사례가 가지는 위치를 조망한다. 둘째, 대만의 인권침해와 이행기 정의를 개괄하고, 한국 경험과의 상호작용을 살펴본다. 두 가지 특징을 발견했다. 첫째, 지역 전파가 한 국가에서 다른 국가로 일방적으로 일어나지 않았고 시차를 두고 교차해 가며 서로 영향을 주고받았다. 둘째, 한국과 대만처럼 양국의 인권침해가 다양하고 중층적인 양상을 보이면 두 국가의 상호작용 중에서 수평적 확산은 자연스럽게 일어날 수도 있다.Transitional justice is measures adopted by the government after political transition to address the past human rights violations committed by the former regime. Scholars used norm life cycle to explain the emergence, diffusion, and internalization of international diffusion of transitional justice norms. However, they tend to miss the dynamic of state-to-state interaction in the region which is an important building bloc of international diffusion. In this article, I conduct research on the interactions between Korea and Taiwan with regard to transitional justice measures. First, I overview transitional justice practices in South Korea and put the Korean case in the international and regional context. Second, I closely follow the interactions between Korea and Taiwan from 1990s to today. Two findings are worth noting. First, Korea-Taiwan interactions in transitional justice were not unidirectional but bidirectional relations over a long period of time. Second, horizontal diffusion, not vertical diffusion, is more likely when human rights violations are diverse and multifaceted as in case of Taiwan and Korea.

The women, peace and security Agenda through a Queer Theory lens

The two decades since the adoption of the first Security Council Resolution under the Women, Peace, and Security (WPS) Agenda has paved the way for much introspection and debate. While there have been several positive impacts such as the inclusion of women in peacemaking processes and in bringing to light the deliberate deployment of sexual violence in armed conflict as a tactic, there have also been several gaps in implementation. Since the UN Security Council passed Resolution 1325, legal, policy, and academic discourse has focused on armed conflict and women and has made an essentialist case for the inclusion of women in post-conflict peace processes. Among one of the major concerns with the WPS Agenda in its verbiage and implementation is the tendency to conflate 'gender' with 'women's issues.' As a consequence, non-binary gender identities in general, and their experience of armed conflict in particular, have been sidelined and rendered obscure. Sexual violence in conflict has been understood through a limited 'gender' lens, and the unique experiences of queer people in armed conflict have neither been acknowledged or addressed in policy, legislation, and transitional justice measures. Tis paper critically evaluates the WPS agenda and identifies gaps both in its language and implementation through National Action Plans. It presents the unique challenges of sexual and gender minorities in armed conflict and calls for a gender, peace, and security regime founded on the principles of intersectionality, queer theory, and the right to self-determination.

THE FAILURE OF TRANSITIONAL JUSTICE IN AFGHANISTAN: THE POLITICAL DIMENSION

In every phase of the conflict in Afghanistan, serious War Crimes and crimes against humanity were committed, resulting in mass killings and forced displacement of millions of Afghan civilians and political opponents. Based on relevant literature, this article investigates the political factors responsible for the failure of transitional justice in Afghanistan, particularly internal and external factors. The article also brings to the fore the impact of the dual process of state-building and peace-building on the implementation of transitional justice. In addition, the paper investigates why the 'Peace first and justice later' strategy proved to be unsuccessful in Afghanistan as the Taliban continued their atrocities, fighting Afghan forces and killing innocent people in suicide attacks. The paper finds that the failure of transitional justice in Afghanistan is due to both internal and external factors. Further, the paper finds that Afghanistan has never been a post-conflict state, unlike other countries that have experienced transitional justice processes. Therefore transitional justice measures were never implemented.

Transitional Justice measures implemented in Argentina: their psychosocial impact

Terrorism carried out by State forces is the most reprehensible action to be taken because the power and resources of a country are used to generate terror. Such power and resources are aimed at reaching certain political goals instead of serving the citizens. Transitional Justice has raised complex debates related to democratisation, human rights and the reconstruction of the State and its institutions after periods of severe social conflict. After the last military dictatorship in Argentina (1976-1983), different transitional justice mechanisms were implemented to cope with the consequences of the State’s collective violence: Truth Commission, criminal trials, institutional reforms, as well as reparatory gestures. A descriptivecorrelational study of group difference was developed, with a non-experimental cross-sectional design. It was aimed at analysing the psychosocial impact of transitional justice measures taken in Argentina. The study was conducted on a non-probabilistic sample composed of 576 participants. Findings support the effectiveness of combined Transitional Justice measures, the weakness of recognition of criminal acts and apologies, and significant differences in terms of violence affectation.
 Received: 20 September 2021Accepted: 25 November 2021

Pilot study to estimate sex by canine odontometrics in a Colombian population sample

Forensic humanitarian work occurring both in the judicial context, and in the novel extrajudicial model implemented in Colombia as a result of the peace treaty signed between the Colombian government and the FARC, requires the creation of new demographic standards for the Colombian population in the context of the forensic identification. In this paper we describe a new forensic demographic standard, consisting of a quantitative technique to estimate the sex of human remains resulting from the armed conflict, by measuring canine teeth in a sample of 162 adult individuals that belong to the contemporary Colombian skeletal reference collection that belongs to the National Institute of Legal Medicine and Forensic Sciences in Bogotá D.C. The results of the new technique indicate that the sex was correctly estimated in 82.1% of the cases when using upper canines, and it was correctly estimated in 77.8% of the cases when using lower canines. In the context of human rights violations, the fact that the Colombian conflict has resulted in about 120,000 disappeared, has led to the implementation of transitional justice measures based on a comprehensive justice system of truth, reparation and non-repetition. From the forensic arena, we propose a new methodology for sex estimation as a way to contribute to the process of justice, truth and reparation.

Democratizing Truth: An Analysis of Truth Commissions in the United States

Abstract Over the past half-century, numerous transitional justice (TJ) measures have been implemented globally. While much research has examined different TJ modalities in the aftermath of authoritarian rule and armed conflict, a growing body of work recognizes TJ outside of political transitions. We study a noteworthy export from transitional to non-transitional settings: truth commissions. Building on scholarship on TJ in established democracies, we introduce new quantitative data from the Varieties of Truth Commissions Project on truth commissions in an overlooked but significant case: the United States. The data captures 20 past, present and proposed official US truth commissions, most of them at the subnational level. Though their mandates vary considerably, they all address racial injustice, with an emphasis on anti-Indigenous and anti-Black violence. We elaborate on trends in the data and discuss the implications for unfolding efforts to reckon with historical and contemporary racial violence and injustice in the United States.

Commemorating Martial Law as Treason

How and why have Polish state institutions constructed an official public memory of martial law (1981–1983) despite plural interpretations and growing apathy and amnesia in the broader society? Between 1992 and 2018, parliament passed eight commemorative resolutions endorsing a single interpretation of martial law as treason. This political consensus is surprising given not only the lack of social consensus but also the political polarization that existed between and among post-communist and post-Solidarity parties. Drawing on LaClau and Mouffe’s discourse theory as well as Brian Grodsky’s theory of transitional justice measures as political goods, this article analyzes the official discourse of martial law as articulated in commemorative resolutions, transcripts of parliamentary deliberations, parliamentary journals, court rulings, and reports of committees, subcommittees, special commissions, and governmental offices. It considers how this discourse has been deployed to legitimate the ruling elite, attack political rivals, and justify controversial initiatives, policies, and reforms. It contributes to the literature on the politics of memory during times of political transformation by examining a case of surprising stability despite factors that would seem to favor change over time.