Transitional justice consists of judicial and non-judicial measures implemented in order to redress legacies of human rights abuses and foster reconciliation.
Such mechanisms "include criminal prosecutions, truth commissions, reparations programs, and various kinds of institutional reforms"[1] as well as memorials, apologies, and various art forms.
Transitional justice is instituted at a point of political transition classically from war to positive peace, or more broadly from violence and repression to societal stability (though some times it is done years later) and it is informed by a society's desire to rebuild social trust, reestablish what is right from what is wrong, repair a fractured justice system, and build a democratic system of governance.
Transitional justice broadened its scope from more narrow questions of jurisprudence to political considerations of developing stable democratic institutions and renewing civil society.
The transitional justice framework has benefited from democratic activists who sought to bolster fledgling democracies and bring them into line with the moral and legal obligations articulated in the international human rights consensus.
Recent years have also seen proposals for truth and reconciliation commissions in conflict zones of the Middle East: Israel and Palestine, Iraq, Lebanon, and the Kurdish regions.
"[5][6] According to the ICTJ, the term "transitional justice" was coined by various American academics in the 1990s to "describe the different ways that countries had approached the problems of new regimes coming to power faced with massive violations by their predecessors."
"[7] Measures used include criminal prosecutions, truth commissions, reparations and restitution programs, exhumation of mass graves, apologies, amnesty, memorials, film, literature, scientific research, rewriting school textbooks, lustration and vetting, and various kinds of institutional reforms to redress human rights abuses.
[8] The primary objective of a transitional justice policy is to end the culture of impunity and establish the rule of law in a context of democratic governance.
In the context of these goals, transitional justice aims at: In general, therefore, one can identify eight broad objectives that transitional justice aims to serve: establishing the truth, providing victims a public platform, holding perpetrators accountable, strengthening the rule of law, providing victims with compensation, effectuating institutional reform, promoting reconciliation, and promoting public deliberation.
Furthermore, hybrid courts attempt to strengthen domestic capacities to prosecute human rights abuses through the transfer of international legal skills and expertise.
[16] Apologies play a pivotal role in transitional justice processes by acknowledging historical injustices and fostering reconciliation within divided societies.
These processes aim to enable societies to examine and come to terms with past crimes and human rights violations in order to prevent their recurrence.
They can also help victims obtain closure by knowing the truth about what actually happened (such as to "disappeared" people) and understanding the atrocities they endured.
Another example is the Truth and Reconciliation Commission of Canada which was created as part of a settlement with the survivors of the Canadian Indian Residential School System.
In the context of transitional justice, they serve to honor those who died during conflict or other atrocities, examine the past, address contemporary issues and show respect to victims.
[17] One example includes the monuments, annual prayer ceremony, and mass grave in northern Uganda, created in response to the war conducted by and against the Lord's Resistance Army there.
[19] Another example is Fragmentos, an abstract memorial created by Doris Salcedo alongside the survivors of sexual abuse from the Colombian Conflict.
It consists of 1,296 tiles made from 37 tons of melted down metal from the weapons of 13,000 former guerilla fighters to memorialize the peace agreement between the government of Colombia and FARC.
Institutional reform includes the process of restructuring these state actors to ensure that they respect human rights and abide by the rule of law.
Mechanisms, such as trials, truth commissions, reparations, lustration, museums, and other memory sites have been employed either single-handedly or in a combined form to address past human rights violations.
One illuminating study in particular that has documented the dramatic new trend of transitional justice and democratization is by Kathryn Sikkink and Carrie Booth Walling (2006).
In addition, the existing judicial system might be weak, corrupt, or ineffective, and in effect make achieving any viable justice difficult.
Commenting on the International Criminal Tribunal for Rwanda that was established in 1994, he argued that it "serves to deflect responsibility, to assuage the consciences of states which were unwilling to stop the genocide... [and] largely masks the illegitimacy of the Tutsi regime".
In sum, Matua argues that criminal tribunals such as those in Rwanda and Yugoslavia are "less meaningful if they cannot be applied or enforced without prejudice to redress transgressions or unless they have a deterrent effect such as behavior modification on the part of would be perpetrators".
[28] Proponents of the "justice" school of thought argue that if all perpetrators of human rights abuses do not stand trial, impunity for crimes will continue into the new regime, preventing it from fully completing a transition from conflict.
[29] The "peace" school of thought, however, argues that the only way to effectively end violence is by granting amnesties and brokering negotiations to persuade criminals to lay down their arms.
Moreover, empirical research demonstrates that the level of a justice intervention affects the conditions of possibility for a negotiated solution to end civil war.
Christopher N. Warren, for instance, has applied transitional justice to pre-Restoration England, claiming that it helps explain how Anglican royalists convinced Presbyterians to assent to a restoration of the monarchy.
[38] It explores how countries can avoid cycles of violence and emphasizes the importance of transitional justice, arguing that it is one of the "signaling mechanisms" that governments can use to show that they are breaking away from past practices.