Transitional Justice Theory Research Articles

An initial scoping of transitional justice for global climate governance

ABSTRACTGeopolitical changes combined with the increasing urgency of ambitious climate action have re-opened debates about justice and international climate policy. Tensions about historical responsibility have been particularly difficult and could intensify with increased climate impacts and as developing countries face mounting pressure to take mitigation action. Climate change is not the only time humans have faced historically rooted, collective action challenges involving justice disputes. Practices and tools from transitional justice have been used in over 30 countries across a range of conflicts at the interface of historical responsibility and imperatives for collective futures. Central to this body of theory and experience is the need to reflect both backwards- and forwards-oriented elements in efforts to build social solidarity. Lessons from transitional justice theory and practice have not been systematically explored in the climate context. This article conceptually examines the potential of transitional justice practices to inform global climate governance by looking at the structural similarities and differences between the global climate regime and traditional transitional justice contexts. It then identifies a suite of common transitional justice practices and assesses their potential applicability in the climate context.POLICY RELEVANCEJustice disputes, including about historical responsibility and future climate actions, are long-standing in the climate context and could intensify with increased climate impacts and broadened mitigation pressures.Lessons from efforts to use transitional justice mechanisms could provide insight into strategies for balancing recognition of harms rooted in the past, while creating stronger future-oriented collective action.Several areas of transitional justice practice including: the combination of amnesties and litigation, truth commissions, reparations and institutional change could provide useful insights for the climate context.

Does One Size Really Fit All? Transitional Justice Processes and Commemoration in Post-conflict Santiago Atitlán, Guatemala

This paper describes Parque de la Paz located in Santiago Atitlan, Guatemala, a memorial space commemorating the community uprising that ousted military occupation from the city. The paper focuses on current community perceptions concerning the events' significance in history, and the parks use as a commemoration site. I will discuss the discrepancy in historical accounts, generational differences, and the marginalization of importance of the event within the community. An overview of transitional justice will be given in an effort to provide context. Current theories of transitional justice are reviewed as they apply to memorialization efforts in Atitlan Guatemala following the 30-year civil war that ended in 1997.

From heaven to hell in ten days: the genocide trial in Guatemala

ABSTRACTLatin America leads the world in efforts to prosecute perpetrators of gross violations of human rights in domestic courts. Domestic justice offers a number of advantages to international and hybrid tribunals: proceedings take place in close proximity to the site of the atrocities, facilitating victim participation; they are directed by domestic prosecutors and judges, thus contributing to local buy-in; and they can strengthen rule of law and legitimize fragile transitional democracies. The case of Guatemala appears to contradict such arguments, however, given the overturning of the landmark conviction of former dictator José Efraín Ríos Montt on charges of genocide and crimes against humanity and the ongoing impasse of the proceedings. Drawing on the author’s work as an international observer to the genocide trial, interviews with those directly involved in the case, and comparative research on human rights trials in Latin America, this article suggests an alternative reading. By situating the genocide trial in relation to the broader transitional justice process in Guatemala and in the region more broadly, it argues that current setbacks should be viewed as a backlash to initial transitional justice success that is neither unexpected nor fatal to the accountability process. Second, the article argues that the genocide case is illustrative of a victim-centred approach to human rights prosecutions that hold important lessons for transitional justice theory and practice, and examines the way in which victims of sexual violence were incorporated into prosecutorial strategies and helped to prove that a genocide had taken place in Guatemala. Finally, the article argues that despite the undoing of the genocide verdict, the very fact that the trial took place is historically and politically significant, both for survivors and for the construction of collective memory in Guatemala and Latin America as a whole.

Gendered Narratives: Stories and Silences in Transitional Justice

Stories told about violence, trauma, and loss inform knowledge of post-conflict societies. Stories have a context which is part of the story-teller’s life narrative. Reasons for silences are varied. This article affirms the importance of telling and listening to stories and notes the significance of silences within transitional justice’s narratives. It does this in three ways. First, it outlines a critical narrative theory of transitional justice which confirms the importance of narrative agency in telling or withholding stories. Relatedly, it affirms the importance of story-telling as a way to explain differentiated gender requirements within transitional justice processes. Second, it examines gendered differences in the ways that women are silenced by shame, choose silence to retain self-respect, use silence as a strategy of survival, or an agential act. Third, it argues that compassionate listening requires gender-sensitive responses that recognize the narrator’s sense of self and needs.

