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Safety, Security and Accessible Justice

Transitional justice

This guide aims to provide key texts on justice in countries experiencing transition after conflict and/or authoritarian government. It includes key texts on the advantages and limitations of a range of approaches to transitional justice.

Page contents

Definition of topic and content

Where is a good place to start?

Context and non-state actors
Poverty reduction and transitional justice

Transitional justice mechanisms

What's new? Children and truth commissions
What other resources are available on the GRC Exchange?
Additional information resources

Definition of topic and content

Transitional justice is concerned with countries experiencing transition from authoritarian rule and/or conflict to democratisation and/or peace. Countries experiencing such transitions often face a legacy of human rights violations. Transitional justice is about the various judicial and non-judicial approaches to dealing with that legacy. This may involve a variety of aims, including:
to resolve the divisions in society caused by the human rights violations
to address and attempt to repair the impacts of the violations on individuals and society
to provide justice and satisfaction for victims
to restore rule of law
to reform institutions by promoting human rights and democratisation
to ensure that the human rights violations are not repeated and to promote a stable peace

Recently, new approaches that seek to address economic and social rights as well as civil and political rights have been suggested.

Where is a good place to start?

A central issue discussed in the literature on transitional justice is the question of what justice and reconciliation should entail and how to balance often conflicting imperatives. For example there are potential contradictions between certain forms of justice for victims and the need for a stable and peaceful transition. These considerations need to be addressed by all transitional justice programmes. The IDEA handbook below provides a useful introduction to these debates by offering a policy-oriented vision of reconciliation and justice based around the central importance of democratic institutions and processes.

Bloomfield, D., Barnes, T. and Huyse, L. eds, 2003, Reconciliation after Violent Conflict. A Handbook, International IDEA, Stockholm.
The document defines key concepts, discusses the policy implications and offers practical guidance on how reconciliation processes can be most effectively designed and implemented.
Full document available online

Context and non state actors

The national and international contexts often have crucial impacts on attempts to achieve transitional justice. This means that the selection and design of transitional justice programmes must be unique for each case. Factors that affect transitional justice include the regime's level of legitimacy and political security, its relationship with human rights violators, the strength of opposition groups and civil society and the role of international actors. The documents below discuss the impact of international actors, the political context, and the potentials for civil society engagement in transitional justice.

The role of the International Community:

Mani, R. 1998, 'Conflict Resolution, Justice and Law; Rebuilding the Rule of Law in the Aftermath of Complex Political Emergencies'
This article provides a useful assessment of how the international community can promote the rule of law in post-CPE situations. The author points to the need for greater coordination between international actors, for a clearer framework for putting the rule of law into practice, for international actors to respond to opportunities presented by particular stages in transition, and the need to pay more attention to the needs and culture of the local population.
Full document available through: BLDS document delivery service. Please access full summary and then click on the link for "BLDS Document Delivery Service".

The political context:

Zalaquett, 1995 'Confronting Human Rights Violations Committed by Former Governments: Principles Applicable and Political Constraints'
This extract from a 1989 article by Zalaquett offers important insights into how the realities new states face affect their ability to provide transitional justice. The author explores the design implications for developing international standards on government responses to past human rights violations, including the impact of political constraints experienced by states in a range of transition scenarios.
(document summary and access to text available shortly)

The role of civil society and stages of transition:

Wilson, R. A., 1997, 'The People's Conscience? Civil Groups, Peace and Justice in the South African and Guatemalan Transitions'
This is a useful analysis of two well-known case studies. The author evaluates the different strategies used by civil society groups to promote justice, claim civil, political, social and cultural rights and to build peace. The author demonstrates how the influence of civil society varies during different stages in the transition. The author concludes that though civil society groups may have to reinvent themselves in post-war contexts, their independent and critical role in transitional justice is vital.
(document summary and access to text available shortly)

Poverty reduction and transitional justice

The transitional justice literature focuses almost exclusively on addressing past civil and political human rights violations and war crimes. While these issues are of fundamental importance, it has recently been suggested that social and economic rights deserve more attention in periods of transition. The publication below develops the idea that there are three dimensions of justice for states undergoing post-conflict transition.