Through the Looking Glass: Transitional Justice Futures through the Lens of Nationalism, Feminism and Transformative Change

In reflecting on the contemporary challenges and future directions of transitional justice theory and practice, this article addresses causality, accountability and political form in a triangulated assessment of nationalism’s power and ‘stickiness’ in the present formulations of transitional solutions. Addressing the identity politics of transitional justice brings us to assess the political forms that enable, define and consume transition with a particular hew to power-sharing and consociationalism-type arrangements in the aftermath of systematic atrocity. The authors provide a pragmatic, perhaps cynical account of the triumph of consociationalism as the preferred transitional accommodation, and point to the ‘dark side’ of governance arrangements in postconflict settings with implications for understanding cycles of violence and repeat conflict patterns. In both contexts, we deploy a feminist lens to understand the implications for women and gender transformation emerging from our framing of the politics of transitional justice in the contemporary moment.

Rethinking Transitional Justice, Redressing Indigenous Harm: A New Conceptual Approach

Transitional justice has become the dominant international framework for redressing mass harm. To date, however, transitional justice has not adequately accounted for past colonial harms and their ongoing effects. How to confront and redress structural harm has been beyond the purview of its framework. Taking ongoing historical and structural harms against indigenous peoples in Australia as a reference point, we draw on the insights of settler colonial theory to propose a new justice model for transitional justice. We argue that a commitment to structural justice will enhance the ability of transitional justice to recognize and address structural injustice in settler colonial and other contexts. By elaborating the concept of structural justice with reference to postcolonial and settler colonial theory, this article sets out to support the development of a more robust theory of transitional justice.

Bespoke Transitional Justice at the International Criminal Court

This chapter grapples with the question of whether the International Criminal Court should be conceptualized as a mechanism of transitional justice. Most schools of thought insist that transitional justice is either an inappropriate or an unrealistic goal for the Court. Some scholars have proposed that the Court might more accurately be theorized as seeking to achieve political goals through “juridified diplomacy”. Others suggest that the Court should speak primarily to a global, rather than local, audience. A third school of thought criticizes international criminal law as insufficiently focused on the preferences of societies affected by mass violence. Going one step further, some theorists suggest that the Court should be set aside in favor of mechanisms that are more responsive to local preferences. Though the incorporation of the International Criminal Court into a “locally owned” transitional justice paradigm faces substantial challenges, this chapter draws on a theory of bespoke transitional justice to suggest ways in which this knotty relationship might be better designed.

Towards a Unified Theory of Transitional Justice

This article argues in favour of theorizing transitional justice in established democracies. Using a New Zealand example, the article employs liberal theory to develop a legitimating account of transitional justice. This account not only offers ways of replying to those who critique the transitional justice aspirations of established democracies but also constitutes a response to those who argue against the coherence of transitional justice as a theory. Although transregime legitimation is certainly not transitional justice’s only role, it is an important function and provides resources for a unified political theory of transitional justice.

Qual será a verdade do jeitinho brasileiro? Perspectivas sobre a Comissão Nacional da Verdade do Brasil

After 31 years of dictatorship, military power was transferred to a civilian president for 27 years ago. A new Constitution was ratified 24 years ago and, since then, Brazil has has six presidential elections. The last three elected presidents can be considered victims of the old regime and they suffered persecutions of different natures, such as exile, imprisonment and torture. In 2012, a National Truth Commission has been implemented with the aim of establishing the memory and the truth about human rights violations committed by State agents over the past 66 years. What factors have determined it to be created now and not 20 years ago? What results can be expected of this committee? This article seeks to analyze the context and the reasons for creating the committee and its possibilities and limitations, to the theories of criminal law and transitional justice. Key words: human rights, National Truth Commission, Brazil, transitional justice.

“Like So Many Antigones”: Survivance and the Afterlife of Indigenous Funerary Remains

Since the passage of the Native American Graves Protection and Repatriation Act of 1990, American Indian funerary remains have been returned from museums, research laboratories, academic institutions, and federal agencies to the tribal communities from whom the deceased originally derived. According to law, however, such repatriation requires first that those tribal communities furnish blood evidence of kinship with the remains. One objective of this article is to stage an intervention in the “ethics of burial” and “politics of dead bodies” debates orbiting around the indigenous repatriation issue. More specifically, however, I mean to cast the indigenous repatriation movement in terms of the broader concerns captured by political theories of transitional justice and reconciliation. The argument I defend suggests that in mapping Sophocles’ fifth century Athenian tragedy, The Antigone, onto these movements some important and hitherto unexplored questions about the meaning of repatriation as a tactic of political repair for historical injustices associated with the violent colonial expropriation of territories can be invoked and grappled with. In particular, I argue that the Antigone reveals a theory of repatriation based on reconciliation as survivance rather than recognition.

Social repair in divided societies: integrating a coexistence lens into transitional justice

This paper explores the importance of integrating a coexistence lens into transitional justice theory and practice. Transitional justice seeks to address a legacy of large-scale past abuses. In societies that have suffered from violent intergroup conflict, this legacy includes divided communities and widespread distrust and fear of the ‘other’. Transitional justice processes and mechanisms, however, are unlikely to repair intergroup relationships, transform communities or eliminate tensions in the absence of specific attention to promote coexistence. The field of coexistence provides a framework for thinking about intergroup relations and interdependence. Coexistence initiatives—such as dialogue facilitation, intergroup projects and associations aimed at achieving shared goals, and media campaigns designed to reframe the ‘other’—are essential to restoring trust, transforming perceptions and rebuilding relationships. Looking at countries that have experienced violent intergroup conflict, in particular Bosnia and Herzegovina, the paper provides examples of coexistence initiatives that have achieved successes in changing attitudes, repairing relationships and strengthening communities—and discusses their potential to contribute to transitional justice processes and mechanisms.

Interactions in Transition: How Truth Commissions and Trials Complement or Constrain Each Other1

While there have been recent advances in theories of transitional justice, there remains a lack of theory about how truth commissions and human rights trials interact with each other to facilitate or constrain efforts at transitional justice. This is an important deficiency to remedy because numerous countries long ago leapt ahead of transitional justice theory by sequencing trials and truth commissions, while the International Criminal Court (ICC) will have to manage relationships with truth commissions as its work accelerates. The aim of this article is to use current literatures on transitional justice and political transitions to build a theory of how trials and truth commissions interact with each other. This will be done in three steps. First, the article will elaborate the goals and critiques of trials and truth commissions in order to provide a foundation for how they might interact. Second, the article will consider these institutions in sequence to understand how they interact when trials operate first, truth commissions first, or when they operate simultaneously. Third, the article will consider these sequences in context to understand how legacies of violence and its termination may affect their relationship. This effort is meant to clarify the theoretical issues at stake in the sequencing of these two important institutions, stimulate debate, and inform institutional design.

The Mythology of Transition, Transformation and Development

The interactions between transitional justice and development have been largely disregarded by scholars and practitioners. The limited literature exploring their interactions has engaged only with the discourses at the practical or technical levels, and this literature has been couched exclusively in terms of achieving mutual objectives. This paucity of literature and their superficial analyses may be products of uncertainties in the scope and objectives of these fields. This paper thus examines the contemporary myth of transitional justice and development. Recent works by scholars and practitioners have presented transitional justice and development as parallel socioeconomic and political projects, but nonetheless conceptually separate fields and discourses, which engage in marginal intersection or cross-fertilisation. This paper argues that this forced conceptual dichotomy has evolved into a modern mythology, the logic of which merits further scrutiny than has otherwise been documented in existing literature. It seeks to deconstruct this emerging mythology by presenting a Foucaultian analysis of transitional justice, documenting its shared metaphysical foundations and continuing interface with Beard‟s genealogy of development. Further, it examines the interaction of common themes that link the post-fragmentation heuristic episodes of transitional justice and development discourses, and proposes that these themes may provide a basis for formulating a unified theory of transitional justice and development. Ultimately, as one of the first efforts to address this relationship, it also seeks to advance discussion of the manner in which to most effectively pursue transitional justice and development objectives, bridging ideal conceptions of each field with the contingent political exigencies of particular cases.

Re-Ordering Justice: Towards A New Methodological Approach to Studying Transitional Justice

Scholars and policymakers have turned increasing attention to questions of transitional justice, those legal responses to a former regime’s repressive acts following a change in political systems. Although there is a rich, interdisciplinary literature that addresses the value of various transitional justice measures, theoretical arguments for how and under what conditions we should expect to see these measures implemented tend to gravitate to intuitively appealing relative power considerations. But attempts at parsimony have tended to leave the dependent variable either overly restrictive or poorly defined, yielding theories that are difficult to test. In this article, the author proposes a ‘transitional justice spectrum’ based on a hierarchical series of possible accountability mechanisms and designed to allow researchers to conduct more rigorous, cross-national tests of justice arguments. The objective here is not to posit a broad theory of transitional justice, but to open the debate into a methodological weakness in the transitional justice literature. The article includes seven accountability mechanisms: cessation and codification of human rights violations; condemnation of the old system; rehabilitation and compensation for victims; creation of a truth commission; purging human rights abusers from public function; criminal prosecution of ‘executors’ (those lower on the chain-of-command); criminal prosecution of commanders (those higher on the chain-of-command).