Mani, R. 2002, Beyond Retribution: Seeking Justice in the Shadows of War, Polity Press, Cambridge in association with Blackwell Publishers, Oxford.
Mani develops the idea that there are three dimensions of justice for states undergoing transition. These are redressing the human rights abuses and war crimes of the past; restoring the rule and law and justice system; and tackling social injustice and restoring distributive justice.
Full document available through: BLDS document delivery service. Please access full summary and then click on the link for "BLDS Document Delivery Service".

The following scoping paper, carried out by Jane Alexander for DFID, contends that transitional justice has the potential to promote poverty reduction and the achievement of the Millennium Development Goals.

Alexander, J. 2003: A Scoping Study of Transitional Justice and Poverty Reduction. Final Report for DFID.
Using DFID's approach to poverty reduction, Jane Alexander suggests that effective transitional justice may be essential for targeting poverty in its widest sense, including vulnerability, powerlessness and discrimination as well as material disadvantage.
(document summary and access to text available shortly)

Transitional justice mechanisms

There are a wide range of transitional justice mechanisms (TJMs). TJMs have a variety of aims, so transitional justice programmes tend to combine them in order to promote a more comprehensive form of justice tailored to the particular context.

The various mechanisms include:

Truth commissions

Trials

Reparation
Amnesties

Lustration

Traditional justice systems

Institutional reform and capacity building





In the transitional justice literature, most attention has been paid to truth commissions and trials, particularly international trials. As demonstrated above, broader conceptions of justice engender the need for a range of approaches, particularly institutional reform and reparations. The following publications provide an introduction to the potentials of each transitional justice mechanism, and their potential risks that need to be addressed.

Truth commissions: Truth commissions are non-judicial commissions established to investigate human rights abuses, usually those perpetrated by military, government or other state institutions. IDEA define their primary purpose as being: 'to provide an accurate record of who was responsible for extra-judicial killings, such as assassinations and "disappearances", massacres, and grievous human rights abuses in a country's past, so that the truth can be made part of a nation's common history and the process of national reconciliation can be facilitated.'

Wilson, R.A., 2001, The Politics of Truth and Reconciliation in South Africa: Legitimising the Post-Apartheid State
This is a very important work on transitional justice, offering a very thorough examination of South Africa's Truth and Reconciliation Commission (TRC). Chapter 2: 'Technologies of Truth: The TRC's Truth-making Machine' looks at how the South African Truth and TRC worked, and how its effectiveness was limited by the way it operated and its approach to truth.
(document summary and access to text available shortly)

Bloomfield, D., Barnes, T., and Huyse, L. (eds) 2003, 'Truth Telling', chapter 8 in Reconciliation after Violence Conflict. A Handbook
This chapter offers a recent policy-focused outline of truth commissions, what they entail, their potential benefits and risks, their main activities, and issues involved in their design
Full document available online

Trials: The different forms trials can take (domestic, international and "mixed" courts, transnational criminal and civil proceedings), and their varying implications, are clearly outlined in the scoping study by Jane Alexander, above.

Harris, P. and Reilly, B. (eds.), 1998, 'Section 4.10 Reckoning for Past Wrongs: Truth Commissions and War Crimes Tribunals'
This handbook provides a clear and accessible guide to war crimes tribunals, including their strengths and weaknesses, and issues for practitioners to take into account.
Full document available online
(document summary available shortly)

Reparation: The term reparation involves a variety of measures taken with the aims of redressing past wrongs and restoring property or rights, and providing compensation, rehabilitation and satisfaction for victims. These measures can take the form of provision of goods, services, sums of money, or legal rights, such as citizenship and nationality, and symbolic forms of recognition, including disclosure of truth, apologies and commemoration of victims. Reparations can be judicial or non-judicial, and can be allocated to individuals or collectively. Examples of countries carrying out reparations programmes include Chile, Argentina and South Africa.

Bloomfield, D., Barnes, T., and Huyse, L. (eds) 2003, 'Reparation', chapter 9 in Reconciliation after Violence Conflict. A Handbook
Chapter 9 is a practical guide to introducing a reparations programme. It provides useful information on the various aspects of reparations and the various forms they take, legal information and advice on issues such as whether to take a judicial or non-judicial approach and how to fund the programme.
Full document available online
(document summary available shortly)

Amnesty: The granting of amnesty for perpetrators of human rights abuses has often been justified on the grounds of promoting societal reconciliation. It may be a tactical decision where former human rights abusers retain considerable power in relation to the new regime. However, it has come under criticism, particularly because it can create impunity, encouraging the continuation of human rights violations. The advantages and risks associated with amnesty are discussed in the scoping paper by Jane Alexander, Section 4.7, above. The risks of both amnesty and retributive justice are outlined in 'Justice', Chapter 7 of Reconciliation after Violent Conflict. A Handbook.

Lustration: This term refers to measures aimed to exclude individuals who have carried out human rights violations from public office. These measures include dismissal or forced retirement of those currently in office, or adding criteria to recruitment procedures to prevent such individuals from entering public employment in the future. Lustration has been attempted in former communist countries in Eastern Europe, where it encountered a number of problems. It has rarely been used in post-conflict situations. The objectives and risks associated with lustration are discussed in the scoping paper by Jane Alexander, Section 4.7, above.

Traditional justice systems: There are a variety of debates around the use of traditional or quasi-traditional judicial systems as TJMs. On the one hand, they incorporate local versions of justice, which may in other cases be replaced by euro-centric justice models. However, they may entrench local-level power inequalities in the transitional justice processes, marginalising certain groups.

Uvin, P.S., 2000, The Introduction of a Modernized Gacaca for Judging Suspects of Participation in the Genocide and the Massacres of 1994 in Rwanda
This paper provides a case study of an important initiative to use traditional justice mechanisms in Rwanda. It provides useful advice to donors on how to support the gacaca, while avoiding their negative implications.
Full document available online

Institutional reform and capacity building: These include judicial, legal, police, penal, and military reform, allowing the democratisation of institutions and the establishment of the rule of law, to help ensure that state abuses of human rights are not repeated. In addition, reform and capacity building of these institutions are important in order for other transitional justice mechanisms to work effectively.

Ziegler, M. and Nield, R. 2001, From Peace to Governance: Police Reform and the International Community
This report summarises the findings of a conference, 'Police Reform and the International Community: From Peace Processes to Democratic Governance'. Despite the political risks, the positive aspects of police reform have encouraged donors to participate. Police reform can support demilitarisation and democratisation, boost economic growth, reduce poverty, and improve respect for human rights. However, case studies from Central and South America and South Africa highlight the difficulty of achieving reform where violent crime is on the rise.
Full document available online

What's new on this topic? Children and truth commissions

The specific needs of children have rarely been addressed in detail in the literature on transitional justice. The Truth and Reconciliation Commission in Sierra Leone is the first case where the needs of child soldiers have been incorporated in the design of a transitional justice mechanism. The publication below was created out of a UNICEF meeting to discuss how this aim could best be achieved.

Children and the Truth and Reconciliation Commission for Sierra Leone, 'Recommendations for policies and procedures for addressing and involving children in the Truth and Reconciliation Commission (UNICEF National Forum for Human Rights UNAMSIL/Human Rights)'
This report offers recommendations for policies, guiding principles and detailed special procedures for the involvement of children in the proceedings of the TRC. It recommends that the special procedures be applied to all children. The TRC's role is seen as both to create an official record of what happened to children during the conflict in Sierra Leone, and to facilitate the reintegration of children back into their communities or host communities.
Full document available online
The Appendix includes a number of useful papers on a range of approaches to meeting children's needs in TRCs and other aspects of transitional justice, a paper that critically analyses past Truth Commission records with children, and background papers on Sierra Leone.
(document summary available shortly)

What other resources are available on the GRC?