Transitional Justice. I conti con il passato

- Transitional justice refers to the admission of wrongdoing, the recognition of its effects and the acceptance of responsibility for those effects. It provides an alternative to vengeance and a measure of accountability for the perpetrators and justice for the victims by establishing truth. The article considers the different ways of taking account of the past (from direct retaliation to amnesty, from prosecution of perpetrators responsible for large-scale state brutality to public discussion about human rights abuse and shaping of collective memory) and focuses the emergence of the paradigma of restorative justice. In amending tragic historical immoralities, restitution, reparation, apology, and reconciliation replace a universal comprehensive standard of criminal justice with a negotiated justice among opposing parties in specific cases. Drawing on the discussion of some recent studies (Teitel, Elster, Barkan, Frei, Koenig) concerning the role of criminal trials, lustration policies and truth commissions in democratic transitions, the article attempts to outline even broader conclusions about a theory of transitional justice.

Ethical Advice: Conflict Management vs. Human Rights in Ending Civil Wars

The theory of transitional justice, usually either war crimes tribunals and/or truth commissions, rests on the assumption that after internal conflict, societies must learn and accept the truth of what sort of violence has occurred in order to build a functioning, united society, and that any solution which omits such policies should be rejected. There is no empirical support for this assumption. Moreover, acting on it implies that civil war should be continued. Conflict resolution theory asserts that all major players, including those who have committed atrocities, must be involved in the settlement if it is to be stable. This seems a more appropriate strategy, especially when dealing with someone else's country and war.

Transitional Justice and Peacebuilding after Mass Violence

1 Since the end of the Cold War, the international community has become increasingly involved in peacebuilding and transitional justice after mass violence. This article uses lessons from practical experience and theories of peacebuilding and transitional justice to develop a model of transformative justice that supports sustainable peacebuilding. This model is holistic and transdisciplinary and proposes a focus on civil society participation in the design and implementation of transitional justice mechanisms. It requires us to rethink our focus on ‘transition’ as an interim process that links the past and the future, and to shift it to ‘transformation,’ which implies long-term, sustainable processes embedded in society and adoption of psychosocial, political and economic, as well as legal, perspectives on justice. It also involves identifying, understanding and including, where appropriate, the various cultural approaches to justice that coexist with the dominant western worldview and practice. A syncretic approach to reconciling restorative and retributive justice is proposed as a contribution to developing transformative justice and sustainable peacebuilding. The development of this transformative justice model is informed by field research conducted in Cambodia, Rwanda, East Timor and Sierra Leone on the views and experiences of conflict participants in relation to transitional justice and peacebuilding.

Ressentiment as Suffering: On Transitional Justice and the Impossibility of Forgiveness

This essay examines the politics of transitional justice through the notion of forgiveness. Conventional notions of forgiveness and justice, as they have been adopted for and utilized in the numerous truth commissions around the world as well as in the theories supporting the work of the commissions, corrupt the transitional process into what Derrida aptly calls the conditional forgiveness of “social therapy. ” One major shortcoming in these theories has been their inability to adequately deal with the issue of resentment, i.e., the victim who refuses to forgive. Through a closer investigation into the phenomenology of ressentiment (Nietzsche, Max Scheler, Jean Améry), the essay proposes to interpret resentment as a continuation of the suffering that the victim has originally endured. Juridified and subjected to the therapeutic rationalizations of truth commissions, resentment coagulates into a suffering with a utilitarian value. Finally, this essay discusses the possible ways in which a theory of transitional justice could appropriately address the victim’s resentment thus rendering his suffering “just” and making unconditional forgiveness possible.

Divergent responses to a common past: Transitional justice in the Czech Republic and Slovakia

This article addresses the question of why, despite having shared a communist regime and a revolution against it, the Czechs and Slovaks have dealt differently with that regime's former high officials and secret police agents, files, and collaborators. I argue that this divergence challenges theories of transitional justice put forward by such scholars as Samuel Huntington and John P. Moran, who respectively identify transition type and levels of regime repression as the key factors shaping a new regime's response to its predecessor. I propose that a stronger influencing factor is the level of the preceding regime's legitimacy, as indicated during the communist period by levels of societal cooptation, opposition, or internal exile, and during the post-communist period by levels of elite re-legitimization and public interest in “decommunization.” In drawing this link between past and more recent developments, I also argue that struggles over transitional justice issues should not be considered exclusively as the “politics of the present.” Finally, I examine the cases of Poland, Hungary, and Romania to assess the broader applicability and limits of my theory.