The GRC covers the following issues in other sections of the website:
'Governance aspects of security sector reform' under the conflict key capability, featuring key texts on demobilisation and reintegration, civilian oversight and accountability, and donor approaches and interventions'
A page on 'Accessibility' under the safety, security and access to justice Key Capability, featuring key texts on legal and judicial reform, traditional and information justice systems and penal reform
A page on 'Crime prevention' under the safety, security and access to justice Key Capability, featuring key texts on police reform.

Key texts
This resource does not attempt to provide an exhaustive list of documents relevant to transitional justice. For a thorough search of the whole GRC Exchange site please refer to the Information Database.

Training and events
A searchable database of courses and conferences in each of the key governance areas is available on the GRC Exchange site.

Additional information resources

Among the most useful sites are:

International Internet Bibliography on Transitional Justice
This page includes around 2000 texts in English and German on transitional justice mechanisms, international law, history and democratisation, and a country index featuring texts from Africa (particularly South Africa), Western and Eastern Europe, Asia, USA and Latin America. This bibliography is a joint project by the Law Faculties of the University of the Western Cape, Cape Town, and Humboldt University, Berlin.

INCORE Guide to internet sources on Truth and Reconciliation
Includes further links to relevant academic centres, articles, news articles, and NGOs.

The International Centre for Transitional Justice
This useful website includes information on in-country assistance in Asia-Pacific, Africa, the Americas and Europe.
The ICTJ newsletter, Transitional Justice in the News, provides regular updates on events and developments throughout the world. The entire archive can be viewed on the website at http://www.ictj.org/newsletter.asp
Full summary of ICTJ: available through the Organisation Database

The International Institute for Democracy and Electoral Assistance (IDEA)
This site includes country-specific reports on a range of countries undergoing transition and the 2 online handbooks mentioned above.
Full summary of IDEA: available through the Organisation Database

Centre for the Study of Violence and Reconciliation (CSVR)
There are many publications on a variety of relevant subjects on its publications page.

For information on transitional justice initiatives around the world:

South Africa: The website of the Truth and Reconciliation Commission
All Five Volumes of the Final Report of the Truth and Reconciliation Commission can be read at http://www.soz.uni-hannover.de/isoz/truthcom/embargo/index.htm

Sierra Leone: The Truth and Reconciliation Commission
This is the website of Sierra Leone's TRC. Its publications page features background, explanation and press briefings on the TRC and its activities. The Statute of the Sierra Leone Special Court is available at www.sierra-leone.org/specialcourtstatute.html

Rwanda: The International Criminal Tribunal for Rwanda
This official website includes general information about the tribunal, legal texts, details of cases, annual reports, and a newly introduced monthly newsletter.

Guatemala: Report of the Guatemala Historical Clarification Commission
This website houses the report of the Guatemalan Historical Clarification Commission (CEH). The full report is in Spanish, but there are English versions of the conclusions and recommendations on the website.

El Salvador: The report of the Commission on the Truth for El Salvador
This is the full version of the report of the Commission on the Truth for El Salvador. It outlines the commission's mandate, describes its findings, and makes recommendations for promoting peace and protecting human rights.

East Timor: The Commission for Reception, Truth & Reconciliation
This is the website of the Commission for Reception, Truth and Reconciliation in East Timor. The site offers background information, press releases, and links to articles on the commission by other organisations.

Former Yugoslavia: The International Criminal Tribunal for former Yugoslavia
This official site of the International Criminal Tribunal for former Yugoslavia includes press releases, basic legal texts, and information about indictments, proceedings and judgements.

International: The Statute of the International Criminal Court
This UN website houses the statute of the International Criminal Court (ICC), outlines the history of proposals for an ICC and includes a section on 'public information'.

This page was compiled with advice from Rama Mani at Justice Unlimited, Donna Pankhurst at the University of Bradford and Richard Wilson at the University of Sussex.

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